This document is a follow-up submission containing information from the Government of Canada to update the United Nations Human Rights Committee on the implementation of the Committee’s Views in Communication No. 167/1984, a communication submitted by Chief Bernard Ominayak and the Lubicon Lake Cree. A request for follow-up information in respect of this communication was transmitted to the Government of Canada by letter dated 11 January 2006 (reference: G/SO 215/51 CANA Follow-up).

This follow-up submission seeks to provide the Human Rights Committee with information on the present situation of the Lubicon Lake Cree generally, on their ability to engage in traditional activities of hunting and fishing in light of resource development activities, on consultation processes in respect of resource development that may affect the interests of the Lubicon Lake Cree and on the current state of the negotiations between the Government of Canada and the Lubicon Lake Cree.

This follow-up submission will not attempt to describe in detail the course of negotiations with the Lubicon Lake Cree. Instead, a summary of the issues and their current status is provided together with observations on the challenges that are impeding settlement. The Government of Canada is negotiating in good faith and is making every effort to reach a settlement with the Lubicon Lake Cree; it continues to work toward a fair resolution of the claims of the Lubicon Lake Cree. The Government of Canada does not wish to jeopardize the chance that negotiations with the Lubicon Lake Cree may resume at some point in the future.

As will be explained in greater detail in Part V of this follow-up submission, the negotiators for the Lubicon Lake Cree, the Government of Canada and the Province of Alberta had, in 2003, reached substantial agreement on many aspects of the Lubicon Lake Cree claim, including the location and amount of land and the details for the building of a new community at Lubicon Lake. The offer from the Government of Canada in 2003 exceeded the terms that were deemed by the Human Rights Committee in 1990 to be appropriate to rectify the threat to the rights of the Lubicon Lake Cree under article 27 of the International Covenant on Civil and Political Rights (the Covenant).

The parties failed to complete a settlement in 2003 largely because of disagreements over two aspects of the negotiations. Negotiators for the Lubicon Lake Cree did not accept the increased amount of settlement money on offer and rejected the Government of Canada’s approach to the self-government aspect of the claim. The negotiators for the Lubicon Lake Cree are pursuing an "all or nothing" approach to their claim and are currently refusing to return to the negotiating table unless they can negotiate their self-government objectives on their terms. The issue of self-government does not fall within the scope of article 27 of the Covenant, nor was it an aspect of the 1990 decision of the Human Rights Committee.

While the Government of Canada is committed to a resolution of the Lubicon Lake Cree claim that is fair to all parties, it cannot compel the Lubicon Lake Cree to return to the negotiating table to discuss their claim or to accept the Government of Canada’s settlement offer.

In this submission the Government of Canada will employ the Canadian terms "Aboriginal people" and "First Nation" and "Indian" to refer to indigenous people in Canada, including the Lubicon Lake Cree. Whenever possible, references to land quanta are expressed as hectares in the text of this submission; references in maps and elsewhere to square miles or square kilometres have been converted. Three maps are appended to this submission in both hard copy and electronic versions. In order to see the maps in greater detail and to be able to read them more clearly, it is advisable to use the electronic version and magnify the size by using the "zoom feature" in Adobe Reader to expand the map to 125% or 150%.

The Lubicon Lake Cree are part of the Cree Aboriginal people living in Canada in an area of the north central part of what is now the Province of Alberta.

Map #1

Map #1 highlights the location of the Province of Alberta within Canada.

Map #2

Map #2 shows the Province of Alberta in greater detail. The area within the thick red line (commonly referred to as the "tear drop"), consisting of 924,300 hectares of land, is claimed by the Lubicon Lake Cree as the area they traditionally used / use. The land that is claimed by the Lubicon Lake Cree also has been and is used by Aboriginal people of other communities for their traditional activities of hunting and fishing, as well as for commercial scale trapping of fur bearing animals.

Map #2 shows blocks of land in red. The red blocks signify the lands selected by negotiators for the Lubicon Lake Cree as the lands to be reserved for the exclusive use of the Lubicon Lake Cree ("Proposed Reserve Land"). The location and size of these blocks of Proposed Reserve Land remain largely as they were in 1990. Some changes have occurred in response to requests of the negotiating team for the Lubicon Lake Cree. Map #2 also shows, in black, the location and relative size of the Reserve Lands of other Cree communities as well as other First Nations in Alberta.

Map #3

Map #3 shows the area of the "tear drop" in greater detail. The blocks of land making up the Proposed Reserve Land for the Lubicon Lake Cree are marked in red on this map also. The largest block of land is at Lubicon Lake; it covers 28,650 hectares. This block includes land at Little Buffalo Lake (a smaller lake at the northwest corner of the largest block; it is not visible on Map #2). About half the members of the Lubicon Lake Cree are currently residing on public (Crown) land in a community called Little Buffalo. The land on which the community of Little Buffalo is located was added fairly recently to the Proposed Reserve Land at the request of the Lubicon Lake Cree, so that the location of their current community could be included as part of the eventual settlement of their claim. There are two smaller blocks of Proposed Reserve Land to the north of Lubicon Lake at Haig Lake (1,211 hectares) and at Bison Lake (616 hectares).

For a sense of the size of the land at Lubicon Lake (28,650 hectares) that is proposed for the exclusive use of the Lubicon Lake Cree (approximately 500 people), one can consider the city of Frankfurt, Germany (population of 660,000 in 2006) which covers 24,831 hectares. Note that the right of treaty beneficiaries to hunt and fish for food, as discussed below in Part III, is not restricted to their Reserve Land but rather extends to all unoccupied public (Crown) land in the Province of Alberta.

Map #3 also shows the location of the closest Reserve Lands to those proposed for the Lubicon Lake Cree. The areas of land marked in green (on the electronic version of the map) show the Reserve Land of the Woodland Cree. These lands lie to the north and northwest of Lubicon Lake. Some of the Reserve Land of the Woodland Cree is within the lands claimed for traditional use by the Lubicon Lake Cree. The area of land marked in purple shows the Reserve Land of the Loon River Cree. The bulk of the Reserve Land of the Loon River Cree lies to the east and northeast of Lubicon Lake. One small portion is within the lands claimed for traditional use by the Lubicon Lake Cree. Map #3 also shows the two roads in the area as thin red lines. There are no other paved roads. There are no major settlements, towns or cities in this area. The closest town, Peace River, is a town of 6000 people some 100 kilometres west of Lubicon Lake.

The Lubicon Lake Cree include individuals who have status under the Indian Act and others who may have joined the group through marriage, birth into an ethnically-mixed family, acceptance or other means. As of May 31, 2006, there are 405 persons with Indian status that identify as members of the Lubicon Lake Cree. According to the submission of the Lubicon Lake Cree to the Human Rights Committee on the occasion of the presentation of Government of Canada’s fifth report in October 2005, there are approximately 500 members of this group. According to Alberta: First Nations Population Summary (December, 2003), the Lubicon Lake Cree make up 0.4 per cent of the Aboriginal population of Alberta.

The Lubicon Lake Cree population is young and growing. The number of individuals who have registered with the Government of Canada as members of the Lubicon Lake Cree has increased from a total of slightly more than 100 in the early 1970’s to more than 400 individuals on the Indian Registry in 2006. In 2005/06, one quarter of the population (121 Lubicon Lake Cree children and young people) was enrolled in school from the primary year through to grade 12, the final year of secondary school (high school). Three members of the Lubicon Lake Cree attended post-secondary institutions in 2005/06.

The Lubicon Lake Cree are an Indian Band within the meaning of the Indian Act. They have their own membership code from which they determine who is eligible to vote in their elections. They govern themselves through an internally elected Band Council. The Band Council administers or manages a variety of programs and services for their members.

The Government of Canada provides funds annually to the Lubicon Lake Cree to assist them to administer various local programs and services, including elementary, secondary and post-secondary education, housing, economic development, social services, human resource development (training in skills for the labour market), health services and infrastructure development and maintenance, as well as assistance with the costs of local Band government. The total amount of annual funding paid to the Lubicon Lake Cree for these programs and services in 2004/05 by the Government of Canada was $3,445,955.00 Canadian dollars.

Annual funds paid to the Lubicon Lake Cree are in addition to, and not related or tied to, the quantum of money that would be paid to the Lubicon Lake Cree as part of the settlement of their claim.

Generally speaking, natural resources are matters that fall within provincial jurisdiction under the Canadian Constitution. It does not appear that the development of natural resources in the Province of Alberta is preventing the Lubicon Lake Cree from pursuing their traditional activities of hunting and fishing within the area claimed to be traditionally used by them for these activities.

It does not appear there has been extensive logging in the area of land claimed by the Lubicon Lake Cree as traditional use territory (the "tear drop") in the years since the 1990 decision of the Human Rights Committee. According to documents available on the internet, the principal holder of rights to log timber within the "tear drop", DMI/Daishowa-Marubeni International Ltd., has made a formal commitment to the Lubicon Lake Cree to refrain from harvesting or purchasing timber in this area until a land settlement is reached with the Government of Canada or the area of the land claim is adjusted by the Lubicon Lake Cree.

Oil and gas resource exploration and development have been ongoing within the lands claimed by the Lubicon for traditional use since 1990. According to documents available on the internet, Deep Well Oil & Gas and its partners recently announced plans to develop oil sands leases in the Sawn Lake area of Alberta, on lands within the area claimed for traditional use by the Lubicon Lake Cree. Test wells have been drilled and preliminary results have been positive. In October 2005, two operating partners, Surge Global Energy and Pan Orient Energy, signed an agreement with the Lubicon Lake Cree giving them a say in oil drilling on the land which they claim. These companies have indicated that the Lubicon Lake Cree will be consulted by them on future drilling plans before they apply to the Province of Alberta for further permits.

Logging and oil and gas extraction is not occurring within the Proposed Reserve Land of the Lubicon Lake Cree. In 1991, in order to protect the land from further development, the Province of Alberta placed a "holding reservation" designation on the lands which had been selected by the representatives of the Lubicon Lake Cree at that time (largely the block of land at Lubicon Lake). This designation has prevented the issuance of any new agreements or licenses to third parties in respect of the Proposed Reserve Land. The minerals underlying the Proposed Reserve Land have been withdrawn from further disposition. Holders of logging rights and oil and gas rights which pre-date 1991 have agreed not to develop their existing interests (licenses in respect of these lands) pending the outcome of negotiations with the Lubicon Lake Cree. In addition, the Government of Canada and the Province of Alberta have purchased the majority of the few remaining oil and gas interests to avoid any complications with the land aspect of the negotiations and to ensure that the transfer of the Proposed Reserve Land to Reserve Land for the Lubicon Lake Cree can be done as expeditiously as possible.

Wildlife management and conservation, generally speaking, are matters that fall within provincial jurisdiction under the Canadian Constitution. Accordingly, hunting and fishing are monitored and managed through laws and policy of the Province of Alberta.

The Lubicon Lake Cree have a constitutionally protected treaty right to hunt, trap and fish for food. Although the Lubicon Lake Cree do not consider themselves bound by Treaty 8, many of their members are considered to be treaty beneficiaries and, as such, enjoy the hunting, fishing and trapping rights guaranteed under Treaty 8 and the Canadian Constitution.

By law, Indians who are treaty beneficiaries in Alberta may hunt for food 365 days of the year on unoccupied public (Crown) lands and other lands to which the Indians have a right of access within the province. The Indian harvest of wildlife for food is subject to justifiable conservation and safety regulations and it is expected that the frequency of hunting for food is based on need. Non-treaty residents of Alberta are restricted to hunting during the season applicable to the animal they wish to hunt.

It is the understanding of the Government of Canada that the Province of Alberta attempts to monitor and maintain the health of all animal species in Alberta. The levels of allowable harvest for individuals obligated to have hunting licenses are adjusted yearly to reflect any changes in animal populations. For example, a detailed study of moose, which are one of Alberta’s most commonly hunted animals, indicates that the numbers are increasing. The study, commenced in 1993, indicates that moose populations in the majority of Alberta regions were at capacity. A few regions were significantly below capacity and steps were taken by the Province of Alberta in that regard. As of 1995-96, moose populations have improved in the area claimed as traditional territory used by the Lubicon Lake Cree.

By law, Indians who are treaty beneficiaries may fish for food anywhere in the Province of Alberta unless a restriction has been imposed in order to protect a particular species or habitat. All Albertans are required to obtain a licence to fish. There is no cost for licences for treaty Indians. However, Indians are required to abide by the fishing regulations (which include daily quotas of allowable catch per species per day) that are imposed through these licences for conservation purposes.

Fish resources in Alberta are monitored and managed through the use of licences and other special measures. Fish species may be either harvested or stocked (fish replacement) in the various bodies of water (rivers, lakes and streams, etc.) depending on whether the fish populations are increasing or decreasing. Licenses may be restricted where a lake or other body of water requires stocking. For fish conservation purposes, some lakes may be closed to fishing during fish spawning season.

It is the understanding of the Government of Canada that in the wildlife region that encompasses the area claimed by the Lubicon Lake Cree as traditional territory, fish populations are currently considered by the Province of Alberta to be in balance. Some species of fish (pike) are not considered pressured and other species (perch and walleye) are currently considered to be abundant. Walleye has been stocked in 3 of the 5 major lakes in the area claimed for traditional use by the Lubicon Lake Cree.

The long term conservation of wildlife and wildlife habitat has been identified as a priority by the Province of Alberta. The variety and availability of animals and fish are seen as important for all the people of Alberta; they are understood to be of significant value for tourism. The Province of Alberta promotes itself as a prime tourist destination for sport hunting and fishing. The Alberta government works to ensure wildlife and wildlife habitat are protected and conserved, and Indians, including the Lubicon Lake Cree, who enjoy a legal priority over the harvesting of wildlife for food, share in the benefits of this approach.

The Lubicon Lake Cree may participate in trapping as an economic activity on the same basis as all other Albertans. The commercial trapping of furbearing animals has been pursued in western Canada since the mid-1600s. Trapping was encouraged by the trade in furs that developed between European and Aboriginal people in Canada. The fur trade helped to open the west to exploration and is said to have helped build the country that is now Canada.

Trapping of furbearing animals continues today in the Province of Alberta. There are approximately 2,300 trappers in Alberta. Of this number, 1,600 conduct their trapping on 1,700 Registered Fur Management Areas (RFMAs), which are parcels of public land for which licences for use are allocated to trappers by the Province of Alberta. In 2000/01, wild fur with a value of $2.1 million Canadian dollars was harvested by trappers in Alberta.

The area claimed by the Lubicon Lake Cree as traditional territory is entirely covered by Registered Fur Management Areas. There are approximately 67 RFMAs in the area and the rights to trap within them are held by various individuals, including members of the Lubicon Lake Cree, the Loon River Cree, the Woodland Cree, the Whitefish Cree and non-Aboriginal individuals. The Lubicon Lake Cree are best situated to provide the Human Rights Committee with greater detail concerning the location and use of trap lines by their members.

A settlement of the claims of the Lubicon Lake Cree will not restrict their members to hunting, fishing or trapping only within their Proposed Reserve Land. They will continue, as they do now, to have the constitutional right as treaty beneficiaries to hunt and fish for food on all unoccupied public (Crown) land and, on the same basis as non-Indians in Alberta, to trap furs on RFMAs for commercial sale.

Logging and oil and gas extraction are important elements of the modern economy of the Province of Alberta. Forests and oil and gas reserves, as natural resources, are matters that fall within provincial jurisdiction under the Canadian Constitution. Logging and oil and gas extraction in Alberta is regulated by the provincial government.

Since 1995, the Alberta Energy and Utilities Board (EUB), a quasi-judicial provincial government body, has been regulating the development of energy resources in Alberta, including oil, natural gas, oil sands, coal and electrical energy, as well as the pipelines and transmission links required to move the resources to market. The EUB is tasked with ensuring that the discovery, development and delivery of Alberta resources take place in a manner that is fair, responsible and in the public interest.

Public consultations, including consultations with Aboriginal people and groups, are an important aspect of the regulatory function of the EUB.

When a license for development is sought by a company, the EUB requires the applicant for the license to demonstrate third party involvement or participation. This involvement must begin before the licence application can be filed and continues through the life of a project. When a company proposes a project (for oil extraction, for example), it must provide information packages to all potentially affected individuals and groups. The EUB has strict guidelines for consultation of those who may be affected. An individual or group which does not come within the consultation parameters set by the EUB may still raise concerns which the applicant company must address prior to filing an application. Concerns can also be raised at any time through the life of a project.

It is the understanding of the Government of Canada that if concerns with a proposed project cannot be resolved prior to filing an application to permit a development project, the applicant company can file a non-routine application and simultaneously initiate an alternative dispute resolution process with the unsatisfied affected individual or group. Non-routine applications signify that there are outstanding objections that have not been resolved at the time of filing. It is expected that cooperative efforts will be made by all interested and affected parties to address concerns and solve problems.

In relation to the matter at hand, an agreement was signed between the Lubicon Lake Cree and the operating partners of Deep Well Oil & Gas (Surge Global Energy and Pan Orient Energy) in October, 2005. It is our understanding that the agreement gives the Lubicon Lake Cree a say in oil drilling on land within the territory claimed for its traditional use and a commitment for further consultation regarding future plans before the companies apply to the EUB for further development permits.

In May 2005, the Province of Alberta introduced a new policy, the First Nations Consultation Policy on Land Management and Resource Development, specifically to address consultations with Aboriginal people. Alberta is currently engaged with industry and First Nations in the development of the various guidelines required by each government ministry in order to fully implement the new policy. It is our understanding that at every step in the development of this new consultation process, efforts have been made by the Alberta government to engage each of the First Nations in Alberta, including the Lubicon Lake Cree, and to engage industry.

In 1989, following a number of years of thorough negotiations regarding the claim of the Lubicon Lake Cree, the Government of Canada presented a formal offer to the Lubicon Lake Cree with a view to satisfying Canada’s obligations pursuant to Treaty 8. The Human Rights Committee found in 1990 that this offer was appropriate to rectify the threat to their rights under article 27 of the Covenant that the Lubicon Lake Cree perceived from proposed resource development in and around their traditional hunting and fishing areas. However, the 1989 offer was not accepted by the Lubicon Lake Cree.

The Lubicon Lake Cree claim includes a number of aspects involving not only land issues, but issues of membership (and therefore of eligible beneficiaries of any settlement), monetary compensation, the construction of a new community, economic development capacity and self-government.

The Canadian government is involved in negotiations to settle many Aboriginal claims of different types and of various levels of complexity. As an elected government in a democratic country founded on the rule of law, the Government of Canada must negotiate all claims, including all Aboriginal claims, within a legal and economic framework. Each type of claim has its corresponding rules and criteria to ensure that claims are negotiated and settlements are achieved in a consistent manner. The Government of Canada employs professional negotiators who come from inside and outside of government.

As explained in the documents submitted to the Human Rights Committee during its consideration of Communication No. 167/1984, the land at issue in the Lubicon Lake Cree claim lies within the territory covered by Indian Treaty 8. The land rights of the Lubicon Lake Cree, therefore, are governed by Treaty 8. As such, some aspects of the Lubicon Lake Cree claim fall within the Specific Claims Policy.

The Lubicon Lake Cree have never received their Reserve Land pursuant to Treaty 8. Due to the nomadic lifestyle of the Cree Indians living in northern Alberta in 1899, the year Treaty 8 was concluded, it was not unusual for groups of the Cree to delay their request for Reserve Land. Once they decided to settle their community into a fixed location in the 1930’s, the Cree Indians living at Lubicon Lake petitioned the Canadian government for Band status under the Indian Act and for Reserve Land according to the terms of Treaty 8. Unfortunately, in part due to the onset of World War II, the land agreed to in 1939 was never transferred to become Reserve Land for the Lubicon Lake Cree. Since the 1980’s, with the onset of interest in major resource development projects in northern Alberta, the Government of Canada has been working towards reaching a settlement of the land claims of the Lubicon Lake Cree.

Two other Cree groups made requests for Band status and Reserve Land pursuant to Treaty 8 in the late 1980’s. Canada has settled these claims based on the land formula under Treaty 8. As noted above, Map #3 shows the Reserve Lands of the Loon River Cree and the Woodland Cree, created during the 1990’s following successful completion of negotiations.

The blocks of Proposed Reserve Land, marked in red on Map #2 and Map #3, represent the lands chosen and agreed to by the negotiators for the Lubicon Lake Cree. The amount of land included in the current blocks of Proposed Reserve Land exceeds the amount that was offered in 1989 and found acceptable to the Human Rights Committee in its 1990 decision in respect of this communication.

The 1989 offer included the setting aside of 24,604 hectares (95 square miles) of land as Reserve Land for the exclusive use of the Lubicon Lake Cree. The largest block of land currently on offer covers 28,650 hectares.

There is substantial agreement on this aspect of the claim (land location and quantum). The exact placement of the land boundaries and the resolution of third party interests must be completed before the land choices can be finalized.

The amount of settlement money is one of the two major elements of disagreement preventing a full settlement of all aspects of the Lubicon Lake Cree claim. The Lubicon Lake Cree‘s claim is for a sum of money greater than that offered by the Government of Canada.

In 1989, an offer of $45 million Canadian dollars was made to the Lubicon Lake Cree by the Government of Canada. The offer included $34 million to construct a new community and $11 million for a Special Development Plan to assist the economic development interests of the Lubicon Lake Cree.

The amount of settlement money currently on offer is greater than that which was offered in 1989 and which was found acceptable to the Human Rights Committee in its 1990 decision in respect of this communication. The current offer is greater both because it has been adjusted for inflation and because is a greater amount in real terms. The offer has been enhanced to include more resources to construct the new community, a separate amount in respect of economic development and additional compensation to reflect the fact that the Lubicon Lake Cree have not had their Reserve Land.

Since the 1980’s, the Lubicon Lake Cree have sought through negotiations the construction of a new community at Lubicon Lake. The Government of Canada has agreed to meet this request since the formal settlement offer in 1989.

Over more than five years of negotiations, the Lubicon Lake Cree and the Government of Canada worked out detailed plans for the building of a new community for the Lubicon Lake Cree at Lubicon Lake. This new community is to be located where the Lubicon Lake Cree were residing in 1939, prior to their voluntary move to the community of Little Buffalo. A new community at Lubicon Lake will cost almost twice as much as an upgrade to the current community at Little Buffalo,

In 2003, the Lubicon Lake Cree began to express the wish to have some of their members, particularly their elders, remain at Little Buffalo. The Government of Canada has agreed that the terms of settlement also would include upgrades to the community in Little Buffalo.

Economic development plans have been an aspect of the negotiations. The Lubicon Lake Cree appreciate the potential for resource development within their Proposed Reserve Land (particularly oil and gas extraction) to advance their economic development and self-sufficiency. A component of the compensation offer to the Lubicon Lake Cree in 2003 included financial support from the Government of Canada and the Province of Alberta for a number of economic development proposals put forward by the Lubicon Lake Cree.

Self-government is the other major element of disagreement preventing a full settlement of all aspects of the Lubicon Lake Cree claim. Beginning in the summer of 2003, negotiators for the Lubicon Lake Cree indicated that no settlement of the land claim could be reached without addressing their self-government objectives. During the latest round of negotiations, agreement could not be reached on the self-government aspect of the Lubicon Lake Cree claim because of a fundamental difference in the negotiating approach between the parties.

The mandate for the negotiators representing the Government of Canada authorizes the negotiation of a self-government framework agreement with the Lubicon Lake Cree pursuant to the existing policy of the Canadian government for negotiating self-government with Aboriginal groups. Negotiations under this policy follow a process involving protocols, framework agreements, agreements in principle, and finally a legally enforceable final agreement. From the perspective of the Government of Canada, the negotiations to date with the Lubicon Lake Cree on the issue of self-government have been conducted in a manner consistent with its policy on the negotiation of self-government agreements with all Aboriginal groups.

Under its self-government policy, Canada negotiates practical governance arrangements to reflect the particular circumstances of the specific Aboriginal group. The Government of Canada’s policy on self-government provides a process to negotiate agreements setting out the aspects of governance that will fall within the authority of the Aboriginal group (local governance), those that remain within the jurisdiction of the provincial or federal levels of government (as determined by the Canadian Constitution), and the interrelationships between these jurisdictions.

The negotiators for the Lubicon Lake Cree have rejected this approach. Instead, they have indicated that the Government of Canada should acknowledge a Lubicon Lake Cree right to self-government before the scope of that right, or the terms for its exercise within the Canadian federation, have been worked out by agreement. The Government of Canada will not agree to this approach as it would be inconsistent with the process for negotiations on self-government with other Aboriginal groups.

The Lubicon Lake Cree are asking the Government of Canada to acknowledge a constitutionally protected Aboriginal right to self-government at the outset, with an agreement to negotiate the details concerning the content or scope of that right at some later date. While the Government of Canada has acknowledged that self-government is an aspect of Aboriginal rights within the meaning of s.35 of the Constitution Act, 1982, Canada’s approach to the negotiation of self-government is not a process for the recognition of Aboriginal rights of self-government for any specific group. As such, the Government of Canada does not require proof of the existence or scope of the Aboriginal right of self-government of the particular Aboriginal group before engaging in self-government negotiations, nor does the Government of Canada acknowledge, through the negotiation process, an Aboriginal right to self-government for any specific group. The Canadian government focuses its efforts on arriving at the legal agreements necessary to making local governance authority (for the particular Aboriginal group) work within the larger structure of the Canadian Constitution.

As discussed above in Part II, the Lubicon Lake Cree already exercise some local governance authority. Successful completion of self-government negotiations result in group-specific agreements concerning the scope of authority for local governance.

The negotiators for the Lubicon Lake Cree have indicated that they will not agree to resume negotiations on other aspects of their claim until the Government of Canada changes its approach to negotiating the self-government aspects of their claim.

Negotiators for the Government of Canada have a mandate from the federal Cabinet to settle, pursuant to Treaty 8, all aspects of the Lubicon Lake Cree land claim. In addition, the mandate includes authority to negotiate the funds to construct a new community for the Lubicon Lake Cree and to negotiate a framework agreement for their self-government, which is the first step in the negotiations toward a self-government agreement.

During the last round of negotiations, which ended in a stalemate in November 2003, substantial agreement was reached between the Lubicon Lake Cree, the Province of Alberta and the Government of Canada on many issues, including the determination of membership (and therefore who would be included as beneficiaries of the agreement), land quantum (including land selections at three sites as indicated on Map #2 and Map #3), and all the details related to the construction of a new community at Lubicon Lake. The Government of Canada and the Province of Alberta also made an improved joint financial offer to the Lubicon Lake Cree.

From the perspective of the Government of Canada, the global offer was fair both in respect of the Lubicon Lake Cree and in light of settlements with other First Nations that are parties to Treaty 8 and that have settled similar claims.

The financial aspect of the offer was not acceptable to the Lubicon Lake Cree and agreement could not be reached on the self-government aspect of the Lubicon Lake Cree claim, leading to a failure to reach a settlement in 2003. The difference in approach to self-government negotiations between the Government of Canada and the Lubicon Lake Cree has led to the refusal by the negotiators for the Lubicon Lake Cree to continue any negotiations.

Although negotiations are consequently at an impasse, the parties are continuing to talk. The Government of Canada has made several attempts to resume negotiations, most recently in November, 2005.

Out of concern for the length of negotiations, the Government of Canada made an offer for partial settlement to the Lubicon Lake Cree at the end of 2005. This offer for a partial settlement included the previously agreed to lands and funds to build the new community, and reserved the resolution of all other issues to future negotiations. The partial settlement offer called for the Lubicon Lake Cree to acknowledge that receipt of the land (the blocks of Proposed Reserve Land shown on Map #2 and Map #3) was pursuant to Canada’s obligations to provide Reserve Land under Treaty 8. An outline of this offer for partial settlement, provided to the negotiators for the Lubicon Lake Cree by the Government of Canada, was attached by Lubicon Lake Cree representatives to their submission to the Committee on Economic, Social and Cultural Rights on the occasion of the Government of Canada’s fourth and fifth reports under that Covenant and is therefore available on the UN website.

Acceptance of the offer for a partial settlement would not have foreclosed negotiations on other aspects of Lubicon Lake Cree claim. Unfortunately, negotiators for the Lubicon Lake Cree have stated that they cannot see any advantage to pursuing negotiations on some aspects of their claim, such as land and the construction of a new community, without addressing all the other aspects at the same time. The offer for partial settlement was rejected by the negotiators for the Lubicon Lake Cree; it is not a standing offer.

The Government of Canada’s current negotiating position is that the global offer made to the Lubicon Lake Cree during the last round of negotiations up to November 2003, in respect of land, membership, community and money, is still available.

The Lubicon Lake Cree continue to maintain two lawsuits against the Government of Canada which include claims for land and compensation. These lawsuits have been in abeyance in light of continuing negotiations. In February 2006, legal representatives of the Lubicon Lake Cree and the Government of Canada agreed to a further abeyance of the lawsuits; the abeyance was sanctioned by the Court by way of a Court Order. The litigation is therefore in abeyance until October 17, 2006, in order that the parties may continue efforts to resume negotiations.

This submission is a response to the request by the Human Rights Committee for follow-up information in respect of Communication No. 167/1984 by Chief Bernard Ominayak and the Lubicon Lake Cree. In its 1990 decision on the merits of Communication No.167/1984, the Human Rights Committee stated that Canada’s proposal to rectify the situation (the 1989 settlement offer) was an appropriate remedy within the meaning of article 2 of the Covenant. The Lubicon Lake Cree have yet to accept the remedy that the Government of Canada proposed.

Throughout the 1990's and into the present, serious attempts have been made by the Government of Canada to reach a negotiated settlement with the Lubicon Lake Cree. In the latest round of negotiations, which ended in 2003, every aspect of the Government of Canada’s offer to the Lubicon Lake Cree was enhanced over previous offers, including the offer which was found by the Human Rights Committee to be appropriate to remedy the threat to the Lubicon Lake Cree under article 27 of the Covenant.

The Lubicon Lake Cree leadership, and its negotiators, have always insisted on a full settlement of all aspects of their claim. Even where there has been substantial agreement by all parties to the negotiations on many aspects of the Lubicon Lake Cree claim, a settlement has been beyond the reach of the parties. The negotiators for the Lubicon Lake Cree have indicated that the Lubicon Lake Cree are only willing to negotiate the self-government aspect of their claim on their terms, and consequently have been unwilling to continue to negotiate toward a settlement of those aspects of their claim which are relevant to this communication and for which there is substantial agreement, including the question of the amount and location of the land and the construction of a new community.

Since 2003, the negotiators for the Lubicon Lake Cree have been unwilling to reopen negotiations. In 2005, they declined an offer from the Government of Canada for a partial settlement, which was made on the basis that it was without prejudice to the remaining, unresolved aspects of their claim.

The Government of Canada is committed to a resolution of the Lubicon Lake Cree claim that is fair to all parties. The Government of Canada is committed to a resolution of those aspects of the Lubicon Lake Cree claim that would deliver the proposed remedy found appropriate by the Human Rights Committee. The Government of Canada is willing to resume negotiations at any time should the Lubicon Lake Cree be willing to return to the negotiating table.