Lubicon Lake Indian Nation
P.O. Box 6731
Peace River, AB T8S 1S5
Phone: (403) 629-3945
Fax: (403) 629-3939
September 17, 2008
Agnes Knudsen
Reeve, Northern Sunrise County
Peace River, AB T8S 1Y9
Fax: 780-624-0023
Dear Ms. Knudsen:
Thank you for sending me a copy of your May 22, 2008 letter to federal Indian Affairs Minister Chuck Strahl urging resumption of Lubicon land negotiations and settlement of Lubicon land rights. Working relations between our two governments will be much simpler once the overriding jurisdictional dispute is resolved and our respective rights and responsibilities are mutually agreed.
Frankly I am startled by Minister Strahl’s August 28, 2008 response to your letter in which he claims that both he and his predecessor Mr. Prentice "have exchanged correspondence on a regular basis with Chief Ominayak since taking office, regarding the possibility of returning to negotiations..." In fact there has been very little "exchange" of correspondence regarding the possibility of returning to negotiations. I’ve written most of the letters and many of the letters I’ve written haven’t been answered or even acknowledged.
The easily documented facts are as follows.
I sent Mr. Prentice a detailed briefing package on Lubicon land negotiations on January 24, 2006 -- shortly before his anticipated appointment as Indian Affairs Minister. I pointed out that there had been no Lubicon land negotiations since November of 2003 when federal negotiators took the position that they had no mandate to negotiate long-outstanding Lubicon settlement issues including financial compensation and self-government. I asked that federal negotiators be given a full mandate to negotiate all outstanding settlement issues and said "the Lubicon people are prepared to start immediately and to work full time until a mutually satisfactory settlement agreement is accomplished".
Mr. Prentice never responded or even acknowledged receipt of that letter despite the fact that we arranged to have it hand delivered to his personal staff in his Ottawa office and his Calgary constituency office.
I wrote Mr. Prentice again on February 6th congratulating him on his appointment as Indian Affairs Minister, referring specifically to the detailed briefing package on Lubicon settlement issues that had been hand-delivered to his Ottawa and Calgary offices the week before, pointing out that all settlement issues are known and have been repeatedly vetted, pointing out that most of the technical work required to achieve settlement has already been done, and inviting Mr. Prentice to Little Buffalo Lake to discuss recommencement and hopefully successful completion of Lubicon land negotiations.
Hearing nothing back from Mr. Prentice I wrote him again on March 2nd and March 27th expressing concern over his lack of response to Lubicon initiatives to recommence Lubicon land negotiations. I ended my March 2nd letter as follows:
"As I indicated in the cover letter to the briefing package hand-delivered to Mr. Koop in your Calgary Constituency Office on January 27th,and subsequently to Mr. Cousineau in your Ottawa office, there is nothing on the Lubicon negotiating table that cannot be settled in short order, including financial compensation and self-government, if only federal negotiators return to the table with a mandate and instructions to negotiate all outstanding Lubicon settlement issues in good faith."
I never received a response to my letter of March 2nd despite the fact that it was also hand-delivered to Mr. Prentice’s Constituency Office in Calgary and his Ministerial office in Ottawa.
Five months later, on August 23rd, I received a response from Mr. Prentice to my letters of February 6th and March 27th. In that letter, dated August 18th, Mr. Prentice reiterated "Canada’s offer to enter into a (non-binding) Self-Government Framework Agreement pursuant to Canada’s Inherent Right Policy (under normal Canadian government programs and services independent of Lubicon land negotiations), or to include legally binding clauses in the Land Claim Settlement Agreement, agreeing to enter into self-government negotiations after (underlining added) the successful ratification of the Land Claim Agreement".
With regard to everything else, Mr. Prentice said "I am prepared to honour the offer that is currently on the table, and to resume negotiations, under the current mandate, to seek a resolution of the remaining elements of a final settlement".
I responded to Mr. Prentice’s August 23rd letter on August 31, 2006. I wrote, in part:
"...the current offer ...by the government of Canada is drafted in a way that obscures the fact that Canadian representatives are refusing to negotiate long standing settlement items with the Lubicon people.
"On financial compensation Canadian representatives first requested a Lubicon bottom line, then insisted on treating that Lubicon bottom line as the Lubicon opening position, then tabled a compensation number which they said is what they had left over after they’d compensated companies for leases and permits in our unceded traditional Territory that had been sold to those companies by the province, then took the position that they had no mandate to negotiate anything more or different than the number they had tabled.
"All of the discussions on financial compensation between Canadian representatives and the Lubicons pertained to these various maneuvers and tactics by Canadian government representatives. There were no negotiations pertaining to damages, loss of use, expropriation of natural resources, loss of benefits or any other substantive basis for financial compensation -- all of which Canadian representatives flatly refused to discuss.
"The Self-Government Framework Agreement to which your letter refers is in fact only a non-binding agenda for negotiating recognition of self-government post-settlement of Lubicon land rights. The Inherent Rights Policy under which non-binding framework agreements are negotiated includes secret Justice Department Guidelines for Federal Self-Government Negotiators on how to negotiate constitutionally recognized aboriginal self-government in bad faith -- guidelines which were in fact used by federal negotiators in their efforts to avoid negotiating a self-government agreement with the Lubicon people that would be binding on the government of Canada.
"Including "legally binding clauses in the Land Claim Settlement Agreement agreeing to enter into self-government negotiations after the successful ratification of the Land Claim Agreement" -- which Canadian representatives proposed as an alternative to negotiating a non-binding Framework Agreement, is again no more than agreement to talk about self-government post-settlement of Lubicon land rights and would not legally bind Canada to do anything but talk.
"There were no negotiations of Lubicon self-government proposals on the table in writing since 1985.
"In the end, after federal negotiators had failed in all of their various efforts to con the Lubicons into putting off negotiation of self-government until after we had ceded rights to our valuable traditional Territory, Canadian government representatives simply took the position that they had no mandate to negotiate recognition of Lubicon self-government as a part of a settlement of Lubicon land rights.
"What this all means is that Canada is in fact flatly refusing to negotiate financial compensation, and is insisting that the Lubicon people cede rights to our valuable traditional lands as a prior condition to even talking about our supposedly constitutionally protected right of self-government...
"...it is not negotiations for one party to table an offer, unilaterally proclaim it to be "fair and reasonable" and then refuse to negotiate it.
"Federal representatives have repeatedly advised us that the ‘current federal mandate’ does not allow for negotiation of financial compensation or recognition of Lubicon self-government. We have made clear from the very beginning that financial compensation and recognition of the Lubicon right of self-government are essential elements of any settlement of Lubicon land rights. There will be no settlement of Lubicon land rights until there is agreement on all outstanding settlement items including financial compensation and recognition of the Lubicon right of self-government.
"As I have indicated to you in letters dated January 24, February 6, March 2 and March 27, 2006, the Lubicon people are prepared to return to the negotiating table tomorrow. All we ask is that the government of Canada send negotiators back to the table with a full mandate to negotiate all outstanding issues in good faith. There is nothing on the Lubicon negotiating table that cannot be settled in short order, including financial compensation and recognition of the Lubicon right of self-government, if only federal negotiators return to the table with a full mandate to negotiate all outstanding settlement items and instructions to get serious about negotiating a settlement of Lubicon land rights within a prescribed period of time. Needless to say, however, a negotiated settlement of Lubicon land rights cannot be achieved if there are no negotiations."
I never received a response or even an acknowledgement of my August 31, 2006 letter to Mr. Prentice.
As indicated in Mr. Strahl’s August 28th letter to you, I did meet with Mr. Prentice in Calgary on February 2, 2007. Mr. Prentice refused to discuss the issue of mandate for federal government negotiators saying that he didn’t believe in mandates. Instead Mr. Prentice proposed "to appoint a negotiator both parties can trust, see what kind of agreement can be reached and then recommend it to Cabinet".
Mr. Prentice proposed four candidates closely associated with the Alberta government as federal negotiator. He said he’d talk to his four proposed candidates over the coming weekend about their availability and then phone me back the next week about proceeding.
The following week I received a phone call from the Alberta Regional Director General of Indian Affairs George Arcand apologizing for Mr. Prentice not phoning me as promised. Mr. Arcand explained that Mr. Prentice had not yet been able to reach everybody he wanted to talk to.
On April 18, 2007, I received a letter from Mr. Prentice dated March 30th. It said, in part:
"As I agreed in our meeting, I have contacted the two gentlemen whose names you put forward as possible candidates for the position of Chief Federal Negotiator. Mr. Ken Boutillier has agreed to participate in the file. I am prepared to offer Mr. Boutillier a contract to take on the role of Federal Representative for a period of 45 days. His mandate would be to meet with representatives of the main parties to the negotiations to determine the chances of a settlement. At the end of the 45 day period, or earlier, he would provide me with a report, including recommendations on how to proceed with the file..."
I responded to Mr. Prentice’s April 18th letter on May 8th as follows:
"I did not put forward names of possible candidates for Federal Negotiator during our meeting on February 2, 2007. You mentioned the names of four possible candidates and asked for my reaction. The names you mentioned were Alberta Provincial Judge and ex-provincial Lubicon negotiator John McCarthy, ex-Assistant Deputy Minister of Aboriginal Affairs for the Alberta government Ken Boutillier, current Assistant Deputy Minister of Aboriginal Affairs for the Alberta government Neil Reddekopp, and Edmonton lawyer Jerome Slavik. Although these people are all familiar to us and we have views on them, I told you the Lubicon people are prepared to negotiate with whomever you appoint just as long as your representative has a mandate to negotiate all outstanding settlement issues including self-government and financial compensation.
"You told me you don’t believe in mandates and proposed to appoint a negotiator both parties could trust to see what kind of agreement could be reached and then, assuming agreement can be reached, to recommend it to Cabinet. You said you’d talk to your proposed candidates about their availability and phone me back the next week about proceeding. George Arcand phoned me the following week with your apologies for not calling me saying that you had not yet been able to reach everybody you wanted to talk to.
"You now propose "to offer Mr. Boutillier a contract to take on the role of Federal Representative for a period of 45 days...(with a)...mandate to meet with the representatives of the (unspecified) main parties to the negotiations to determine the chances of settlement". This is a different proposal than we discussed on February 2nd.
"The Lubicon people don’t accept the position that negotiating a settlement of Lubicon land rights is a matter of choice for the federal government while the Alberta government and the resource companies proceed as they please in Lubicon Territory. If that is your position, and your position is further that settlement is not possible unless the Lubicons simply accept the settlement offer made to the Lubicons by the government of Canada on a "take-it-or-leave-it" basis, then nothing has changed that would help us move beyond the current impasse.
"Moreover, while we don’t question your right to appoint whomever you please to represent the federal government in Lubicon settlement negotiations, we don’t consider Mr. Boutillier to be an unbiased independent expert upon whom all parties can rely to produce an unbiased independent assessment of the chances of settlement. Mr. Boutillier has had a close, well-known, long-term involvement in a senior capacity with the Lubicon issue on behalf of the Alberta government and he is not an unbiased independent expert.
"As I indicated when we met on February 2nd, the Lubicon people are prepared to meet with whomever you appoint to represent you in Lubicon settlement negotiations. But neither Canada nor the Lubicons has the option of not seeking a settlement of Lubicon land rights. Canada has a constitutional obligation to resolve the issue of aboriginal title in Lubicon Territory and to ensure that the aboriginal and land rights of the Lubicon people are respected. Lubicon leaders have a responsibility to our children and grandchildren to try and satisfactorily resolve this situation. We trust, therefore, that your representative will be prepared to explore how, not if, a mutually acceptable settlement of Lubicon land rights can be achieved."
I never received a response or even an acknowledgement from Mr. Prentice to my letter of May 8, 2007.
Eight months later, on January 30, 2008, I received a letter from Mr. Strahl dated January 16, 2008. It says:
"This is in response to your correspondence of May 8, 2007, addressed to my predecessor, in which you respond to his suggestion to hire a Federal Representative to meet with representatives of the main parties (Lubicon Lake Indian Nation, Alberta and Canada) to the negotiations to determine the chances of settlement. You mentioned in your letter that you did not agree that the proposed candidate for the position, Mr. Ken Boutillier, is an independent expert, given his prior involvement with the file as an employee of the Alberta government.
"I have given your comments full consideration, and would like to inform you that I am proposing to enter into a contract with Mr. Michael Coyle as my Federal Representative to carry out the work referred to above. I am assured that Mr. Coyle has had no involvement with your file...Please let me know if you are in agreement with my appointment of Mr. Coyle as Federal Representative, and whether you will participate in the proposed process."
I responded to Mr. Strahl’s January 16th letter on February 6th as follows:
"Thank you for your letter of January 16, 2008 responding to the letter I sent to Mr. Prentice on May 8, 2007. I apologize for not responding to your letter sooner but it did not arrive until January 30th and the Lubicon people have been very busy trying to deal with pressing problems in our community due in no small measure to minus 40° temperatures combined with the lack of basic services about which I wrote you last week.
"You have apparently been misinformed about the Lubicon position on Mr. Prentice’s proposal to appoint Mr. Boutillier. While we don’t consider Mr. Boutillier to be an independent expert upon whom the parties might rely for an unbiased assessment of the chances for achieving a settlement of Lubicon land rights, we did not take issue with the appointment of Mr. Boutillier but with the mandate Mr. Prentice was proposing to give to Mr. Boutillier.
"Mr. Prentice and I met in Calgary on February 2, 2007 to discuss recommencement of Lubicon land negotiations. He and I did not agree, as I made clear in my May 8th letter, to the appointment of "an independent expert to determine the chances of a settlement". We agreed that Mr. Prentice would appoint a federal negotiator to negotiate a settlement of Lubicon land rights.
"During the meeting on February 2nd Mr. Prentice put forward the names of four possible federal negotiators, including Mr. Boutillier. I told Mr. Prentice, and I say to you now, that the Lubicon people are prepared to negotiate with whomever the federal government appoints -- including Mr. Coyle -- just as long as the federal negotiator is given a mandate to negotiate all outstanding Lubicon settlement issues including self-government and financial compensation. (In this regard I would point out that self-government and financial compensation have both been on the table for negotiation as part of any settlement of Lubicon land rights since at least the early 1980’s; that then Indian Affairs Minister David Crombie agreed to their inclusion as settlement items in 1984; that they were included as part of the discussions with Mr. Fulton in 1985-86; that in November of 1988 Prime Minister Mulroney’s Chief of Staff Derek Burney agreed in writing that self-government and financial compensation would be included as issues to be settled as part of any settlement of Lubicon land rights, and that both self-government and financial compensation were demonstrably on the agenda in writing for negotiation from the very beginning of the last round of Lubicon land negotiations.)
"Mr. Prentice responded to my comments on the need for a federal mandate to negotiate all outstanding issues by telling me that he didn’t believe in mandates. Instead he proposed to appoint a federal negotiator both parties could trust to see what kind of agreement could be reached and then, assuming agreement could be reached, he said he would recommend it to Cabinet. He said that he’d talk to his proposed candidates for federal negotiator over the coming weekend and then phone me the following week about proceeding with negotiations.
"I did not hear from Mr. Prentice the following week but I did receive a phone call from George Arcand, Director General of the Alberta Regional Office of Indian Affairs, who had attended the February 2nd Calgary meeting with Mr. Prentice. Mr. Arcand offered me Mr. Prentice’s apologies for not phoning as promised explaining that Mr. Prentice had not phoned because Mr. Prentice had been unable to reach everybody to whom Mr. Prentice wanted to talk.
"On April 18, 2007 I received the attached letter from Mr. Prentice dated March 30, 2007 in which Mr. Prentice proposed to give Mr. Boutillier a 45 day contract ‘to meet with representatives of the (unspecified) main parties to the negotiations to determine the chances of a settlement’. It was this April 18th letter from Mr. Prentice to which I was responding in my letter of May 8, 2007.
"In my May 8th response to Mr. Prentice I reiterated the Lubicon position that the Lubicon people are prepared to meet with whomever the federal government sends to the table to negotiate all outstanding settlement issues. I indicated that neither Canada nor the Lubicons have the option of not seeking a settlement of Lubicon land rights. I pointed out that Canada has a constitutional obligation to resolve the unsettled issue of aboriginal land title in Lubicon Territory which Canada cannot defer because the aboriginal and land rights of the Lubicon people are being abused and, in addition to having exclusive constitutional responsibility for dealing with aboriginal land rights, Canada has a constitutionally mandated fiduciary responsibility to ensure that the aboriginal and land rights of the Lubicon people are respected. On the Lubicon side, I said, Lubicon leaders have a responsibility to our children and grandchildren to try and achieve a satisfactory settlement of Lubicon land rights as quickly as possible. I said the Lubicon people therefore trust that any federal representative will be prepared to explore how, not if, a mutually acceptable settlement of Lubicon land rights can be achieved."
I never received a response or acknowledgement to my February 6, 2008 letter to Mr. Strahl.
Specifically with regard to Mr. Strahl’s comments on the proposed Sunrise County pipeline, I am amazed by Mr. Strahl’s claim to be "confused as to why the settlement of (Lubicon land rights) would have any bearing on extending the (Sunrise County) pipeline to Little Buffalo", and by his claim to be "unaware of any issues...that would prevent the Lubicon people from accessing the Regional (water pipeline)".
I wrote Mr. Strahl a letter on January 30, 2008 reviewing the Lubicon water situation at some length including the issue of the proposed Sunrise County pipeline -- to which Mr. Strahl notably did respond 8 months later in a hand-delivered letter dated August 13, 2008. It is frankly hard to imagine how Mr. Strahl could possibly acknowledge and answer that detailed January 30th letter and still be "confused as to why the settlement of (Lubicon land rights) would have any bearing on extending the (proposed Sunrise County) pipeline to Little Buffalo", and be "unaware of any issues that would prevent the Lubicon people from accessing the Regional line". (A copy of my January 30, 2008 letter to Mr. Strahl is attached for your information.)
Mr. Strahl’s August 13th letter was hand-delivered by his Alberta Regional Director General of Indian Affairs George Arcand during a meeting in Little Buffalo on August 14, 2008. During that meeting Regional Office officials proposed to test local water sources, including one that had been tested in 1999 as part of Lubicon land negotiations, claiming -- not very credibly -- that their willingness to test (and re-test) local sources of water proved that they were not trying to trick the Lubicons into eventually hooking up to the proposed Sunrise County pipeline with their latest proposal to truck in water from Peace River -- at considerably greater cost than developing a local Lubicon water treatment and sewage disposal facility -- pending completion of a national evaluation of water and sewer services that might hopefully at some point in the future make more money available that could be used to provide the Lubicons with a local water treatment and sewage disposal facility.
How that squares with what Mr. Strahl wrote you on August 28th -- two weeks later -- regarding how delighted he is to hear about the potential for the proposed Sunrise County pipeline providing the Lubicons with water is an interesting question -- especially when his officials are known to have been helping to finance the planning of the proposed Sunrise County pipeline since at least 2003, are known to have been participating in the planning of the proposed Sunrise County pipeline since at least 2003, and are known to have made a commitment of more than a million dollars to possible construction of the proposed Sunrise County pipeline.
All of which leads me back to the comment I made in the first paragraph of this letter about how working relations between our two governments will be much simpler once the overriding jurisdictional dispute is resolved -- something that will not be accomplished until the federal government sends negotiators to the table with a mandate to negotiate all outstanding settlement issues and instructions to negotiate a settlement of Lubicon land rights in good faith -- rather than to just to buy time while they continue trying to undermine Lubicon land rights, jockey for political position and play public relations games.
It is with that view in mind I again thank you on behalf of the Lubicon people for your letter to Mr. Strahl urging resumption of Lubicon land negotiations and settlement of Lubicon land rights. For as frustrated representatives of resource companies say to us all the time -- whose interests are of course also adversely affected by the continuing jurisdictional dispute -- there will never be a negotiated settlement of Lubicon land rights without negotiations sincerely intended to reach agreement.
Sincerely,
Original Signed by
Bernard Ominayak
Chief
Lubicon Lake Indian Nation
cc:The Hon. Chuck Strahl
Chris Warkentin, ML
The Hon. Gene Zwozdesky, MLA
Frank Oberle, MLA
Pearl Calahasen, MLA
Brian Mason, MLA
Scott Fitzpatrick