PART I: BACKGROUND *

PART II: COMMENTS ON THE "INTRODUCTION" SECTION OF THE FOLLOW-UP RESPONSE OF THE GOVERNMENT OF CANADA *

PART III: COMMENTS ON PART II OF THE FOLLOW-UP RESPONSE OF THE GOVERNMENT OF CANADA REGARDING "THE CURRENT SIUTATION OF THE LUBICON LAKE CREE" *

PART IV: COMMENTS ON PART III OF FOLLOW-UP RESPONSE OF THE GOVERNMENT OF CANADA REGARDING "THE EFFECT OF LOGGING AND OIL AND GAS EXTRACTION IN NORTHERN ALBERTA ON TRADITIONAL LAND USE BY THE LUBICON LAKE CREE" *

PART V: COMMENTS ON PART IV OF THE FOLLOW-UP SUBMISSION OF THE GOVERNMENT OF GOVERNMENT OF CANADA REGARDING "CONSULTATION PROCESSES IN RESPECT OF LICENCES FOR ECONOMIC DEVELOPMENT IN ALBERTA" *

PART VI: COMMENTS ON PART V OF THE FOLLOW-UP SUBMISSION OF THE GOVERNMENT OF CANADA REGARDING "STATUS OF NEGOTIATIONS BETWEEN THE GOVERNMENT OF CANADA AND THE LUBICON LAKE CREE" *

PART VII: COMMENTS ON THE "CONCLUSIONS" OF CANADA’S FOLLOW-UP RESPONSE TO LUBICON COMMUNICATION NO. 167/1984 UNDER THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (PART VI OF THE CANADIAN SUBMISSION) *

As documented in earlier submissions to the Committee, resource exploitation companies are extracting billions of dollars in natural resources from Lubicon Territory with horrific consequences for the human and indigenous rights of the Lubicon people. The companies claim to have purchased rights to these resources from the Alberta provincial government.

The Alberta provincial government claims to have obtained the natural resource rights they sell to resource exploitation companies from the government of Canada by virtue of a 1930 federal/provincial land transfer agreement. This 1930 Land Transfer Agreement purports to transfer vast tracts of lands and resources allegedly under the jurisdiction of the Crown in right of Canada to the jurisdiction of the Crown in Right of Alberta.

The government of Canada claims to have obtained the rights to lands and resources allegedly transferred to the Alberta provincial government in 1930 through negotiation of land cession treaties with the original indigenous owners of that land. However the Lubicons are the original indigenous owners of Lubicon Territory and the Lubicons have not surrendered their rights to Lubicon Territory through treaty with the government of Canada or in any other legally or historically recognized way.

Canada consequently transferred rights to lands and resources that Canada did not properly hold to Alberta; Alberta sold resource rights that it did not properly hold to resource exploitation companies; and resource exploitation companies are extracting billions of dollars in natural resources from unceded Lubicon lands -- with horrific consequences for the human and indigenous rights of the Lubicon people -- based on resource rights purchased from the Alberta provincial government that the Alberta provincial government does not properly hold.

It is not possible to understand the continuing abuse of the Civil and Political Rights of the Lubicon people under the Covenant except in the context of this fact situation.

Lubicon oral history is that the Lubicon people have occupied their traditional Territory since time immemorial.

A highly qualified independent ethnologist -- using anthropological, archaeological, demographic, ethnographic, historical and linguistic evidence -- concluded that "The immediate ancestors of the historic Cree lived (in Lubicon Territory) from about A.D. 1400...(and)...may have lived there earlier but the amount of archaeological research represents too small a sample to be certain of the initial date".

Genealogical evidence documents Lubicon occupation of Lubicon Territory by the direct ancestors of the current Lubicon Cree population as early as 1750 -- well before the advent of Europeans in the area.

In 1763 English King George III issued a Royal Proclamation the purpose of which was to organize England’s North American Empire and to define relations with North American Indians including land acquisition from Indigenous Nations on the western frontier where at that point no western European had yet set foot. This Royal Proclamation is now part of the Canadian Constitution and continues to provide the legal framework for the taking of indigenous land in Canada.

The "Indian Provisions" of the Royal Proclamation read as follows:

The procedure historically employed to obtain the cession of indigenous land in Canada under the Royal Proclamation is the making of a treaty with the original indigenous owners of the land. Although the indigenous understanding of the purpose and effect of the treaty is different, the position of Canada is that through the treaty the indigenous nation cedes rights to relatively vast indigenous lands and resources in exchange for exclusive use of a small reserve area and certain prescribed rights and benefits.

Canada was created in 1867 by the British government as a so-called "self-governing colony of the British Empire" operating under a piece of British legislation called the British North America Act. Canada therefore came into existence as an identifiable political entity, if not an autonomous political state, well after the Lubicons are known to have existed as an autonomous Indigenous Nation with a defined Territory.

The British North America Act served as an externally imposed Canadian Constitution from 1867 until 1982 when it was "patriated" or "brought home" by Canada, thereby making it subject to the Canadian Parliament rather than the British Parliament. The Royal Proclamation of 1763 is included in the "patriated" Canadian Constitution and is now part of the Canadian Constitution.

Among other things the British North America Act spells out the jurisdiction of different levels of Canadian government specifying that "Indians and Lands Reserved for Indians" are "the exclusive Legislative Authority of the Parliament of Canada".

Canada has not negotiated a Treaty with the Lubicon Lake Indian Nation. The constitutionally prescribed procedure for the taking of Indian lands has therefore not been followed by Canada. The Lubicons have not surrendered their rights to Lubicon Territory even under the precepts of Canadian law, to say nothing of the way the Lubicon people, as an autonomous indigenous Nation with a defined Territory that existed before the creation of Canada, view and treat the issue of Lubicon Territorial rights.

Canada implies in its latest submission to the Committee that indigenous people in the area now known as northern Alberta do not have a concept of an exclusive territory associated with one particular indigenous nation but rather wander around living off the land as best they can like "the deer in the field".

In fact the indigenous peoples in the area now known as northern Alberta have a very definite concept of an exclusive territory associated with one particular indigenous nation. They believe their particular geographically defined Territory is where the Creator put them as a people with a sacred responsibility to care for the plants and animals. They believe the plants and animals will support them and their future generations if they meet their responsibility to the Creator and care for the plants and animals in their particular Territory. They believe that the Creator put them and only them there and it is in that sense their land, their responsibility and nobody else’s.

Asked about lands beyond their Territory, the Lubicon people say it is where the Creator put other people. They are of course aware that white people don’t share their religious views but have difficulty understanding why white people do not stay where the Creator put them or care for the plants and the animals. As one Lubicon Elder asked, "Don’t the white people understand that they can’t destroy everything and have anything left".

Asked about the Lubicon Territory, the people of other indigenous nations in the area now known as northern Alberta know that it has always been Lubicon Territory and that Lubicon Territory is not the territory of any other indigenous nation.

In 1899 Canada negotiated Treaty No. 8 with various Indigenous Nations in the area surrounding Lubicon Territory. These Indigenous Nations spoke one of three distinct Indigenous languages -- Cree, Beaver and Chipewyan -- but each had its own traditional Territory and political organization. Although Canada is now trying to suggest that the Lubicons are members of an amorphous "Cree Aboriginal people living in Canada" -- "members of a thinly scattered minority group living in the midst of a more numerous population grouping" is the way Canada put it in an earlier submission to the Committee -- Canada made treaty with the political representatives of these distinct, territorially-based Indigenous Nations -- not with representatives of a Cree-speaking Nation, a Beaver-speaking Nation and a Chipewyan-speaking Nation. A Cree-speaking, Beaver-speaking and Chipewan-speaking Nation did not exist as such any more than all English-speaking, French-speaking or German-speaking people currently belong to the same nation.

The Lubicons were missed when Canada made treaty with the indigenous groups in the surrounding area because the Lubicons lived in an isolated, inaccessible hinterland not transected by any major river system. The Canadian Treaty party followed the main river systems and did not venture into the hinterland. The Treaty Commissioners acknowledge as much in their report on the negotiation of Treaty 8 that says, in part:

The surmise of Treaty Commissioners about the number of Indians in the area north of Lesser Slave Lake, and the likelihood that they belonged to Bands that had already joined treaty, was wrong on both counts. The language of the Report is notable, however, in that it makes clear that the mandate of the Treaty Commissioners was to treat with all of the "bands" in the area in order to "extinguish" the "Indian title".

It is now known that there were several distinct Indigenous Nations in the vast hinterland area north of Lesser Slave Lake each with its own distinct Territory, separate and apart and not affiliated with Indigenous Nations that made treaty with Canada in 1899. One of these distinct Indigenous Nations in the hinterland area north of Lesser Slave Lake was the Lubicon Lake Indian Nation, which alone numbered around 3,000 persons in 1899.

Alberta was created as a province of Canada in 1905 -- again well after the Lubicons are known to have existed as an autonomous Indigenous Nation with a defined Territory.

Although the original Canadian provinces forming Canada in 1867 were deemed to own the public lands and natural resources within their boundaries, Alberta was treated differently than the original provinces forming Canada and the Canadian federal government retained ownership of the public lands and natural resources within the boundaries of the new province of Alberta until 1930.

In 1930, after nine years of contentious negotiations that continue to plague relations between the Canadian federal government and the Alberta provincial government -- and to complicate resolution of Lubicon land rights -- the Canadian federal government agreed to transfer jurisdiction and ownership of public lands and resources within the boundaries of the province of Alberta to the Alberta provincial government subject to certain specified provisions and exceptions.

Several provisions of the 1930 Land Transfer Agreement pertain to Indians and Indian lands.

Section 10 of the 1930 Land Transfer Agreement pertains to reserve lands pursuant to treaty and provides that Indian Reserves remain under federal jurisdiction and that the province has to transfer back to federal jurisdiction any land required by the federal government to enable the federal government to meet its constitutional obligations under the treaties with the Indians in the lands being transferred.

Section 10 of the Land Transfer Agreement reads:

Section one of the 1930 Land Transfer Agreement expressly excludes lands and resources that the Canadian federal government does not properly hold. Section one reads:

Since Canada had not made treaty with the Lubicons pursuant to the Royal Proclamation at the time of the land transfer agreement -- and has still not made treaty with the Lubicons respecting Lubicon rights to Lubicon Territory -- Lubicon rights to Lubicon Territory constitute an "interest other than that of the Crown in the same", and Lubicon lands are excepted from lands and resources transferred by the government of Canada to the Alberta provincial government via the 1930 Land Transfer Agreement.

Alberta therefore does not properly hold and cannot properly sell resource rights on Lubicon lands to the resource companies, and the resource companies are extracting billions of dollars in natural resources -- with horrific consequences to the human and indigenous rights of the Lubicon people -- based on resource rights purchased from Alberta that Alberta does not properly hold.

The fact that Canada transferred rights to lands and resources to

Alberta without having first properly obtained rights to those lands and resources from the original indigenous owners, and that Alberta subsequently sold resource rights on those lands worth billions of dollars to resource exploitation companies, is something neither Canada, Alberta, nor the resource companies is prepared to acknowledge, entertain, discuss or countenance. However it is still a fact. And it is a fact that must be understood in any effort to contend with the continuing abuse of the Civil and Political Rights of the Lubicon people under the Covenant.

There were continuing reports of Indigenous Nations in the area north of Lesser Slave in the early 1900s and some individual Lubicons were put on the membership lists of Indigenous Nations in the surrounding area where they’d gone to visit or trade.

In the 1930s, in response to information from members of indigenous nations in the surrounding area that white people were going to come into the Lubicon Territory, Lubicon representatives started trying to make contact with Canada about negotiating a treaty to protect Lubicon land rights -- which was the Lubicon understanding of the purpose of the treaty. Government officials put these Lubicon representatives on the membership list of the band where they traveled to make contact and sent them on their way.

In 1939 Canada sent a delegation into Lubicon Territory expressly to determine whether the Lubicons were a distinct Indigenous Nation or merely members of indigenous nations with whom Canada had already made treaty. It was officially determined that the Lubicons were indeed a separate and distinct indigenous society -- with its own history, political organization and Territory -- that needed to be officially dealt with. Reporting on that first contact, the local Indian Agent, N. L’Heureux, wrote as follows:

Regarding that same visit, Inspector of Indian Agencies in Alberta, C. P. Schmidt, wrote as follows:

Despite the provisions of the Royal Proclamation, and despite the fact that adhesions to treaty are to this day still being negotiated with indigenous nations in Alberta as part of land settlement agreements, Canadian officials off-handedly decided that negotiation of a treaty with the Lubicons, or an adhesion to treaty, was not necessary and that the Lubicons could simply be recognized as a "band" of status Indians entitled to the benefits of Treaty 8 -- including establishment of a Lubicon reserve.

Following standard procedure in recognizing an Indigenous Nation, Canadian officials made up a separate Lubicon membership list consisting of Lubicon members meeting with the official 1939 Canadian delegation. Lubicon members whose names had been incorrectly added to the membership lists of other Bands in the surrounding area were transferred to the Lubicon membership list. Other Lubicons not in attendance at the 1939 meeting were to be added to the Lubicon membership list and taken into account in determining reserve land quantum when they came in from the bush. Authority was granted by the Secretary of Indian Affairs "to hold a meeting of the (Lubicon Lake) Band for the purpose of enabling the Indians to signify their choice for a Chief".

Arrangements were made for the Dominion Land Surveyor to survey a reserve for the Lubicon people at Lubicon Lake based on the number of Lubicons with whom the Canadian delegation met in 1939 with the proviso that "absentees" would be added to the membership list and taken into account in calculating reserve size as they came in from the bush.

Surveying a reserve for the Lubicon people was on the work program of the Surveyor General in 1940 but there was no viable surface access into the area and it wasn’t possible for the surveyor’s plane to land on the lake due to smoke and shallow lake water.

Surveying a reserve for the Lubicons was on the work program of the Surveyor General again in 1941 but the work had to again be delayed because of "drastically cut" budget estimates and "owing to the pressing need for vigorously prosecuting war preparations".

On February 23, 1942 the federal Director of Indian Affairs, H. W. McGill, wrote the federal Superintendent of Reserves and Trusts, D. J. Allen, as follows:

On April 18, 1942, Director McGill wrote the Deputy Minister of the federal Department of Mines and Resources as follows:

On April 20, 1942 the Surveyor General, E. H. Peters, wrote Director of Indian Affairs McGill as follows:

On May 4, 1946, after the end of the war, the Provincial Minister of Lands and Mines, N. E. Tanner, advised Canada "that the survey of this area at Lubicon Lake may be made at your convenience in accordance with the (1930) Transfer Agreement".

On September 17, 1946 the new Director of Indian Affairs, R. A. Hoey, telegraphed the surveyor in the field, C. D. Brown, as follows:

On February 11, 1952 the Director of the Technical Division of the Alberta Provincial Department of Lands and Forests, T. W. Dalkin, wrote the Superintendent of the Canadian federal Department of Reserves and trusts, D. J. Allen, as follows:

Mr. Allen wrote Mr. Dalkin back on March 15, 1952 as follows:

Mr. Allen also wrote the Canadian Regional Supervisor of Indian Agencies, G. H. Gooderham, as follows:

On March 27, 1952 the local Indian Superintendent, G. S. Lapp, wrote Mr. Gooderham as follows):

On April 9, 1952 the Acting Superintendent of Reserves and Trusts, L. Brown, wrote Mr. Dalkin as follows:

Mr. Dalkin wrote Mr. Brown back on April 17, 1952 as follows:

During the meeting on May 31^st Lubicon representatives made clear to Superintendent Lapp that they were not prepared to move to a reserve outside of their historic Territory leaving behind their homes, traplines that had been in their families for countless generations, familiar hunting areas, traditional burial grounds and important religious, historical and cultural sites. Seven out of the ten families with whom Superintendent Lapp met said they’d "request enfranchisement if a reserve is not established at Lubicon Lake".

On June 13, 1952 Superintendent Lapp wrote Regional Supervisor of Indian Agencies Gooderham reporting on the May 31^st meeting as follows:

On June 16, 1952 Regional Supervisor Gooderham wrote Acting Superintendent of Reserves and Trusts Brown as follows:

On June 26, 1952 Mr. Dalkin of Provincial Lands and Forests wrote Superintendent of Reserves and Trusts Allen again asking to "know the outcome of your meeting of May 31^st when it was to be decided that the proposed Lubicon Lake Reserve would be established or abandoned".

On August 5, 1952, the Deputy Minister of the Provincial Department of Lands and Forests, H. G. Jenson, wrote Superintendent of Reserves and Trusts Allen as follows:

On August 15, 1952, Acting (federal) Superintendent of Reserves and Trusts Brown wrote Mr. Jensen:

Also on August 15^th Regional Supervisor Gooderham wrote Mr. Brown:

On October 21, 1952 Deputy Minister of Provincial Lands and Forests Jensen wrote Superintendent of Reserves and Trusts Allen asking for authorization "to strike out the provisional reservation (the Province) had temporarily placed upon the (proposed Lubicon Lake Reserve)".

On October 27^th Acting Superintendent of Reserves and Trusts Brown wrote Deputy Minister of Provincial Lands and Forests Jensen advising Mr. Jensen that the federal government was "as yet not in a position to state whether the proposed Lubicon Lake Reserve will be required for Indian use".

On November 1, 1952 Mr. Brown wrote Regional Supervisor Gooderham:

On November 28^th Mr. Brown wrote Mr. Gooderham again offering Mr. Gooderham his further thoughts on the Lubicon Reserve situation:

On June 17, 1953 Superintendent Lapp wrote Regional Supervisor Gooderham reporting on a meeting with the Lubicons to discuss alternative reserve sites outside the Lubicon Territory but closer to roads and non-indigenous communities:

On October 22, 1953 Mr. Dalkin from Provincial Lands and Forests wrote Mr. Gooderham as follows:

On October 26^th federal Regional Supervisor Gooderham wrote Mr. Dalkin back as follows:

Mr. Gooderham also wrote the Director of Indian Affairs, R. A. Hoey, as follows:

On February 25, 1953 Regional Supervisor Gooderham wrote Superintendent Lapp:

In May of 1954 -- unable to convince the Lubicons to leave their traditional Territory and move to more convenient reserve land elsewhere -- Superintendent Lapp started questioning whether the federal government "authorized the establishment of a separate Lubicon Lake Band". Contrary to the express, written conclusions of the first government delegation to visit Lubicon in 1939, Mr. Lapp asserted, in a letter to the Acting Regional Supervisor E. A. Robertson dated May 5, 1954, "the Lubicon Lake Band was originally part of the Whitefish Lake Band". He indicated that he thought a number of Lubicons "would be willing to return to the Whitefish Lake Band...and that the members of the Whitefish Lake Band would agree to the transfer if the Whitefish Lake Reserve were enlarged..."

Mr. Lapp wrote "I do not recommend the establishment of a reserve at Lubicon Lake because of the lack of educational facilities and the impossibility of administration by Indian Heath Services and Indian Affairs due to lack or roads". "However", he wrote, "I do favor the establishment of a small reserve near Three Creeks" and "an attempt will be made to persuade those members of the Lubicon Lake Band who are present (at a meeting on May 22, 1954) to consent to the establishment of a reserve in that locality..."

On June 22, 1954 Superintendent of Reserves and Trusts Brown wrote a memo to a member of his staff named Miss Burke asking that she "consult the appropriate files and advise...whether action was taken by the Department to officially establish the (Lubicon Lake) Band as a Band for at this time any such action appears rather short-sighted and if the group was never established as an official Band it will serve our purpose very well at the present time (underlining added)".

Miss Burke referred Mr. Brown’s memo to the Registrar for Indian Membership, a controversial Indian Affairs official named Malcolm McCrimmon. Mr. McCrimmon had been responsible for wholesale disenfranchisement of hundreds of status Indians in 1942 that had been reviewed by a subsequent judicial inquiry and found to be entirely inappropriate. Mr. McCrimmon is known to have ignored judicial findings reversing his removal decisions and to have manipulated official records in order to support or justify his actions. Ignoring file documents pertaining to recognition of the Lubicons as a separate and distinct indigenous nation, Mr. McCrimmon scribbled a handwritten note across the bottom of Mr. Brown’s memo saying "No official action was ever taken to establish the Lubicon Lake Indians as a Band".

On November 2, 1954 Mr. Dalkin of Provincial Lands and Forests wrote Regional Supervisor Gooderham as follows:

During the next few years federal officials actively sought to make the Lubicons disappear, at least from official government records. Lubicon members who were to be added to the Lubicon membership list following the 1939 agreement were not added. Lubicons who had been improperly removed from the official membership Lubicon membership list in 1942 by Mr. McCrimmon were not reinstated despite the conclusion of a judicial inquiry that they should have not been removed. Some Lubicons were transferred to the membership lists of Bands in the surrounding area despite being born and living all their lives in Lubicon Territory and never being accepted as a member by the other Bands. Other Lubicons were convinced to have their names transferred to the membership lists of other bands telling them they wouldn’t have to leave the Lubicon area but their children could attend government residential schools located elsewhere -- something that turned out to be a horrific experience for many indigenous children in Canada but fortunately few Lubicon children lasted very long away from home. One man was transferred to the membership list of the Whitefish Lake Band without his knowledge or permission when he went there for a visit -- something he didn’t learn until years later. Another was told he could try "enfranchisement" and living "like a white man" -- which among other things meant being able to legally drink alcoholic beverages -- and then go back to living like an Indian if he didn’t like "living like a white man". In fact "enfranchisement" was an irreversible process resulting in permanent loss of Indian status and rights and the man was enfranchised by fraud.

By 1973 the Lubicon situation was being officially described in government correspondence by the Chief of the Lands Division of Indian Affairs, H. T. Vergette, as follows:

All of these actions by federal officials to make the administratively inconvenient Lubicons disappear served to vastly complicate the Lubicon membership situation on paper -- something the Canadian government is continuing to use in its current "follow-up response" to the Committee -- but they had little practical effect on the lives of the Lubicon people until completion of an all-weather road into unceded Lubicon Territory in 1979. Until then the Lubicons continued to carry on pretty much as they always had -- living in log houses with sod roofs chinked with mud, using dog sleds and horse drawn wagons for transportation, speaking their Cree language, practicing their traditional religion, hunting and trapping for a living, having no phones, no newspapers, no television and only minimal, occasional contact with the outside world.

Completion of the all-weather road into the unceded Lubicon Territory in 1979 allowed for the onset of massive resource exploitation activity that destroyed the Lubicon hunting and trapping economy and set the stage for the current tragic situation documented in earlier Lubicon submissions to the Committee.

The INTRODUCTION to the Canadian follow-response says:

In the very next sentence, the Canadian submission says:

The claim that "Canada is negotiating in good faith and making every effort to reach a settlement" is obviously inconsistent with the statement that "The Government of Canada does not wish to jeopardize the chance that negotiations...may resume at some point in the future". Either "Canada is negotiating in good faith and making every effort to reach a settlement", as the Canadian submission claims, or there are no negotiations and "Canada does not wish to jeopardize the chance that negotiations...may resume at some point in the future".

In fact there have been no Lubicon land negotiations of any kind since November of 2003 when Canadian government negotiators took the position that they had no mandate to negotiate long outstanding, pre-agreed settlement issues including financial compensation and self-government.

The Canadian submission says "The parties failed to complete a settlement in 2003 because of two aspects of the negotiations". It says "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". Those two sentences are revealing. Canada’s concept of negotiations is that Canada tables a position and the Lubicons accept it or negotiations end and there is "failure to complete a settlement".

With regard to the issue of financial compensation, the Canadian submission confuses the issue of financial compensation with capital construction costs -- which Canada acknowledges later in the submission have basically been agreed. Negotiations did not reach an impasse over basic capital construction costs. Negotiations reached an impasse when Canadian negotiators refused to negotiate the issue of financial compensation.

Financial compensation has been an expressly agreed settlement agenda item since 1984 when an ex-Canadian Justice Minister named E. Davie Fulton, who’d been appointed by then Canadian Indian Affairs Minister David Crombie, proposed to base financial compensation owing by the federal government on the value of lost programs, benefits and services that the Lubicons should have been receiving since the signing of Treaty 8 in 1899 but hadn’t received. Mr. Fulton argued that these programs, benefits and services are owing to status Indians in Canada whether they are party to treaty or not pointing out that Indians in the Maritime Provinces, British Columbia and the Northwest Territories who are not party to treaty still receive these programs, benefits and services. He argued that the value of lost programs, benefits and services would be easier to quantify than things like the dollar value of damages and loss of way of life.

The Lubicons agreed to base the amount of financial compensation owing from the federal government on the value of lost programs and services. The resulting calculation, based on government figures and going back to the signing of Treaty 8 in 1899, was $167 million in 1984 dollars. This figure was being discussed with Mr. Fulton when he was suddenly and unexpectedly replaced in 1985. His successors have ever since refused to discuss any substantive bases for financial compensation.

In 1988 negotiators for the province asked the Lubicons to suggest a formula for financial compensation owing from the province rather than negotiating the dollar value of natural resources taken from unceded Lubicon Territory by the resource companies -- which provincial representatives refused to discuss saying it would take too much time. The Lubicons proposed 10% of the roughly 20% the province receives in royalties for the value of natural resources extracted from unceded Lubicon Territory by the resource companies -- two cents on the dollar.

The following week the provincial premier publicly announced that the Lubicon formula would generate "more than $100 million in taxpayer’s money" -- which is of course not where the money came from. (If two cents on the dollar amounted to more than $100 million in royalty payments to the province nine years after commencement of major resource exploitation activity in the unceded Lubicon Territory, the oil companies by that point had extracted natural resources having a dollar value in excess of $5 billion, and the province had received royalties on those resources of more than $1 billion. Projecting these same provincial government numbers to 2007 -- without taking into account skyrocketing oil prices and a huge amount of additional activity that has occurred since 1988 -- the dollar value of natural resources extracted from unceded Lubicon Territory to the current time is conservatively estimated to exceed $15 billion, and the amount received by the province in royalties on those resources is conservatively estimated to exceed $3 billion.)

Provincial negotiators have never been prepared to discuss the compensation formula they requested from the Lubicons.

Instead of negotiating substantive bases for negotiation, federal negotiators proposed that the Lubicons simply table a bottom line figure the Lubicons would be prepared to accept from both levels of Canadian government for financial compensation. The Lubicons tabled a bottom line figure of $100 million in 1988 Canadian dollars from both levels of Canadian government -- as over against the two numbers of $167 million from Canada and $100 million from Alberta then on the table for negotiation.

Neither level of Canadian government was prepared to discuss the bottom line figure that had been requested from the Lubicons although at one point during the provincial election in 1993 the responsible provincial Minister, Mike Cardinal, did propose to equally split the Lubicon bottom line figure between the federal and provincial governments. The Lubicons agreed to the approach proposed by the provincial Minister but neither level of government has been willing to discuss the provincial Minister’s proposal and he has since denied making it.

Federal negotiators next proposed to negotiate the tabled Lubicon bottom line as though it were the opening Lubicon position without reference to any substantive bases for calculating financial compensation. When the Lubicons refused to treat the requested bottom line as the starting point for negotiations and suggested a return to negotiation of substantive bases of financial compensation, federal negotiators tabled an amount of $20 million that they said represented what was left over in their unspecified mandate after they’d compensated companies for leases and permits sold to the companies by the province in the proposed 247 square kilometer Lubicon Reserve area -- which is only a tiny fraction of the 10,000 square kilometer unceded Lubicon Territory, and is tantamount to reimbursing the companies with Lubicon compensation money for leases and permits in unceded Lubicon Territory that the companies had purchased from the province.

When the Lubicons refused to simply accept what was left over in the Federal negotiators unspecified mandate after they’d reimbursed the companies for leases and licences in the proposed 247 square kilometer Lubicon reserve area sold to the companies by the province, and proposed alternative ways the Lubicon goal of providing an on-going source of independent funds for Lubicon society in exchange for rights to Lubicon Territory, federal negotiators took the position that they had no mandate to negotiate anything more or different than the $20 million amount they’d tabled. It’s this $20 million figure, plus an additional $2 million that the province has proposed to contribute out of the billions the province has received in royalties on resources extracted from unceded Lubicon Territory -- offered effectively on a take-it-or-leave-it basis -- to which the Canadian submission is referring when it talks about "the increased amount of settlement money on offer...the Lubicon Cree did not accept".

With regard to self-government, the Canadian submission says "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 (Lubicon) terms". The Canadian submission does not describe Lubicon "terms" or Canada’s approach until later in the Canadian submission and then only in misleading and deliberately abstruse language.

In point of fact the truth isn’t all that complicated or hard to understand. Canada recognizes that the inherent right of self-government is an existing aboriginal right within section 35 of the Canadian Constitution. The Lubicons have all along insisted that recognition of their right to retain governance of their own affairs has to be part of any settlement of Lubicon land rights.

Appreciating that it will take time to work out how recognized jurisdiction of the different governments in Canada can be exercised in a way that is complementary and not in conflict, the Lubicons have indicated that they are prepared to negotiate how jurisdiction is to be exercised over time post settlement of Lubicon land rights -- in the same way the different levels of Canadian government negotiate their respective exercise of recognized jurisdiction all the time.

In the fall of 2003 Canadian negotiators took the position that they had no mandate to negotiate self-government as a part of settlement of Lubicon land rights and offered instead "to enter into negotiations on a (non-binding) Self-government Framework Agreement pursuant to Canada’s Inherent Right Policy" -- independent of Lubicon land settlement negotiations -- "or to include 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". In both cases Canadian negotiators flatly refused to negotiate recognition of the right of the Lubicon people to be self-governing as part of a settlement of Lubicon land rights. In neither case was Canada prepared to agree to do anything but talk about Lubicon self-government post settlement of Lubicon land rights.

Canada’s so-called "Inherent Right Policy" prescribes a complicated, multi-phase, multi-year process involving negotiation of a number of non-binding "protocols" including letters of intent, letters of instruction, letters of understanding, letters of agreement, a framework agreement, an agreement-in-principle and then, if Canadian self-government policy hasn’t changed in the meantime, negotiation of a self-government agreement followed by negotiation of a funding agreement. Just getting to the stage of talking about a non-binding framework agreement has taken others -- attempting to negotiate self-government with the government of Canada under the "Inherent Rights Policy" independent of land rights negotiations -- 5 years and longer to achieve.

As with the complicated process of negotiating settlement of Lubicon land rights, there is no binding self-government agreement until everything is agreed -- and in the meantime Canada proceeds as though indigenous people have no rights, to undermine and subvert indigenous societies and rights, to exploit the resources on disputed land and to literally call out the army if desperate indigenous people -- frustrated with interminable, non-productive negotiations -- take action to try and protect their rapidly eroding vital interests.

Moreover Canada’s so-called "Inherent Right Policy" includes secret Canadian Justice Department "Guidelines for Federal Self-Government Negotiators" instructing federal self-government negotiators how to negotiate self-government agreements in bad faith. Openly distressed that the Lubicons have provided the Committee with a copy of these secret Guidelines, Canada tries to rationalize the existence of these secret Guidelines in the Canadian submission as follows:

In fact these secret Justice Department Guidelines provide carefully drafted language for federal self-government negotiators to use in negotiating agreements that won’t be legally binding on Canada. They instruct federal government negotiators not to vary this carefully drafted language. They conduct workshops on these so-called "Guidelines" for federal self-government negotiators.

Although Canada recognizes that the inherent right of self-government is an existing aboriginal right within section 35 of the Canadian Constitution, the Guidelines say -- and if one can get through the purposefully convoluted language the Canadian submission says no different -- the Canadian government does not recognize that any particular indigenous society has the right of self-government.

The Guidelines include instructions to federal government negotiators to always refer to a "First Nation" in the plural because, they say, it is then part of a collective and cannot legally assert the constitutionally protected right of self-government on behalf of the whole Nation.

If certain problematic language cannot be avoided because it is part of the public lexicon in Canada for discussing the issue of Aboriginal self-government, the Guidelines instruct federal self-government negotiators to include it only in the preamble of an agreement and not in the body of an agreement because, the Guidelines say, language in the preamble won’t be considered binding by the courts unless there’s a referent in the body of the agreement.

The Lubicons asked the Canadian government to renounce these secret Justice Department Guidelines and to send government negotiators to the table with instructions to negotiate self-government in good faith. That request, and the demand that federal negotiators return to the table with a full mandate to negotiate all outstanding settlement issues including financial compensation, are the only Lubicon conditions for returning to the table. This is the "all or nothing approach" the Canadian submission says the Lubicons are pursuing; these are the self-government "terms" the Canadian submission says the Lubicons are insisting upon as a prerequisite of returning to the negotiating table.

Caught off guard when the Lubicons obtained a copy of the secret Justice Department Guidelines, chagrined federal negotiators responded to the Lubicon demand that the secret Guidelines be renounced, and federal negotiators sent to the table with instructions to negotiate self-government in good faith, by taking the position that the secret Guidelines can’t be renounced because, they said, the Guidelines have been approved by the federal Cabinet. Justice Department officials unabashedly (and illegally) denied the existence of the Guidelines when asked for a copy by the media under Canadian Access to Information legislation. The Canadian Indian Affairs Minister responded to the Lubicon demand that the government renounce the Guidelines and send government negotiators to the table with instructions to negotiate Lubicon self-government in good faith by ignoring all reference to the secret Guidelines and simply denying indignantly that Canada ever negotiates in bad faith.

The Canadian submission argues that "The issue of self-government does not fall within the scope of article 27 of the Covenant, nor", according to the Canadian submission, "was it an aspect of the 1990 decision of the Human Rights Committee". The Canadian submission goes on, in footnote 2, to say "issues of self-determination, which are dealt with under Article 1 of the Covenant, are not justiciable in communications brought pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights (the first Optional Protocol)".

The Lubicons are not qualified to debate legal technicalities before the Committee but do note the specific references to Article 1 under the Covenant in sections 8 and 9 of the Concluding Observations of the Eighty-Fifth session of the Committee. Section 9 in particular reads:

In the end it is of course up to the Committee to decide whether Canada is to be given a pass for serious violation of the civil and political Rights of the Lubicon people on technical grounds. However the Lubicons point out that the 1990 decision holds Canada in violation of Article 27 so long as "historical inequities...and certain more recent developments (continue to) threaten the way of life and culture of the Lubicon Lake Band", and that the only conceivable way to prevent completion of the deliberate and systematic destruction of Lubicon society as a distinct social order, and to end the consequent suffering and loss of life of Lubicon people, is through a settlement of Lubicon land rights that includes, among other things, recognition of the right of the Lubicon people to retain governance of their own affairs.

The Canadian submission says "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". In fact the Lubicon Lake Indian Nation is an indigenous Nation of Cree-speaking people who have functioned as an autonomous Nation with a defined geographic Territory since well before Canada was created as a colony of Great Britain or Alberta was created as a trifling second-class province of Canada.

The Canadian submission says "The land that is claimed by the Lubicon Lake Cree also has been 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". In fact the indigenous Nations in the area now known as northern Alberta historically each occupied their own distinct Territory, recognized and respected by other indigenous Nations. The boundaries of these distinct indigenous territories associated with a particular indigenous nation have only recently come into question as a direct result of deliberate efforts on the part of Canadian government to foment tensions within and between indigenous nations, and to subvert indigenous land rights under Canadian law.

In the Lubicon case government efforts to undermine the definition of an exclusive territory associated with one particular indigenous nation surfaced in 1989 when the Canadian government fabricated a new Indian Band under the Indian Act that Canada claimed had an equal right to Lubicon Territory. Creation of this new Band, dubbed the Woodland Cree Band by Canadian spin doctors after a dialect of the Cree language spoken by the Cree-speaking people in the area, started out as a well documented effort on the part of the Canadian government to organize the political overthrow of duly elected Lubicon leadership following the break down of negotiations in January of 1989.

When the well-documented Canadian government effort to overthrow duly elected Lubicon leadership failed, Canada concocted the Woodland Cree Band out of a number of disparate individuals from half-a-dozen different indigenous nations in northern Alberta; falsely characterized the new Band as a break away group from the Lubicon Lake Indian Nation unhappy with Lubicon leadership; negotiated a sweetheart settlement agreement on behalf of this new Band with a government selected and paid lawyer; and then took the position that the Lubicons no longer hold unceded aboriginal rights to Lubicon Territory because, supposedly, the rights to Lubicon Territory have been ceded by an aboriginal society with equal rights to it.

Using the same lawyers that Canada had selected, hired and paid to cobble together the new Woodland Cree Band, Canada next negotiated another sweetheart settlement agreement with a neighboring indigenous nation called the Loon River Band. Canada initially characterized the Loon River Band falsely as another breakaway group from the Lubicon Lake Indian Nation and occasionally still do. Provincial Cabinet Ministers demonstrably encouraged the members of the newly recognized Loon River Band to assert territorial rights in Lubicon Territory and to demand to be hired by oil companies working in Lubicon Territory.

Next government affiliated lawyers for the Woodland and Loon River Bands drew up maps purporting to show the traditional Woodland and Loon territories as overlapping Lubicon Territory. These maps are currently being used by both provincial regulatory agencies and resource companies to try and circumvent the Lubicons regarding resource company activity on unceded Lubicon Territory.

Only having been fabricated by the Canadian government in 1989, the Woodland Cree Band doesn’t have much of a tradition to rely upon and its claimed "traditional territory" is unlike any known traditional indigenous territory. Instead of encompassing historically used and occupied land as defined by things like traditional trails and waterways, traditional communities, traditional religious and cultural sites, family traplines and burial grounds, the alleged traditional territory of the new Woodland Cree Band is in the shape of a tidy horizontal rectangle that comes at the Lubicon community of Little Buffalo Lake from the west and actually includes the historic Lubicon community of Little Buffalo Lake.

The alleged traditional territory of the Loon River Band, which unlike the fabricated Woodland Cree Band actually has a traditional Territory that other indigenous nations in the area acknowledged and respected, keeps growing with each succeeding map of it -- to the point where the claimed traditional Territory of the Loon River Band now nearly reaches the eastern end of Lubicon Lake.

On the south, a traditional land use study done by industry financed so-called researchers based at the University of Alberta -- peddled to the Whitefish Lake Band as a requirement for the Whitefish Lake Band to meet provincial regulatory requirements for gaining work in the forestry industry -- urged Whitefish Lake Elders to falsely claim that the traditional Whitefish Territory extended to the southern shore of Lubicon Lake. When the Whitefish Elders protested that this was not true, they were told by the university-based, industry-financed so-called researchers that this is the way the modern world works and, if Whitefish Elders did not cooperate and claim that the traditional Whitefish Territory extended to the southern shore of Lubicon Lake, that their desperately poor people would miss out on the "forestry boom" the way they’d missed out on the "oil boom".

Urged by government associated lawyers to claim bigger and bigger areas in order to supposedly be able to negotiate more jobs and other concessions; assured by government associated lawyers that there is nothing to lose by asserting overlapping traditional territories; encouraged by provincial Cabinet Ministers to assert jurisdiction in each other’s Territory in order to be obtain work from resource companies, the unworldly leaders of poorly educated, badly damaged indigenous societies in isolated areas plagued with high unemployment rates and myriad social problems have proven sadly vulnerable to these cynical Canadian government tactics. The deliberate Canadian government effort to blur the boundaries of distinct traditional territories associated with particular indigenous nations does not, however, change the fact that distinct traditional territories associated with particular indigenous nations historically existed, or that Lubicon Territory has always been exclusively associated with the Lubicons.

The bottom line, evident throughout the Canadian submission, is the deliberate creation of an ethnological myth that indigenous people don’t have exclusive territories associated with one particular nation in the western Europeans sense, but only wander about the bush living off the land as best they can -- like "the deer in the field". Consequently, goes the contrived Canadian legal argument built on this deliberately concocted ethnological myth, indigenous people don’t have territorial and resource rights in the sense of western Europeans but rather only limited surface rights of subsistence hunting, fishing, food gathering and non-commercial forestry.

The Canadian submission asserts that "About half of the members of the Lubicon Lake Cree are currently residing on public (Provincial Crown) land in a community called Little Buffalo". That may be Canada’s position, and it’s certainly consistent with the portrayal of the Lubicons in the Canadian submission as a contemporary version of the white man’s burden, but it is not indisputable legal or historical fact that the Lubicons reside on provincial Crown land and again begs the question of just how Alberta came into rightful possession of the land where the traditional Lubicon community of Little Buffalo Lake is located.

At one point the province sent provincial surveyors into the traditional Lubicon community of Little Buffalo, surveyed 2 acre plots around Lubicon homes and offered to give the Lubicons these two acre plots -- without subsurface rights -- in exchange for signing a quitclaim stating that they didn’t have any other land rights. Provincial government representatives lied about the nature of the quitclaim telling people who could neither read nor write that it was merely an application for free land and had nothing to do with Lubicon land rights.

Provincial officials labeled Lubicons that refused to accept the two acre plots as "squatters on provincial Crown land" and threatened to bulldoze Lubicon homes as "unauthorized improvements to provincial Crown land" unless the Lubicons acknowledged provincial jurisdiction over unceded Lubicon Territory by accepting the two acre plots. The Lubicons prepared to defend their homes with loaded rifles whereupon sweaty federal government officials quickly intervened and headed off the possibility of the Lubicon jurisdictional dispute breaking into a shooting war by leasing the 2 acre Little Buffalo lots from the province, allowing the Lubicons to have their homes without acknowledging provincial jurisdiction over unceded Lubicon Territory.

The Canadian submission says "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". In fact the discussion about adding the traditional Lubicon community of Little Buffalo Lake to proposed Lubicon reserve lands revolves around exchanging earlier agreed land containing valuable gas reserves -- that the province wants to retain -- for the Little Buffalo land. The Lubicons are prepared to make this exchange because they would rather retain a traditional site than fight over subsurface resources but the suggestion that the proposed addition of Little Buffalo is the result of Canadian benevolence is another Canadian government misrepresentation.

The Canadian submission says:

The analogy is invalid, irrelevant and downright silly for a country with the second largest land area in the world and a total national population smaller than the city of Tokyo.

To paraphrase the Canadian submission: For a sense of the size of the land that Canada claims for the exclusive use of the Canadian people (997,614,000 hectares for approximately 32 million people or about 31 hectares per person), one can consider that the city of Frankfurt, Germany (population of 660,000 in 2006) that has less than half a hectare of land per person.

For a sense of Canadian demography, ninety per cent of the Canadian population lives within 160 kilometers of the U. S. border; the Lubicons live 1000 kilometers away from the U. S. border and 500 kilometers away from the nearest Canadian city of any appreciable size.

For a sense of proportion, unceded Lubicon Territory is approximately 10,000 square kilometers and the reserve "proposed for the exclusive use of the Lubicon Cree" is 247 square kilometers.

Finally it is well notable that the only people who permanently reside in Lubicon Territory, or who have ever permanently resided in Lubicon Territory, are Lubicons -- not Frankfurters or Canadians or anyone else.

In point of fact the size of national territory is not determined by the size of some urban population in another country. The suggestion that the "size of the land at Lubicon Lake that is proposed for the exclusive use of the Lubicon Lake Cree" is somehow exorbitant or generous says more about the mentality of those drafting the Canadian submission than it does about whether the relatively small amount of land the Lubicons are likely to retain for their "exclusive use" post settlement -- and which must then provide a land base for the Lubicon population forever -- is appropriate, reasonable, fair or even adequate.

The Canadian submission says:

That statement is untrue. With the exception of one white woman who was put on the Lubicon status list by Canada under the provisions of the Indian Act when she married a Lubicon man, all Lubicons are aboriginal people related to each other by blood and to Lubicon Territory by history. Written, official Lubicon membership rules expressly so provide.

Canada knows this statement is untrue because Canada was involved with the Lubicons in a joint genealogy study of the Lubicon population completed in 1984; Lubicon membership rules were officially approved by the federal Minister of Indian Affairs in 1985; and Lubicon membership rules were reviewed by federal negotiators in 1999 and officially accepted as the basis for determining the beneficiaries of any settlement of Lubicon land rights.

The Canadian submission says "According to the submission of the Lubicon Lake Cree to the Human Rights Commission on the occasion of the presentation of Government of Canada’s fifth report in October of 2005, there are approximately 500 members of this group". It then meanders about the population issue implying that this population number is suspect by stating that "there are 405 persons with Indian status that identify as members of the Lubicon Lake Cree".

In fact Canada is well aware that there are a number of Lubicons who have purposely not registered as Indians under the Indian Act because of the Lubicon position that it is the Lubicon Nation and not Canada that decides Lubicon membership. By agreement at the negotiating table the Lubicons will provide Canada with the Lubicon membership list at the time of settlement, consistent with the way Treaty 8 was made with indigenous nations in the surrounding area in 1899.

Related to the question about Lubicon population size, footnote 8 in the Canadian submission reads:

That statement is true and there’s good reason why the Lubicons hold their membership information confidential.

The earlier mentioned joint genealogy study was done on the basis of an agreement between the Lubicons and the federal Indian Affairs Minister that the results of the study would be kept confidential between the two parties unless both agreed that the results of the study could be released to a third party. The third party of concern was the Alberta government.

The Lubicons insisted on this confidentiality agreement as a precondition to participating in the joint genealogy study because the Alberta government was insisting on approving federal determination of Lubicon land rights before transferring land back to federal jurisdiction under the 1930 Land Transfer Agreement -- effectively seeking to exercise a veto over the federal government’s exclusive constitutional responsibility for dealing with Indians and Indian lands -- and was proposing to apply wholly new criteria for determining indigenous land rights that would have effectively disenfranchised the members of any indigenous nation in Alberta.

At the time treaty was negotiated with the indigenous nations in the area surrounding Lubicon Territory, membership was determined by the Indian Nation telling the federal treaty commissioners who their members were. The indigenous nations determined their own membership. It was on this basis that membership lists were made up at the time of the signing of Treaty 8 in 1899. The number of people on the membership list in turn determined the amount of reserve land the indigenous nation would retain for its exclusive use.

The Lubicon position all along has been that they determine their own membership for all purposes and they insist on being treated the same as the indigenous nations that made treaty with Canadian in 1899 -- not to have their membership determined by continually changing rules to determine Indian status unilaterally made up by Canada to serve Canada’s evolving purposes. They have been prepared to discuss the membership issue with federal representatives as part of land rights negotiations but not with provincial officials who the Lubicons maintain have no role to play in determining Lubicon land rights either from a Lubicon perspective or under the Canadian Constitution.

Once the genealogical study was completed a federal Justice Department lawyer named Ivan Whitehall surreptitiously slipped "Solicitor for Alberta" Howard Irving an unauthorized copy, angrily denying publicly that he’d done so; threatening to sue Lubicon advisor Fred Lennarson for publicly revealing that he had; privately telling people in the Indian Affairs Minister’s office that the Lubicons might have an agreement with the federal Indian Affairs Minister to keep the study confidential but that they didn’t have an agreement with him.

In 1988, following 14 years of unsuccessful effort to achieve redress through the Canadian courts detailed in earlier submissions to the Committee -- and about which the Committee rendered a procedural decision in 1987 that Canada totally ignored instructing Canada "to take interim measures of protection to avoid irreparable damage to (Lubicon) Chief Ominayak and other members of the Lubicon Lake Band" -- the Lubicons established passport control at all main points of entry into Lubicon Territory precipitating a confrontation with Canadian government that culminated in an agreement with the Alberta government called the Grimshaw Accord which provided that Alberta, if so requested by Canada, would transfer back to federal jurisdiction 79 square miles of land with subsurface rights under the 1930 Land Transfer Agreement, plus an additional 16 square miles without subsurface rights, for a total of 95 square miles of land (247 square kilometers) for the purpose of establishing a Lubicon reserve.

With Alberta no longer blocking Canada’s ability to meet its obligations under the Canadian Constitution, Lubicon land negotiations then proceeded with the federal government. Federal officials agreed, ala the practice with other indigenous nations that made Treaty 8 with Canada in 1899, that all persons on the Lubicon determined membership list were entitled to adhere to treaty, and that all persons that adhered to treaty would thereby become beneficiaries under a Lubicon settlement agreement and have status Indians under the Indian Act. In anticipation of an imminent settlement of Lubicon land rights, the Lubicons provided Canada with the Lubicon membership list.

Following the break down in negotiations in January of 1989, described in earlier submissions to the Committee, agents of the government of Canada used the Lubicon membership list they had been provided by the Lubicons during negotiations as a recruitment list in their efforts to organize the overthrow of duly elected Lubicon leadership, literally going person to person with that list in hand, offering to provide all kinds of incentives -- including housing, medical benefits, education benefits, hunting rights and off-road bush machines -- to those who would work with federal officials and lawyers to help overthrow duly elected Lubicon leadership in an upcoming Lubicon election.

Unable to recruit a sufficient number of real Lubicons to achieve its purpose, Canada also contacted persons not on the Lubicon membership list -- many of whom had been removed from the membership lists of a number of Indian Bands by Mr. McCrimmon in 1942 and had ended up poor and on welfare in non-indigenous northern Alberta communities -- and offered them similar incentives to work with government officials and lawyers in the effort to overthrow duly elected Lubicon leadership.

These non-Lubicon individuals were initially added to the membership lists of the Bands from which they had been removed. They were then transferred to the government held Lubicon membership list -- typically again without Lubicon knowledge or involvement.

The entire section of Indian Affairs charged with reinstating people who’d been improperly removed from Indian status was put to work on building up the Lubicon membership list with people who’d agreed to work with Canada in overthrowing Lubicon leadership. People were being reinstated to the membership of their original Band and then transferred to the membership list of the Lubicon Band in as little as one week when normal applications for reinstatement were typically taking 5 years and longer.

As noted in Footnote 8 of the Canadian submission, the government of Canada maintains its own Lubicon membership list with eligibility, the Canadian submission says, "largely determined by degree of descent from Indian ancestors". In fact eligibility for the government’s "status" list is determined by the provisions of the much-revised Indian Act and is based at least as much on racism and utility in accomplishing Canadian government objectives as it is on "degree of descent from Indian ancestors."

Following the 1951 revisions to the Indian Act and before the 1985 revisions, for example, a woman’s status followed the status of her legal spouse. If a woman was a full-blooded indigenous person who married a non-Indian she legally became a "non-Indian" under the Act because it was assumed that her "non-Indian" husband would provide for her. If she was a woman with absolutely no indigenous blood at all and married a status Indian, it was assumed that her Indian husband would not be able to provide for her and she legally became a status Indian under the Act -- and effectively a ward of the state without, until as recently as 1960, even the basic legal right to vote.

When this hodgepodge of disparate individuals culled together by Canada failed to overthrow Lubicon leadership in a Lubicon election, Canada constituted them into the so-called Woodland Cree Band under Section 17 of the Canadian Indian Act. Section 17 of the Canadian Indian Act -- still in force -- reads as follows:

Section 17 of the Indian Act therefore gives the Canadian Indian Affairs Minister the absolute power -- if he doesn’t like the attitude of the duly elected leadership of an indigenous nation in Canada -- to simply take that indigenous nation apart, and to then distribute the land and resources belonging to that indigenous nation as he sees fit. He could, for example, decide to give 95% of the land and other resources belonging to an indigenous nation of 500 people -- with whom Canada disagrees for whatever reason -- to 5 dissident members of that indigenous nation who are willing to do Canada’s bidding -- as members of the new Woodland Cree Band publicly indicated they were prepared to do. All the Minister needs to proceed in this way is a request from some unspecified number of individuals, clearly solicited in the Lubicon case by agents of Canada, who are "proposing to form the new Band".

Provincial negotiators requested a copy of the Lubicon membership list arguing that membership numbers were no longer an issue since agreement to transfer land back to federal jurisdiction had been made based on what the Premier and the Chief considered "fair". In a show of good faith the Lubicons gave provincial negotiators a copy of the regularly up-dated Lubicon membership list.

In analyzing the Lubicon membership list provincial genealogists identified some individuals they considered to be members of the neighboring indigenous community of Loon Lake -- with whom there is some intermarriage and family relationships. The indigenous community of Loon Lake had a history not unlike that of the Lubicons with the exception that it had never been recognized as a band under the Indian Act by Canada. Within a matter of days the lawyers who’d been selected and hired by Canada to fabricate the Woodland Cree Band were in Loon Lake -- working hand in glove with provincial genealogists -- proposing to help the non-status people from the hitherto unrecognized indigenous community of Loon Lake negotiate a settlement of the unceded land rights of the Loon Lake people. Shortly thereafter a second sweetheart settlement deal was negotiated by government selected and paid lawyers on behalf of the Loon Lake people and Canada was claiming that another significant number of Lubicons had broken away from the Lubicon Lake Nation over alleged disputes with a supposedly intransigent Lubicon leadership.

It was at that point -- after Lubicon membership information had been misused several times by Canadian government for illicit political purposes -- that the Lubicons resolved to hold their membership list confidential until the point of settlement. In this regard, at the point of settlement the Lubicons propose to review any cases of possible membership overlap with the involved parties and, where a person qualifies for membership in more than one indigenous nation -- as is possible under some circumstances with neighboring Indigenous Nations and where there’s a history of Canada transferring people to the membership of a different indigenous nation without their knowledge or permission -- to offer the person the choice of where they wish to have their membership.

The Canadian submission acknowledges that the Lubicons are "an Indian Band within the meaning of the Indian Act". It notes the Lubicons "have their own membership code from which they determine who is eligible to vote in their elections". It says "They govern them-selves through an internally elected Band Council". And it says "The (Lubicon) Band Council administers or manages a variety of programs and services for their members".

While not exactly untrue, these statements do not accurately communicate the situation of indigenous people in Canada.

It is true that the Lubicons "have their own membership code from which they determine who is eligible to vote in their elections" -- and they have always had their own membership code from which they determine who is eligible to participate in selection of Lubicon leaders. However it is also true that Canada takes the position that it has to approve a Band membership code before authorizing a Band to "control" their own membership -- despite the fact that Canada does not then accept that all of the people who qualify for Band membership under a government approved Band membership code also qualify for status as an Indian under the government’s Indian Act rules.

Secondly the "programs and services" administered by Indian Bands are "administered" for the government of Canada under government of Canada rules and regulations and are provided only for those members Canada recognizes as status Indians under Canada’s Indian Act rules -- despite Canada insistence on approving Band membership codes before "allowing" Bands to "control" their own membership.

And thirdly -- in addition to earlier noted efforts by Canada to manipulate the Lubicon political process -- Canada regularly intervenes and interferes in Band governance, conducting Band elections, overturning Band elections, suspending Band administrations, locking elected Indian politicians out of their office, taking over the management of Band programs and services and so on.

The Canadian government submission says:

In truth the money Canada provides the Lubicons only allows the Lubicons to administer their own poverty at bare subsistence levels by government provided rules and regulations.

Half of the three million dollars, for example, goes directly to the province to run a K-12 school in the Lubicon community of Little Buffalo Lake.

The Lubicons are Cree and speak the Cree language. The teachers in the provincial school are white and speak English.

During the school year the white, English-speaking teachers who teach in the provincial school in Little Buffalo Lake live in a little white colony located in the middle of the Lubicon community of Little Buffalo Lake. The teachers socialize with each other and identify with the dominant Canadian society. They do not live in the community during the summer months and they take their holidays during the school year out of the community.

The provincial schoolteachers who live in the little white colony in the middle of the Lubicon community of Little Buffalo Lake have running water and indoor toilets. The Lubicon people in the surrounding Lubicon community have neither running water nor indoor toilets.

The curriculum used in the Little Buffalo Provincial School is determined by the province. The higher education system served by K-12 schools in Alberta is heavily subsidized by resource companies who have a major influence on both the culture and the curriculum of the post secondary schools that train Alberta’s teachers.

Many of the white teachers in the Little Buffalo Provincial School are Pentecostal Christians who view the traditional Lubicon religion of the parents of many of their students as "devil worship".

The Lubicons are given $122,233 a year to pay for post-secondary education.

Health services consist primarily of a health unit trailer hauled into Little Buffalo Lake in 1987 in response to a tuberculosis epidemic affecting a third of the Lubicon population where the Lubicons could go for related hypodermic injections. The nurse providing the tuberculosis injections refused to go to the homes of sick people citing unpaved driveways. Prior to then there were no health services at all.

Currently no nurse works at the health unit trailer and it is used largely to schedule immunizations provided by medical personnel who come to the community from time to time and to make appointments with doctors and dentists in Peace River over 100 kilometers away. People with serious medical problems or injuries are sent by ambulance to a hospital in Peace River. It sometimes takes an hour or longer for the ambulance to arrive in Little Buffalo Lake and another hour for the ambulance to deliver the sick or injured person to the hospital in Peace River. Lubicon people regularly die for lack of basic medical services.

Over $800,000 of the three million dollars is subsistence welfare at the rate of $234 per month for a single individual. This money must be viewed in the context of a situation where the traditional Lubicon hunting and trapping economy has been devastated by massive resource exploitation activity and the Lubicon people can no longer rely on the land for their food or disposable income (and where they have $122,000 a year available to provide alternative skills training).

The Lubicons do not have indoor plumbing. All of the traditional sources of Lubicon drinking water have been contaminated by resource exploitation activity and the Lubicons are dependent upon bottled water for their drinking water. The Lubicons have to travel over 100 kilometers one way in order to purchase bottled drinking water at $5 for 18 liters. It costs $80 for gasoline to make the round trip to the nearest commercial facilities to purchase food and water. Many Lubicons don’t have vehicles.

The Lubicons receive $140,100 a year for social housing. It barely scratches the housing needs of the Lubicon people. The Lubicon people live in third world housing conditions with as many as three generations living in a small, flimsy, badly insulated 81 square meter bungalow with no running water and no indoor toilet facilities. People share beds; sleep in hammocks hung from the ceiling above the bed, on couches and in chairs. Some of the old people have to be physically helped to get to outhouses especially in the winter with snow several feet deep and temperatures that drop below -40°C.

The Canadian submission says "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".

In fact the horrific impact of massive resource exploitation activity on the hunting and trapping economy and way of life of the Lubicons has been well documented and independently verified on a number of occasions.

Prior to the winter of 1979-80, moose provided the main source of food for the Lubicons. A moose could typically be found within a few kilometers. It would be killed and the meat distributed. Nobody went hungry.

Trapping provided the only source of disposal income (through barter with fur buyers who would come into Lubicon Territory in the fall to provide grubstakes and then in December and again in the spring to trade commercial items for fur). A good trapper could earn as much as $10,000 a year in trade goods.

Between 1979 and 1982 over 400 oil wells were drilled within a 25 kilometer radius of the Lubicon community of Little Buffalo Lake. The number of moose killed for food dropped from 219 in 1979 to 110 in 1981 to 37 in 1982 to 19 in 1983 where it has basically remained ever since.

Average income from trapping during the same period dropped from an average of over $5,000 per year per trapper to less than $400 per year for the best trappers. No one has been able to earn a living from trapping since the advent of massive resource exploitation activity in Lubicon Territory.

The devastated Lubicon hunting and trapping economy was replaced by state provided welfare. Moose kill dropped more than 90 per cent from 1979 to 1983; income from trapping decreased more than 90 per cent during the same period; dependence on welfare increased from under 10 per cent to 95 per cent. Welfare has remained the primary source of income for the Lubicon people ever since.

In 1983, after reviewing over 10,000 pages of court materials including sworn affidavits by anthropologists, wildlife biologists and other qualified experts pertaining to destruction of the traditional Lubicon hunting and trapping economy and its consequences for the Lubicon people, the World Council of Churches wrote then Canadian Prime Minister Pierre Trudeau a letter charging "In the last couple of years the Alberta government and dozens of multi-national oil companies have taken actions (in Lubicon Territory) which could have genocidal consequences (for the Lubicon people)".

In 1984 Ex-Canadian Justice Minister Fulton -- on behalf of the Canadian Indian Affairs Minister David Crombie -- examined this same question and concluded:

In 1987 the Curator of North American Ethnology in the Museum of the American Indian, Dr. James G. E. Smith, studied the situation and wrote in the prestigious Cultural Survival Quarterly published at Harvard University:

In 1993 a broadly based, non-partisan independent Commission reviewed the evidence and held hearings. One of the Commissioners, a prominent Conservative businessman from the neighboring non-indigenous community of Peace River named John MacMillan, wrote:

By 2002 the number of known gas and oil wells drilled in Lubicon Territory had more than quadrupled and spread throughout the entire 10,000 square kilometer Lubicon Territory. In 2006 alone the Alberta government approved the drilling of 76 new oil and gas wells and 75 new pipelines.

Canadian submission says:

While there has not been extensive logging in Lubicon Territory, the truth is more complicated and quite different than the false impression created by this statement in the Canadian submission. The facts are as follows.

On February 8, 1988 the Alberta government announced construction of a huge new greenfield bleached kraft pulp mill to be located on the west side of the Peace River -- across the Peace River from Lubicon Territory -- about 16 kilometers north of the northern Alberta town of Peace River. The town of Peace River is located about 100 kilometers west of the Lubicon community of Little Buffalo Lake.

The new bleached kraft pulp mill was described by the Alberta government as "the largest hardwood pulp mill in Canada". When completed in the fall of 1990, provincial officials said, it would employ 600 people -- 300 people to harvest the trees and another 300 to turn those trees into pulp. It would "produce" 1,000 metric tons of dehydrated pulp per day; 800 metric tons of which would be shipped to Japan without further local processing. It would clear-cut trees at the rate of about 11,000 per day; over 4 million trees a year. The trees to supply this enormous new pulp mill, it was soon learned, were to come from an enormous 29,000 square kilometer timber lease that completely blanketed the unceded 10,000 square mile unceded Lubicon Territory.

The Alberta government announcement said the estimated cost of the new pulp mill was $500 million including $62.5 million in direct subsidies from the provincial government and another $9.5 million from the federal government. Final estimated cost of the new mill was quoted at $550 million, plus another $20 million from the federal government for unspecified purposes, and an additional $1.3 billion from the province for related support infrastructure including rail connections, roads providing access into hinterland areas and a major new bridge across the Peace River providing direct access from the new mill into unceded Lubicon Territory.

The provincial Forestry Minister, LeRoy Fjordbotten, said the multi-million dollar provincial "contribution" to the new pulp mill would be used to build rail and road access and other infrastructure "necessary...to proceed in this relatively remote location". He said "Lack of such access has long been an impediment to development of the forest industry in Northern Alberta".

The $9.5 million federal contribution to the new mill was provided by the federal Indian Affairs Minister Bill McKnight in his capacity as Minister responsible for the Western Diversification Fund". Mr. McKnight said the purpose of the federal "contribution" to the new pulp mill was to demonstrate "how two governments can work together with the private sector to make a significant contribution towards the development and diversification of the Alberta economy". As federal Minister of Indian Affairs, Mr. McKnight was also constitutionally responsible for ensuring that the rights of indigenous people in Canada are recognized and respected.

Mr. Fjordbotten admitted that the Lubicons weren’t consulted or even informed about construction of the new mill. However, he said the Lubicons could have attended public meetings held by Daishowa in the Peace River area.

The Lubicons had heard about the new pulp mill and had made inquiries of the provincial Forestry Department regarding where the trees for the new mill would come from. Provincial officials told the Lubicons no decision had been made about timber leases but that the Lubicons had no cause for concern because there are lots of trees on the west side of the Peace River. Dubious that the provincial government would be planning a major new pulp mill without knowing where the trees would come from, the Lubicons pressed provincial officials for specific information on where the trees would come from. Provincial officials assured the Lubicons that the Lubicons would be informed just as soon as any decisions were made about timber leases for the new pulp mill. The Lubicons did not learn that the provincial government had sold the trees to the entire Lubicon Territory to a Japanese forestry company until they read about it in the newspaper the day after the new Japanese pulp mill was publicly announced.

Minister Fjordbotten publicly defended the sale of Lubicon trees to a Japanese forestry company claiming that the Lubicon people were asserting unextinquished aboriginal land title to over 10% of the province and that "holding up the creation of jobs because they are claiming 10% of the province is not reasonable". Aside from the issue of whether Lubicon land rights can be ignored simply because the province considers them "unreasonable", Mr.Fjordbotten’s claim that the Lubicons were asserting land rights over 10% of the province was untrue and he knew it.

Indian Affairs Minister McKnight denied that his efforts as Minister responsible for the Western Diversification Fund were in conflict with his responsibilities as federal Indian Affairs Minister. He claimed to be protecting Lubicon land rights by asking the provincial government to exclude a 66 square kilometer area set aside in 1939 as a partial reserve for the Lubicon people but never made into a reserve. He argued that the Lubicons would benefit from the new mill by working for Daishowa as loggers and/or by selling Daishowa the trees from that 66 square kilometer area that both levels of Canadian government denied the Lubicons owned.

During the next month public outrage built over sale of Lubicon trees to a Japanese forestry company including nation-wide demonstrations, critical newspaper editorials, political charges that Mr. McKnight had contravened a federal cabinet order requiring an environmental assessment before federal funds are "contributed" to such enterprises, charges that Mr. McKnight was guilty of conflict of interest, demands that Mr. McKnight resign or be fired as Indian Affairs Minister and threats of legal action to stop construction of the new mill. Mr. McKnight responded to the deluge of critical reaction by denying that he knew provincial officials "would award (Daishowa) cutting rights in the disputed area" when he made the $9.5 million "contribution".

On February 25, 1988, an aboriginal organization called United Native Nations announced that it was organizing a major demonstration to be held on March 7^th in front of Daishowa’s head Canadian office in Vancouver, British Columbia. A spokesman for United Native Nations said that representatives from indigenous nations from across British Columbia would be participating in the demonstration and that Lubicon Chief Bernard Ominayak would be attending.

On March 2, 1988 Lubicon Chief Bernard Ominayak received a telephone call from Daishowa Senior Vice President and General Manager Koichi Kitigawa asking for a meeting. A meeting was agreed for March 7^th when Chief Ominayak would be in Vancouver for the planned demonstration.

Mr. Kitigawa told Chief Ominayak that Daishowa officials had asked provincial officials about meeting with the Lubicons and had been told not to worry about the Lubicons -- that Lubicon land rights were being negotiated and that any effort by Daishowa to deal directly with the Lubicons "would only interfere with negotiations". In fact there were no negotiations.

During the meeting with Daishowa on March 7^th Daishowa representative Henry Wakabayashi told Chief Ominayak "We went into the Peace River project in good faith". He said "We know about pulp mills, not about land claims". He said "We got caught in the middle". He said "We don’t want to get involved in land claim negotiations".

Chief Ominayak told Daishowa officials that the situation is simple. Chief Ominayak said "The Lubicon people own the land and will continue to own the land until at least the question of Lubicon land rights is settled". If Daishowa didn’t want to become involved in the land dispute, the Chief said, it should stay out of unceded Lubicon Territory until the land dispute is settled.

Mr. Kitigawa pointed out that there was already a lot of resource exploitation activity in Lubicon Territory.

Chief Ominayak acknowledged that there was already a lot of resource exploitation activity in unceded Lubicon Territory. He said it had taken place without consulting the Lubicons, without Lubicon consent and over the protest of the Lubicon people while the Lubicon people were trying to protect Lubicon land rights through normal Canadian legal and political channels. He said great and irreversible damage had been done to the traditional Lubicon economy and way of life while the Lubicons were trying to protect their Territory and way of life through normal Canadian legal and political channels. He said the Lubicons were not prepared to continue just standing by while outsiders come into the unceded Lubicon Territory and destroy everything the Lubicons have and value.

If Daishowa really wanted to stay neutral, Chief Ominayak said, it should stay out of Lubicon Territory until the question of land rights is resolved. If Daishowa tried to proceed prior to settlement of Lubicon land rights, the Chief said, Daishowa would by definition be siding with one party to a two party dispute and aligning itself with provincial government claims to Lubicon Territory. He said the Lubicons would respond accordingly.

Mr. Wakabayashi pointed out that the proposed pulp mill was not located in Lubicon Territory.

Chief Ominayak acknowledged that the proposed pulp mill was not located in Lubicon Territory. He also noted that Daishowa’s timber license from the province was nearly three times the size of the entire Lubicon Territory.

If Daishowa is only proposing to cut trees for the new pulp mill outside of Lubicon Territory, the Chief said, the Lubicons would not protest. The problem would only arise, the Chief said, if Daishowa tried to harvest trees in Lubicon Territory prior to settlement of Lubicon land rights. Once there’s a settlement of Lubicon land rights, the Chief said, the Lubicons would be willing to sit down and see if an agreement could be negotiated that would allow Daishowa to proceed in Lubicon Territory while respecting Lubicon wildlife and environmental concerns.

Mr. Wakabayashi asked about specific Lubicon wildlife and environmental concerns.

Chief Ominayak said the Lubicon economy was hunting and trapping. He said countless generations of Lubicon people had cared for the plants and animals so the land and the animals would be able to support future generations of Lubicon people. He said resource exploitation activity already undertaken in Lubicon Territory had done great damage to the land and animals literally threatening the existence of the Lubicon people as a separate and distinct indigenous nation. He said any further activity would have to be done in such a way so as not to do irreparable damage to the land and animals.

Mr. Kitigawa said cutting the trees may scare away some of the animals but that there were studies to show that clear-cutting the trees also improves animal habitat. He said Daishowa’s agreement with the province requires consultation with people in the area which, he said, Daishowa is prepared to do. He said "We won’t encroach on reserve lands without first negotiating an agreement with the Lubicon people".

Chief Ominayak pointed out that there is no "reserve". He said a reserve is only one element of a settlement of Lubicon land rights. He repeated that the Lubicons assert jurisdiction over the entire Lubicon Territory and will continue to assert jurisdiction at least until there’s a settlement of Lubicon land rights.

Chief Ominayak said the Lubicon people had learned to their dismay that it was possible to buy a study that said just about anything you want it to say. However, he said, Lubicon on-the-ground experience with resource exploitation activity had made it painfully clear that the kind of resource exploitation activity that had been undertaken so far in Lubicon Territory destroyed rather than improved the environment.

Mr. Wakabayashi asked the Chief if the Chief was saying that no resource activity would ever be allowed in Lubicon Territory.

Chief Ominayak repeated that the Lubicon people will oppose any resource exploitation activity prior to settlement of Lubicon land rights but would be prepared to try and work out some kind of mutually acceptable agreement with Daishowa post-settlement.

Mr. Wakabayashi said "We need to start planning". "If the Lubicon people don’t want any development at all", he said, "then Daishowa shouldn’t pursue the area at all". "Or", he asked, "are the Lubicon people prepared to negotiate a compromise?"

Chief Ominayak repeated that the Lubicons would be willing to talk once Lubicon land rights are settled.

Mr. Kitigawa said "We’re prepared to observe all applicable (provincial) government regulations" which he described as "some of the toughest in North America".

Chief Ominayak challenged the claim that provincial government regulations are "some of the toughest in North America" characterizing them as both weak and frequently not enforced. He repeated "The Lubicon people are the legitimate owners of Lubicon land". He said "We intend to have our environmental concerns respected whatever the provincial government may or may not do".

After some further repetitive back and forth Mr. Kitigawa said "We’re prepared to talk to the Lubicons before trying to do any cutting in the traditional Lubicon area". "If you’re reasonable and we’re reasonable", he said, "then we should be able to work out a compromise".

Chief Ominayak agreed saying "Once our land rights are settled, I’m sure we’ll be able to work something out".

Mr. Wakabayashi said "We’re peaceful people and we don’t want any trouble". He said "We’re prepared to come and talk whenever the Lubicon people are ready".

Chief Ominayak replied "We’re peaceful people too but we’re committed to defending our vital interests". He said "We’ll welcome you to our community to talk once our land rights have been settled".

On March 9, 1988 Lubicon advisor Fred Lennarson phoned Mr. Kitigawa to inform Mr. Kitigawa that after the March 7^th meeting the Lubicons had decided not to proceed with a legal action against Daishowa to enjoin construction of the pulp mill but were still considering legal action against Mr. McKnight over conflict of interest and breach of a federal cabinet order requiring the conduct of a socio-economic assessment prior to committing federal funds to such projects. Mr. Kitigawa was out of the office. Fred Lennarson’s call was directed to another Daishowa Vice President named Tom Hamaoka who had also attended the March 7^th meeting. Fred Lennarson told Mr. Hamaoka that Chief Ominayak wanted Daishowa to know that an action against Mr. McKnight was not intended as an action against Daishowa but might adversely affect transfer of the $9.5 million federal "contribution".

Mr. Hamaoka said he assumed that this latest Lubicon action meant that Daishowa should be lobbying the federal government as well as the provincial government to settle Lubicon land rights.

Fred Lennarson told Mr. Hamaoka that the federal government is the only level of government in Canada that is constitutionally empowered to settle Indian land rights and that encouraging the federal government to meet its constitutional responsibilities would be a good idea.

On March 14^th Fred Lennarson sent Mr. Kitigawa maps outlining Lubicon Territory that Chief Ominayak had agreed to provide during the March 7^th meeting. On March 25^th Mr. Kitigawa wrote Fred Lennarson acknowledging receipt of the maps. Mr. Kitigawa’s letter read, in part:

Fred Lennarson referred Mr. Kitigawa’s letter of March 25^th to Chief Ominayak. Chief Ominayak responded to Mr. Kitigawa’s March 25^th letter as follows:

On September 14, 1989, Daishowa signed a 20 year Forest Management Agreement with the Alberta government.

On August 17, 1990, as provincial Forestry Ranger named Ralph Woods hand-delivered a document to Chief Ominayak entitled "Proposed Timber Harvesting Activities 1990/91". It showed that the provincial government had granted 5 huge timber licenses in Lubicon Territory to four different logging companies. All five of these timber licenses, the document said, involved "Timber Harvesting for Mill Facility".

Chief Ominayak asked Ranger Woods about volumes of timber to be harvested and proposed starting dates. Ranger Woods said he didn’t know volumes or starting dates but presumed logging activity would start "at freeze-up".

On August 31, 1990, a spokesman for Daishowa named Wayne Crouse publicly confirmed that a Daishowa subsidiary named Brewster Construction and three other Daishowa related companies "will be logging in the area that is claimed to be the traditional (Lubicon) hunting and trapping area this winter".

Mr. Crouse said that "Brewster Construction, purchased earlier this year by Daishowa, made plans to log the traditional Lubicon area two years ago when a land settlement with the Lubicons was thought to be imminent". "Now", he said, "there is no alternative for Daishowa to use Brewster’s logging in the area to provide the mill with needed fiber".

"Boucher Brothers", Mr. Crouse said, "will log in Daishowa’s assigned area in Lubicon-claimed lands by an agreement with Daishowa". "It’s really been a policy to hold off as long as possible from going in there because we know there is a dispute", he said, "but in order to keep Boucher Brothers operating they have to have a wood supply, and their operation is crucial to our operation".

"The two other companies", Mr. Crouse said (Buchanan Lumber and Bissell Brothers), "will supply Daishowa with aspen and coniferous wood chips, as well as harvesting spruce and pine for their own lumber mills".

Mr. Crouse claimed that "Daishowa has maintained good relations with the Lubicons and the company is optimistic that the Band will permit the planned logging operations". "Daishowa", he said, "will advise the Lubicon of any logging activity in advance".

Asked by reporters for reaction, Chief Ominayak said there’d been no further discussions with Daishowa but that the Lubicons had an agreement with Daishowa that Daishowa would stay out of Lubicon Territory until there was a settlement of Lubicon land rights and agreement between Daishowa and the Lubicons on Lubicon wildlife management and environmental concerns. As an honorable company, the Chief said, the Lubicons expected Daishowa to keep the agreement. If Daishowa failed to keep the agreement, the Chief said, the Lubicons would do whatever was necessary to prevent clear-cut logging of unceded Lubicon Territory.

On September 4, 1990, provincial Forestry Minister Fjordbotten claimed "The province took care to exclude enough land to accommodate the Band’s claim prior to signing any of its forest management agreements". He admitted that "The logging zones may fall within the area the Band claims as its traditional hunting and trapping territory", but, he said, "they’re outside the proposed (247) square kilometer) reserve (agreed at Grimshaw in 1988)". Presumably referring to the brief, uninformative visit of Ranger Woods on August 17^th, Mr. Fjordbotten claimed "The province has lived up to its commitment to consult the Lubicons concerning timber harvest plans".

In mid-September, Mr. Crouse told reporters that Daishowa was "hoping to set up talks with the Lubicons, Alberta Forestry and Daishowa’s logging contractors to discuss the future of logging Lubicon-claimed land". "Even though it is a dispute between the government and the Lubicons", he said, "we are still concerned because we are impacted by that".

Mr. Crouse reaffirmed that "The companies will be logging in the area that is claimed to be the traditional (Lubicon) hunting and trapping area this winter". He said "The Lubicon land is probably seven or eight times the size of the proposed reserve".

Mr. Crouse said "There won’t be any logging until we sit down and talk about the disputed land". He said "We know it is a very sensitive issue".

On September 22^nd Tom Hamaoka told reporters "Aboriginal land claims is something we’re going to have to face". He said "Daishowa Canada...is making its preparations based on the fact that the Lubicon settlement with both levels of (Canadian) government will be settled by the time we go in and log (in a couple of months)".

On September 24, 1990 provincial Forestry Minister Fjordbotten praised Daishowa for "building flexibility into its woodland plan to try and accommodate Indian land claims". He claimed "Daishowa, (provincial) Forestry and Chief Ominayak will meet during the coming week in an effort to reach an agreement on issues raised by the company’s logging plans".

Lyman Brewster, the President of Daishowa-owned Brewster Construction, met with the Lubicon Chief and Council on September 24^th. He began the meeting by presenting and reading a letter addressed "Chief Omieniak (sic)& fellow members of your council". That letter, complete with grammatical, punctuation and spelling errors, read as follows:

Chief Ominayak responded to Mr. Brewster’s reading of the letter by telling Mr. Brewster that the Lubicon people had no intention of allowing the harvesting of Lubicon trees prior to settlement of Lubicon land rights and agreement with the Lubicon people respecting Lubicon wildlife and environmental concerns. He told Mr. Brewster that Mr. Brewster should be pressuring the Canadian government to settle rather than pressuring the Lubicons to allow continued exploitation of Lubicon resources.

Mr. Brewster proposed that stumpage fees which would ordinarily go to the Alberta government could be put in a trust account pending settlement of Lubicon land rights. He said putting the stumpage fees in a trust account would put the government under pressure to settle.

Chief Ominayak suggested that Mr. Brewster put his proposal in writing but reiterated that the Lubicons have no intention of allowing logging of Lubicon trees until there’s a settlement of Lubicon land rights and agreement on Lubicon wildlife and environmental concerns.

Mr. Brewster told Chief Ominayak that he didn’t think it would be a good idea for him to put the proposal in writing. He said he thought "it would be better if a letter came from the Band". He proposed that the Band "write the provincial government saying you sold our resources and suggesting that stumpage fees be put in a trust account until the land question is settled".

Not getting the response he’d hoped for from Chief Ominayak, Mr. Brewster turned to non-indigenous Lubicon advisor Fred Lennarson and asked Fred Lennarson if Fred Lennarson understood what was being proposed.

Fred Lennarson told Mr. Brewster that he didn’t think the problem was lack of understanding. He said he thinks the problem is that the Lubicons understand all too well what’s being proposed.

Fred Lennarson pointed out that stumpage fees in Alberta are nominal -- only a couple of dollars per cubic meter for softwood and only about 25 cents per cubic meter for hardwood. At those rates, he said, a 60 foot aspen tree is worth only about 18 cents and a 40 foot spruce tree is worth only about 60 cents -- not much especially when the harvesting method is environmentally disastrous clear-cut logging.

Secondly, Fred Lennarson said, once the Lubicon trees were gone there’d be no hope of preserving even the remnants of the traditional Lubicon way of life; there’d be no hope of achieving respect for Lubicon wildlife and environmental concerns and the Lubicons would have lost leverage with regard to negotiating a settlement of Lubicon land rights.

Fred Lennarson said experience with the oil companies made clear that the Lubicons made a terrible mistake allowing the oil companies to come into Lubicon Territory and extract billions of dollars of resources, and in the process destroying the Lubicon hunting and trapping economy and way of life, while the Lubicons talked, negotiated and litigated in front of an ex-head oil company lawyer turned provincial court judge, the ex-partner of the head oil company lawyer on the case turned provincial court of appeal judge, the provincial premier’s ex-family lawyer turned provincial court of appeal judge and an ex-oil company lawyer turned Supreme Court of Canada judge.

Following Fred Lennarson’s remarks Mr. Brewster angrily stormed out of the Lubicon office and caucused with his colleagues from Daishowa and Boucher Brothers who were outside waiting to meet Lubicon leaders. Shortly thereafter representatives of Daishowa and Boucher Brothers came into the office to meet Lubicon leaders.

Daishowa was represented by Fibre Superintendent Tom Hoffman, Wood Resources Manager Wayne Thorp and Human Resources Manager Stu Dornbierer. Boucher Brothers was represented by Norm and John Boucher.

Chief Ominayak asked Daishowa representatives about reports that indigenous people were being told they couldn’t hunt on Daishowa logging leases.

Mr. Thorp told Chief Ominayak that Daishowa had nothing to do with telling indigenous people they couldn’t hunt on Daishowa logging leases. He said provincial Fish and Wildlife had declared an area 400 meters on either side of a logging road to be a "wildlife sanctuary".

Chief Ominayak asked "What happens to the wildlife sanctuary when the area is clear-cut?"

Mr. Thorp told the Chief "The area is being protected from hunting, not from logging".

Mr. Boucher said "We’re here to show you people where we will log this winter." He said "We have a map" which he then unrolled and presented. The map showed an area at the northeast corner of Lubicon Lake immediately across the boundary from the proposed Lubicon reserve -- again right in the middle of Lubicon Territory.

Chief Ominayak asked "Who speaks for Daishowa".

Mr. Thorp said "Me and Tom speak on behalf of wood management".

Chief Ominayak asked "What about our agreement with Daishowa that there’d be no logging in the Lubicon area until Lubicon land rights are settled and a logging agreement worked out with the Lubicon people?"

Mr. Thorp claimed "Daishowa is respecting that agreement". He said "Daishowa is not logging in the Lubicon area".

Chief Ominayak pointed out that a wholly owned Daishowa subsidiary and three Daishowa sub-contractors are proposing to log for Daishowa in Lubicon Territory.

Mr. Boucher said "A lot of people in Nampa depend on logging for a livelihood". He asked the Chief "What are these people going to do if they can’t log?"

Chief Ominayak told Mr. Boucher "A lot of people have been doing very well stealing Lubicon resources". "However", he said, "we have an agreement with Daishowa that we expect Daishowa to honor".

Mr. Dornbierer repeated "Daishowa has no intention of breaking the agreement". "However", he said, "a distinction has to be made between Daishowa and these logging companies".

Chief Ominayak told Mr. Dornbierer "The distinction is unimportant". He said "The companies are either owned by Daishowa or are Daishowa sub-contractors". He said "The companies are operating in the Daishowa’s FMU (Forest Management Unit) pursuant to an agreement with Daishowa". "Consequently", the Chief said, "the Lubicon people will consider any logging done by these companies on Lubicon land to be a breech of the Lubicon agreement with Daishowa".

Mr. Dornbierer asked about the (federal government’s 1989 (take-it-or-leave-it settlement offer)".

Chief Ominayak gave Mr. Dornbierer a copy of the federal government’s 1989 take-it-or-leave-it settlement offer so Mr. Dornbierer could read it and judge for himself whether it was a serious attempt to settle Lubicon land rights. After reviewing the federal government’s 1989 settlement offer Mr. Dornbierer said "I can appreciate the frustration felt by the Lubicon people". He said "I hope this matter will be settled soon and we won’t face confrontation".

Chief Ominayak told Daishowa representatives "We won’t face confrontation if Daishowa honors our agreement".

On September 27, 1990 a spokesman for Brewster Construction named Doug Adikat announced that Brewster Construction would be seeking police protection for their planned logging operations in unceded Lubicon Territory. He said Brewster, as a wholly owned subsidiary of Daishowa purchased after the agreement between Daishowa and the Lubicons, didn’t consider itself bound by the agreement between Daishowa and the Lubicons.

Daishowa spokesman Crouse told reporters "The Company policy right now is we are not going to directly log in that area at all but that still leaves the problem of the contract people". "If they have no wood, they have no business, and it becomes a problem for (Daishowa) down the line in the chip supply (used by Daishowa to produce pulp)".

Chief Ominayak told reporters that the Lubicons didn’t intend to allow Daishowa to circumvent the agreement by working through a wholly owned subsidiary and sub-contractors. He said the Lubicon people would prevent any logging in unceded Lubicon Territory. He said "We stated very clearly that we have no intention of allowing anybody to steal any more or our resources".

Referring to Mr. Brewster’s September 24^th letter that Brewster Construction had "no alternative but to log in specified areas", Mr. Adikat told reporters that the company would be forced out of business and 60 people would lose their jobs if it could not log in Lubicon Territory that winter.

Chief Ominayak responded "We have a whole community of people who have been forced onto welfare by resource exploitation activity".

On October 6^th Norm Boucher of Boucher Brothers said that he’d been told by Daishowa Vice President Tom Hamaoka that planned logging operations in Lubicon Territory "will be dropped in order to avoid confrontation with the Lubicons". He said he agreed with the decision. He said "It’s just not right to bulldoze people". However, Mr. Boucher said, the decision "is good for this logging season only". He said "I guess next year (1991-92) we will have to go in there".

Asked by reporters how badly Brewster Construction needed to log unceded Lubicon Territory, Lyman Brewster said "It’s not necessary enough to go in there and get into trouble".

Also on October 6, 1990 the Deputy Minister of the Alberta provincial Forestry Department, Ken Higginbotham, told reporters a decision whether or not to "abort" logging plans in Lubicon Territory would be made the following week. He said "We are looking at the alternatives here, including alternative areas".

Mr. Higginbotham said "This is not strictly a Forestry matter". He said "That decision (to abort logging plans in the unceded Lubicon Territory) will require some political sanction". He said it would have to be "politically approved by Forestry Minister LeRoy Fjordbotten and Premier Don Getty".

On October 9^th Forestry Minister Fjordbotten announced "There will be no new forestry deals to compensate Daishowa Canada for delaying a timber harvest in land claimed by the Lubicon Lake Band".

On October 10^th, Daishowa spokesman Crouse announced "We are not logging in that disputed territory, nor are any sub-contractors or our subsidiary". However, he said, "Before coming to a final announcement, we want to sit down with Chief Ominayak". He said "That meeting will occur as soon as Daishowa Vice President Tom Hamaoka can arrange it".

On October 17^th a reporter phoned Lubicon advisor Fred Lennarson to discuss reports that "Bissell Brothers and Buchanan Lumber were being forced by the provincial government to provide wood to Daishowa and that Daishowa was being required by the province to accept that wood". The reporter told Fred Lennarson that "Bissell and Buchanan are not considered Daishowa sub-contractors in that they’d normally be harvesting the spruce and leaving the aspen to rot on the ground". However, the reporter said, "they’d both been given timber leases by the province that requires them to stack the aspen for pick-up by Daishowa and Daishowa is being required by the province to pick up that stacked wood".

Buchanan Lumber commenced logging operations in unceded Lubicon Territory at the end of October 1990. Shortly thereafter employees of Brewster Construction were caught bulldozing roads on Chief Ominayak’s trapline.

On November 8, 1990 Chief Ominayak issued a statement indicating that any unauthorized resource exploitation project operating in unceded Lubicon Territory would be "subject to removal at any time without further notice".

Alberta Attorney General Ken Rostad responded to the Lubicon statement by incorrectly characterizing the jurisdictional dispute between the Lubicons and Canada as a dispute between the Lubicons and logging companies. He said the Lubicons would "be making a foolish mistake if they didn’t respect provincial laws".

On November 19^th Lyman Brewster publicly denied Lubicon charges that his employees had tried to sneak into Lubicon Territory and were bulldozing roads on the Chief’s trapline. He claimed "The Lubicons ran into one of our people who was in the Lubicon area on his own for some unknown reason".

Mr. Brewster’s claims were immediately contradicted by the General Manager of Daishowa’s Edmonton Corporate Office, Jim Morrison, who announced "Brewster will commence logging operations tomorrow in the disputed area". Mr. Morrison claimed that Brewster’s logging of Lubicon Territory didn’t contravene the Lubicon agreement with Daishowa because that agreement supposedly provided that Daishowa would only stay out of unceded Lubicon Territory until the Lubicon concluded the Grimshaw Accord with the Alberta government.

The evening of November 24,1990 a logging camp belonging to Buchanan Lumber operating in Lubicon Territory without Lubicon consent was destroyed. No one was injured but equipment valued variously at between $20,000 and $50,000 was torched.

Daishowa spokesman Morrison responded by denying that there had ever been an agreement between Daishowa and the Lubicons. He claimed "What happened at that (March 7^th) meeting (between Daishowa and the Lubicons) was a discussion on the negotiations going on at that time between the Lubicons and the Province".

"What was decided", Mr. Morrison continued -- contradicting his previous statement that there had not been an agreement between Daishowa and the Lubicons -- "was that there’d be no logging in new areas". He claimed "Daishowa had not violated that agreement". He claimed "The Lubicons told Daishowa that Daishowa could continue to log in traditional logging areas". He claimed "That’s what Buchanan and Brewster were doing".

On November 26, 1990 Daishowa announced that it was "instructing" Brewster Construction to continue logging unceded Lubicon Territory despite destruction of the Buchanan logging camp. Allan Wahlstrom, General Manager of Woodlands and Lumber for Daishowa, said "We’re certainly concerned but we did avoid what we felt were the majority of sensitive areas of the Lubicon".

The response of the Royal Canadian Mounted Police (RCMP) to destruction of the logging camp was immediate and massive. Twelve to fifteen officers are known to have been assigned to the case full time. Phones were tapped. Police cars cruised around the Lubicon community of Little Buffalo Lake around the clock. Teams of officers interrogated Lubicon suspects for up to 5 hours at a time. People were held incommunicado for hours, denied access to legal counsel and then released without being charged. One 14 year old was taken from home at 2 am and interrogated in a garbage dump. At one point a Lubicon lawyer repeatedly asked to speak to his client during a 4-hour interrogation but RCMP refused to "interrupt the interview" so the suspect could speak to his legal counsel.

On December 12, 1990 the RCMP issued a press release stating that they were charging 13 Lubicons with the offenses of arson, mischief in causing damage over $1,000, possession of an explosive and wearing a mask while committing an indictable offense.

The first court appearance of the Lubicon 13 was on January 7, 1991.

The Lubicon position throughout the legal proceedings was that the Canadian courts do not have jurisdiction over unceded Lubicon Territory. The accused therefore stood mute before the court. The court entered a plea of "not guilty" on their behalf.

In making the charges the provincial government divided the accused into five different groups for trial allowing the government to issue subpoenas to some of the accused with regard to giving evidence against others -- despite the fact that all of the accused were charged with the same offenses. Lubicon lawyers argued unsuccessfully that this tactic was only a roundabout way of violating the constitutional right to remain silent and not to incriminate oneself. The issue was not resolved before the case collapsed for other reasons.

The RCMP also claimed that one of the accused was a "confidential police informant" whom they refused to identify requiring each of the accused to have a different lawyer. Government lawyers then used the claim that there was a "confidential police informant" to withhold information from the defense arguing that to do so would reveal the identity of alleged "confidential police informant". The judge allowed government lawyers to "edit" the information so as to protect the alleged "informant" but ruled that the name of the so-called "confidential police informant" would have to be revealed to defense lawyers in confidence before any evidence was given to the jury.

Full disclosure remained a problem throughout the trial. Government lawyers objected to providing defense lawyers with related RCMP files (including transcripts of phone taps). The judge allowed these files to be edited as well to supposedly protect the identity of the alleged "confidential police informant".

Under questioning about RCMP minutes about the investigation, one officer acknowledged that one of the accused was set up as the "fall guy’ in the obtaining of a search warrant under which the RCMP had broken into the trapping cabin of a different person who was never charged.

Another officer relied on notes that he’d made at the time and admitted he had not disclosed to the defense.

A third officer who’d testified that he’d let the Lubicon driver of a vehicle taking 5 Lubicons to hospital go after ten minutes was contradicted by the evidence and notes of another officer that the driver had been interrogated for 2 _ hours and for a full hour after expressly asking to be allowed to take the sick people to the hospital.

A fifth officer was unable to recall a comment in RCMP meeting notes instructing RCMP officers to "Grind them good".

A sixth officer described the investigation of a $20,000 arson as a "full scale investigation" involving five teams of two officers each, bought in from outside the area to question suspects, and a total of twelve to fifteen officers plus a senior government attorney.

At one point defense lawyers discovered that there had been a secret, "in camera" meeting involving the judge, prosecution lawyers and one of the police witnesses. This information, along with multiple problems with the issue of disclosure and abuse of constitutional rights led to a mistrial and eventually, in January of 1996, to a decision by the government not to proceed with the charges.

While the court case against the Lubicons was proceeding so was Daishowa. In a letter to the Chairman of the Toronto-based Task Force on the Churches and Corporate Responsibility dated April 12, 1991, General Manager of Daishowa’s Edmonton Corporate Office James P. Morrison wrote "Daishowa at no time made a commitment to the Lubicon Band that involved their traditional territory". Rather, Mr. Morrison wrote, "In March of 1988 Daishowa met with Chief Ominayak and explained the provisions contained in the proposed Forest Management Agreement".

"During the March 7, 1988 meeting", Mr. Morrison wrote, "Daishowa told the Chief that it would not log in the future (66 square kilometer reserve set aside in 1939) reserve". "Further", Mr. Morrison wrote, "due to the possibility that the reserve area could be expanded in the future as negotiations progressed, Daishowa told the Chief that it would do its best to avoid logging immediately adjacent to the proposed reserve area".

"When the Forest Management Agreement was signed in September of 1989 (between Daishowa and the Alberta government)", Mr. Morrison wrote, "a larger area of 243 sq. km. was provided for".

"Daishowa cannot", Mr. Morrison concluded, "indefinitely postpone the timber harvest to which it is entitled". "After all", Mr. Morrison wrote, "Daishowa’s $580 million dollar investment in the Peace River (pulp) mill was premised on having that secure wood supply".

This situation was reviewed in July of 1991 by organizations from across Europe concerned with human rights and environmental issues. On July 17, 1991 they passed a resolution which said:

In order to give force to the European resolution, meeting participants agreed to research and identify major Daishowa customers in their respective countries; to pressure major Daishowa customers in their respective countries to boycott Daishowa paper products unless Daishowa stays out of the traditional Lubicon Territory until the question of Lubicon land rights is settled; and to communicate and coordinate Daishowa boycott efforts with interested environmental groups across Europe and around the world.

Advised of the European resolution and European boycott plans, Mr. Morrison was dismissive. He characterized Daishowa as an "innocent third party". He said "the Europeans are just looking for publicity and sympathy."

One organization in Canada -- the Toronto-based Friends of the Lubicon -- soon became the focal point of the Boycott Daishowa campaign. Through research they identified companies using Daishowa paper products and Daishowa competitors from whom people could buy paper products instead. Working with Lubicon supporters in Alberta, they protested the City of Edmonton’s use of Daishowa paper products in Edmonton phone books. They called upon the Ontario Liquor Control Board to stop using Daishowa paper bags. They picketed the Pizza Pizza restaurant chain for using Daishowa paper products. Companies that had not been identified as Daishowa customers started contacting the Friends of the Lubicon and joining the boycott. Soon 50 major companies had joined the boycott.

Daishowa mounted a campaign of its own pointing out to the Mayor of Edmonton that Daishowa had "located our Alberta corporate office in Edmonton and have directly spent hundreds of millions of dollars on your city", arguing that the Peace River pulp mill represented a capital investment of $630 million "a good portion of this spent in Alberta and locally", claiming that "the mill is designed to comply with the standards set out in the provincial Licenses to Operate" and that "a variety of components of the effluent are closely monitored".

In a speech to the Edmonton Chamber of Commerce On October 9, 1991 Mr. Hamaoka said "Finally the Canadian and Provincial Governments simply must face up to their responsibilities across Canada to settle Native land claims". He said "It’s totally unacceptable to subject business -- foreign or domestic or innocent third parties -- to hostile threats and potential violent actions associated with unresolved land claims".

In February of 1995 -- plagued by the continuing Daishowa boycott and the public attention it focused on possible Daishowa activities in Lubicon Territory -- Daishowa launched a major legal action against boycott organizers. Daishowa claimed losses from the boycott of $5 million over the preceding three years and on-going losses at a current rate of $3 million a year. It asked the Canadian courts to enjoin the Toronto Friends of the Lubicon, certain named individuals associated with the Friends of the Lubicon and anyone having knowledge of the injunction from contacting Daishowa customers and asking them to stop buying Daishowa paper products. It asked that the Friends of the Lubicon and certain named individuals associated with the Friends of the Lubicons be ordered to pay court costs and an unspecified amount in damages to compensate Daishowa for the "irreparable harm" allegedly suffered by Daishowa as a result of the boycott.

The Daishowa legal action accused the Toronto Friends of the Lubicon of "illegal boycott activities" including inducing breach of contract between Daishowa and its customers, using "secondary" boycott and picketing tactics, conspiracy to injure, conspiracy to intimidate and spreading lies about Daishowa’s activities.

The charge of "illegal boycott activities" was based on labor laws passed in the 1930s to curtail the power of unions then considered to be a threat to western civilization. The relevance of outdated labor law to a consumer boycott outside of a labor dispute was questionable on technical grounds but the potential impact of such a legal action on the issue of freedom of expression was inescapable.

The "lies" that Daishowa claimed the Friends of the Lubicon had allegedly been spreading about Daishowa included that Daishowa was breaking an agreement with the Lubicons, is responsible for clear-cut logging in Lubicon Territory, plans to clear-cut in Lubicon Territory in the future and is complicit in genocide.

On May 19, 1995 Ontario Court Judge Frances Kitely declined to grant Daishowa an interlocutory injunction restraining the Toronto Friends of the Lubicon from boycotting Daishowa paper products. Judge Kitely rejected Daishowa’s accusations of wrongful interference with economic interests, inducing breach of contract, intimidation, conspiracy, defamation, injurious falsehoods and nuisance. She ruled that information pickets outside stores that use Daishowa products -- so-called "secondary picketing" -- are not illegal. She also ruled that Daishowa would not likely suffer greater harm from lack of an interim injunction than the Lubicons would suffer from clear-cut logging should the interim injunction be granted and clear-cut logging proceed.

With regard to the use of the term "genocide" Judge Kitely found the Toronto Friends "may have been intemperate" and ordered them to stop using the term. She also ordered the Toronto Friends to stop referring to the March 7^th agreement between Daishowa and the Lubicons because, she concluded, the existence of the agreement isn’t proven.

Daishowa immediately issued a press release announcing that "The Ontario Court of Justice today granted a court order prohibiting the Friends of the Lubicon from using misleading and untruthful statements in its boycott of Daishowa Inc. and imposed restrictions on future Friends of the Lubicon conduct". However, a spokesman for Daishowa said, Daishowa would be appealing the decision since "Daishowa remains concerned that an interim order was not made to protect its customers from secondary picketing and other unlawful boycotting activities".

On January 24, 1996 the Toronto Friends of the Lubicon read in the newspaper that the Kitely decision had been reversed the day before. Contacting the court about media reports, the Toronto Friends were told that they hadn’t been informed of the decision because their volunteer Sierra Legal Defense Fund lawyers are based in Vancouver and the Ontario courts don’t make long distance phone calls.

In a one to two decision, a panel of three Canadian judges ruled the Daishowa boycott illegal and granted Daishowa an interim injunction pending the hearing of Daishowa’s application for a permanent injunction and compensation for losses then estimated at $8 million Canadian. While finding that all boycotts aren’t necessarily illegal, the court held that boycotts intended to cause economic damage to the target company are illegal.

On the key issue of freedom of expression under the Canadian Charter of Rights and Freedoms, the presiding judge, Madam Justice Marie Corbett, found the Charter applies to the common law "only in so far as the common law is the basis of some governmental action which, it is alleged, infringes a guaranteed right or freedom". She wrote "The Charter does not apply to private litigation in the absence of government action". "Since no government action is involved", she wrote, the parties "owe each other no other constitutional duties".

The main action seeking a permanent injunction began in the fall of 1987 and was decided on April 14, 1998. The presiding Judge, James MacPherson, refused to grant the requested injunction. "Is there anything unlawful about such a consumer boycott", he wrote, "I think not".

"If the great principle of freedom of expression protects a corporation", Judge MacPherson wrote, "say Daishowa, whose simple message is ‘Here is why you should buy our products’, then is there any reason why the same principle should not protect a small group of consumers of Daishowa products, say the Friends, from saying to fellow consumers, ‘Here is why you should not buy Daishowa products?’" "In my view", he wrote, "there is no reason, in logic or in policy, for restraining a consumer boycott".

Judge MacPherson wrote that he had "serious doubts about using the phrase ‘secondary picketing’ to describe the second stage of the Friends campaign". He said "The Friends are engaged in a consumer boycott, not a labour dispute". He said he was persuaded "that the label ‘secondary picketing’ should not be used to describe the Friends activities in this case".

While allowing the consumer boycott to proceed, Judge MacPherson ordered the word "genocide" no longer be used, because, he said, "In my view the plain and ordinary meaning of the word ‘genocide’ is the intentional killing of a group of people".

Judge MacPherson also ordered no further reference to the March 7, 1988 agreement between Daishowa and the Lubicons concluding that the evidence did not support it.

Daishowa again immediately issued a press statement claiming that that the Ontario General Court had "granted Daishowa Inc. a limited injunction against the tactics used by the Friends of the Lubicon" The Daishowa press statement said the Judge "decided that the picketing of Daishowa’s customers by the FOL as part of their boycott campaign was not unlawful". It said "This legal aspect of the decision contradicts an earlier appeal Court decision where the FOL’s picketing was found to be unlawful". It said "The Company plans to appeal the contentious legal issue in the ruling regarding the legality of the FOL’s picketing of Daishowa’s customers".

The following week, on May 20, 1998, Daishowa President Tokiro Kawamura wrote Chief Ominayak "to formally advise you of DMI’s public commitment not to harvest or purchase timber in your area of concern, until your land issue is resolved with both levels of government, including harvesting rights, fish and wildlife concerns".

Chief Ominayak wrote back the following day as follows:

On June 11, 1998 Mr. Kawamura wrote the Chief back clarifying that "the area of concern which Daishowa-Marubeni International Ltd. made a commitment on May 20, 1998 is the approximately 4,000 square miles (10,000 square kilometers) outlined in the attached map". The area in outlined on the attached map was Lubicon Territory.

In 1999, while Lubicon land rights were under negotiation with Canada, the Alberta Regional Office of the Canadian Department of Indian Affairs gave a grant of $150,000 to a tribal council called the Kee-Tas-Kee-Now Tribal Council (KTC) to set up a new logging company called Kee-Tas-Kee-Now Logging Ltd. The KTC consists of the Whitefish, Loon and Woodland Bands.

Next the Department gave the new logging company an additional $65,000 to assist them in "negotiations with the resource sector, employment, business opportunities or to maximize financial benefits from resource development". Kee-Tas-Kee-Now Logging Ltd. then negotiated a deal to clear-cut trees for Daishowa within their so-called "traditional territory" -- much of which they claimed overlapped Lubicon Territory.

The Lubicons confronted both Daishowa and the federal land negotiator over the KTC/Daishowa agreement; Daishowa because it breached the 1998 agreement with Mr. Kawamura not to log or purchase timber from Lubicon Territory; the federal negotiator because agents of the federal government were acting to subvert land rights under negotiation at the table. Both pleaded ignorance of what had been done.

Daishowa agreed to revise the KTC deal so as to only purchase timber taken from outside Lubicon Territory. The federal negotiator arranged to have Department officials meet with the KTC and obtain agreement that KTC would confine their logging activities to an area outside of Lubicon Territory "at least for now".

On August 1, 2000 the Regional Office of Indian Affairs gave the KTC an additional $100,000 "to undertake efforts to form tripartite working arrangements (with forestry companies and the Alberta government)".

On August 15, 2000 the Regional Office of Indian Affairs gave the KTC an additional $20,000 "to develop business plans to negotiate the purchase of the Brewster Sawmill (from Daishowa)" which Daishowa indicated it wanted to sell "to reduce Daishowa’s debt".

Indian Affairs documents obtained by the Lubicons indicated that "the benefits of this (Indian Affairs sponsored and funded) project moving forward include joint ownership of (the Brewster) sawmill". The documents also indicated that Indian Affairs would be providing the KTC an additional $150,000 in 2001 toward purchase of the Brewster Sawmill.

The Alberta Regional Director of the federal Department of Indian Affairs, Barrie Robb, told the Lubicons that he didn’t think KTC purchase of the Brewster Sawmill would cause a problem because, he said, he understood "the new company won’t be cutting in (Lubicon Territory) for three years". He said "I think (Lubicon land) negotiations will be done in one and a half to two years" and "that (the three year lead time) would leave enough room to conclude (Lubicon land) negotiations".

Asked by the Lubicons to stipulate that KTC would have to stay out of Lubicon Territory until there’s a settlement of Lubicon land rights, Mr. Robb replied "They (KTC) might want to argue that they don’t want their business held up until Lubicon land rights are settled". He said "We can’t stop a group of (government sponsored and funded) First Nations trying to better their lives and we should support them".

Told by the Lubicons that the Department of Indian Affairs should not be using some indigenous people to subvert the rights of other indigenous people, Mr. Robb proposed to buy dinner for Chief Ominayak and the "Grand Chief" of the Kee-Tas-Kee-Now Tribal Council Paddy Noskiye "to discuss the details of the KTC proposal". He said, indicating that he understood very well the potential implications of setting up some indigenous people to clear-cut the Territory of other indigenous people, "We don’t want to see a war between the Lubicons and the KTC".

Pressed by the federal government to involve an experienced sawmill operator in operation of the Brewster sawmill, the KTC entered into a partnership with a British Columbia-based forestry company called West Fraser Timber Co. Ltd. to jointly buy Brewster Construction from Daishowa and to take over Brewster’s timber quotas -- including Brewster’s quotas in Lubicon Territory.

Following purchase of the Brewster Sawmill by West Fraser and KTC, the Regional Office of Indian Affairs provided KTC with additional funds to purchase logging equipment. Under pressure from the Lubicons at the Lubicon land negotiating table, the funds were provided on the condition that the equipment purchased with the grant money could not be used within Lubicon Territory.

Daishowa and the Lubicons continue to talk, primarily about harvesting techniques other than clear-cut logging that would be acceptable to the Lubicons post settlement of Lubicon land rights. Daishowa representatives regularly advise that the Alberta government is threatening to take away their logging rights if they don’t proceed in Lubicon Territory and argue that the Lubicons should allow them to do so since, they argue, they are more sensitive to Lubicon concerns than anybody else who might end up with those rights. The Lubicon position remains the same with Daishowa and everybody else; namely, no logging in Lubicon Territory until there’s a settlement of Lubicon land rights and an agreement negotiated with the Lubicon people respecting Lubicon wildlife management and environmental protection concerns.

The point of the foregoing history is that limited forestry in the unceded Lubicon Territory is not the result of a reassuring agreement with "the principal holder of (provincially granted) rights to log to timber (in Lubicon Territory) -- as falsely suggested in the Canadian submission -- but is rather the result of the continuing struggle of the Lubicon people to survive, to protect their traditional Territory from the known ravages of massive clear-cut logging and to achieve respect for their civil and political rights.

The Canadian submission says:

The facts are as follows.

On August 31, 2004 the Lubicons learned from newspaper reports that the province had issued oil sands exploration leases right in the middle of Lubicon Territory to a company with close ties to the Alberta government called Deep Well Oil and Gas. Deep Well Oil and Gas subsequently picked up additional adjacent leases through the takeover of another oil company giving them majority interest in oil sands leases covering over 160 square kilometers of Lubicon Territory.

Ex-provincial Culture and International Trade Cabinet Minister Horst Schmid is Chairman of the Deep Well Board of Directors. An ex-Shell oil executive named Len Bolger is one of the Directors. Mr. Bolger is also Co-Chairman of the Alberta Energy Research Institute. The Alberta Energy Research Institute is the planning arm of the provincial Energy Department.

Deep Well announced publicly that it intended to drill up to 512 wells in Lubicon Territory to extract heavy oil. Heavy oil is the small fraction of oil sands deposits that can be extracted using relatively conventional methods. Once the heavy oil has been extracted, companies use the infrastructure built to extract the heavy oil to begin extracting oil from the asphalt-like material in which most of it is embedded.

The method used to extract oil from tar sands deposits of the type found in Lubicon Territory involves injecting large amounts of superheated water or steam into underground layers of tar sands in order to liquefy the material sufficiently to be pumped out of the ground. It takes 4 to 5 barrels of water to produce one barrel of oil. Most of the water cannot be recycled and is lost from the surface of the earth forever. No one knows where all of this water will come from, or what impact pumping these huge amounts of steam into the subsurface will have on the water table and the fragile boreal ecosystem. The entire focus, especially with skyrocketing fossil fuel prices, is the money to be made.

On September 1, 2004 -- after reading in the newspaper about the new Deep Well leases in Lubicon Territory -- the Lubicons wrote Deep Well President and Chief Executive Officer Steven Gawne asking for a meeting to discuss Deep Well plans for Lubicon Territory. Mr. Gawne never responded.

On March 2, 2005 the Lubicons caught contractors working for Deep Well clearing a large area in Lubicon Territory. The contractors were asked to stop operations until a meeting could be held between the Lubicons and Deep Well as earlier requested. A number of attempts were also made to contact Deep Well to arrange a meeting. Deep well officials did not take or return the calls.

On March 3, 2005 Lubicon legal counsel Richard Gariepy received a phone call from Deep Well lawyer Robert Hladun alleging that the Lubicons were "blockading" the work site and claiming the blockade was costing Deep Well "$100,000 a day". Mr. Hladun gave Mr. Gariepy a cell phone number where "a senior Deep Well official" named John Brown could be reached. After a number of tries the Lubicons reached Mr. Brown and a meeting was arranged for later that same afternoon. (Mr. Brown was unavailable to meet earlier in the day because he was meeting with local RCMP asking for police protection for Deep Well contractors.)

Mr. Brown claimed to only be "a consultant" to Deep Well with no authority to make agreements or commitments. He agreed to set up a meeting with Deep Well officials the following week. He promised to phone back with a time and date for the proposed meeting with Deep Well officials. Mr. Brown failed to phone back as promised with a date and time for a meeting with senior Deep Well officials. Deep Well officials continued to ignore repeated efforts to contact them directly.

The Lubicons contacted the Alberta Energy and Utilities Board (AEUB) and inquired about the work Deep Well was doing in Lubicon Territory. The AEUB is the provincial regulatory body responsible for issuing licenses and permits for gas and oil wells in Alberta. Deep Well had not applied to the provincial regulatory agency for the required drilling licenses and the AEUB was unaware that Deep Well had clear-cut a large area in Lubicon Territory involving approximately 18 truck loads of spruce trees and 12 truck loads of aspen trees.

The AEUB ordered the work to stop pending procurement of the required drilling license. Deep Well retroactively initiated the process for obtaining a well license for a single well at the cleared site.

Aware from public information that the proposed project involved 512 wells the Lubicons began exploring means to assess the cumulative environmental impact of the proposed 512 well project rather than just the impact of this first well.

No environment assessment of a project like the one proposed by Deep Well is required in Alberta until the company builds a plant on site to process the oil. All that is assessed is the impact of each individual well ignoring the fact that the cumulative amount of contaminants generated by 512 wells is perforce significantly greater than that produced by each of the 512 individual wells. The company could consequently drill 512 wells; build whatever roads, pipelines and other surface infrastructure they require -- and inject 4 or 5 barrels of steam or superheated water into the subsurface for every barrel of oil extracted -- without any assessment of the cumulative environmental, social and economic impact of these activities on the Lubicon people and Lubicon lands. By the time potentially adverse effects of a large-scale tar sands operation are apparent, the damage could have been done. Moreover by the time the plant is proposed the baseline environment will have been significantly altered rendering meaningful environmental assessment impossible.

In addition the mandate of the AEUB has more to do with management of the resource than it does with protection of the environment. In 2005, for example, the people of a non-indigenous community in northeastern Alberta called Bonnyville were horrified to learn that the AEUB had approved the drilling of a gas well under the lake from which the people of Bonnyville obtained their drinking water. The people of Bonnyville appealed the AEUB decision approving the drilling of the well. The AEUB reaffirmed their approval. The AEUB decision reaffirming the approval reads, in part:

The Canadian Federal Minister of the Environment is empowered under Section 48 of the Canadian Environmental Assessment Act (CEAA) to order an environmental assessment of a proposed project if he is of the opinion "that the project may cause significant adverse environmental effects on lands...in respect of which Indians have interests".

On April 12, 2005 Chief Ominayak wrote the federal Minister of the Environment, Stéphane Dion, asking for a full panel environmental assessment of the Deep Well Oil and Gas heavy oil extraction project.

The Chief wrote that the Lubicons are concerned that the project might contaminate the air, lands and water in Lubicon Territory.

The Chief wrote, in part:

On September 9, 2005 Chief Ominayak received a letter from the Director of the Regional Office of the Canadian Environmental Assessment Agency, R. Lanny Coulson, responding to the Chief’s April 12^th letter to the federal Environment Minister. Mr. Coulson’s letter was dated August 30, 2005. Mr. Coulson wrote, in part:

The Chief responded to Mr. Coulson’s letter on September 12^th as follows:

On October 4, 2005 Chief Ominayak received a letter from Director Coulson responding to the Chief’s letter of September 12^th. It reads:

The Lubicons have heard nothing further from Mr. Coulson, from "The Agency" or from the federal Environment Minister.

On March 11, 2005 Lubicon lawyer Richard Gariepy wrote the President of Surge Global Energy Fred Kelly explaining Lubicon concerns with the project, advising Mr. Kelly of repeated Lubicon attempts to discuss the project with Deep Well and Deep Well’s lack of response. The Lubicon lawyer received no response from Mr. Kelly.

Walter Whitehead, the trapper on whose trapline the proposed Deep Well/Surge oil sands project is located, wrote to Deep Well President and CEO Gawne on March 30, 2005 advising Mr. Gawne that Walter Whitehead had never been consulted and expressing his concerns about the proposed project. A noted copy of Walter Whitehead’s letter was sent to Surge President Fred Kelly. Neither Mr. Gawne nor Mr. Kelly ever responded to Walter Whitehead’s letter.

On July 8, 2005, Walter Whitehead received a letter from Surge President Kelly dated June 22, 2005. The letter gave Walter Whitehead "10 day notice as requested of Surge by Alberta Environmental Protection" that Surge has "recently applied to Alberta Environment for access onto lands covered...on the attached survey plan". The letter advised Walter Whitehead that "traps and traplines affected by this disposition should be removed/relocated at this time to prevent accidental damage".

Walter Whitehead responded to Mr. Kelly by fax on July 11^th telling Mr. Kelly "it’s a little late to warn me about potential damage to traps and trap lines when your contractors already cleared a large site on my trapline (the previous March 2^nd) without any notification or consultation". Walter Whitehead told Mr. Kelly "the lands you are proposing to tear apart are at the heart of the Lubicon Lake Indian Nation’s unceded traditional Territory". Walter Whitehead advised Mr. Kelly "your project will not be allowed to go ahead while you continue to ignore the Lubicon Nation’s request to meet and discuss the proposed project". Walter Whitehead received no reply to his July 11^th fax to Mr. Kelly.

In the meantime Lubicon supporters were informed about the developing problem with Deep Well and its partners Surge Global Energy, Pan Orient Energy and Paradigm Oil and Gas. Opposition politicians raised questions in the provincial legislature. European supporters contacted potential investors. Environmental groups issued statements. Newspaper reporters wrote stories. High school students wrote letters. Market analysts wrote articles and made predictions. A debate raged on the Internet between Deep Well/Surge investors who blamed the company for precipitously falling stock prices and those who blamed the Lubicons.

Surge Chairman David Perez phoned the Lubicon office and a meeting was agreed for July 31, 2005. During that meeting Mr. Perez made a number of commitments including a commitment not to use potable or surface water to extract heavy oil and a commitment to seek Lubicon agreement not to oppose proposed activities before applying to the province for provincially required licenses and permits.

Formalizing agreements in writing with the involved companies proved more difficult. However, on October 14, 2005 a Letter of Agreement was signed between Surge Global Energy, its partners and the Lubicon Lake Indian Nation.

In December of 2005 operating responsibility for the Sawn Lake project passed to another corporate entity created by the participating companies called Signet Energy. Signet Energy officials have verbally indicated that they will honor the terms of the Surge agreement but as yet there is no agreement in writing with Signet.

Where all of this is going is unclear. The Lubicons oppose environmentally threatening "enhanced recovery" steam injection techniques for exploiting the tar sands in their Territory in the same way they oppose clear-cut logging. What acceptable alterative technology might be developed to exploit the involved resource is as yet unknown. At the moment there is no economically viable alternative technology available begging the question of what happens next. Lubicon experience with resource companies to date is not encouraging.

The point of the foregoing, as in the case with the Daishowa agreement, is that the situation with regard to the agreement with Surge et al. is not as simple, straightforward and reassuring as the companies involved have "signed an agreement with the Lubicon Lake Cree giving them a say in oil drilling...and indicated that the Lubicon will be consulted by them on future drilling plans before they apply to the province of Alberta for further permits". The Surge agreement is again the result of the continuing struggle of the Lubicon people to survive, to protect their traditional Territory and to achieve respect for their civil and political rights.

The Canadian submission says "Wildlife management and conservation, generally speaking, are matters that fall within provincial jurisdiction under the Canadian Constitution". That is the position of Canada but it is not the position of the Lubicon Lake Indian Nation and, as indicated earlier, it is arguable under Canadian law.

Lawyers for Canada and Alberta assert that Canada transferred Lubicon land to Alberta by virtue of the 1930 Land Transfer Agreement; that the Lubicons are covered by Treaty 8 and that Lubicon land rights consist only of an outstanding land entitlement under Treaty 8 and Section 10 of the 1930 Land Transfer Agreement. The sections in the Canadian submission entitled "Commercial Trapping" and "A Constitutional Right to Hunt and Fish for Food" rely upon acceptance of those assertions.

The Lubicons do not accept these assertions by Canada either as matters of fact or as matters of law. As indicated earlier, the Lubicons are not a party to Treaty 8; Lubicon Territory was not ceded to Canada by Treaty 8 in 1899; Lubicon lands are an "interest other than that of the Crown in the same" under Section 1 of the 1930 Land Transfer Agreement; and Lubicon land rights were therefore not properly transferred to Alberta by virtue of the 1930 Land Transfer Agreement but remain intact and unceded in any legally or historically recognized way.

At the negotiations of Treaty 8 the Treaty Commissioners found that the Indians were reluctant to sign Treaty 8 for fear that doing so might adversely affect their hunting, fishing and trapping rights. The Indians were repeatedly assured that their way of life would not be disrupted except to the extent that the land would be shared. The Superintendent-General of Indian Affairs Clifford Sifton assured the Indians "There is not likely to be any marked change on account of the making of the Treaty". The Lieutenant Governor of the Territories and Treaty 8 Commissioner David Laird told the Indians that any laws made for the conservation of fish and wildlife were "rather for the benefit of the Indians than of whiteman, as the whitemen live more on farm products than game".

The official report of the Commissioners regarding the negotiation of Treaty 8 reads:

The written text of the treaty, however, instead provides:

It is the position of the government of Canada that it is only legally bound by the written text of the treaty, not by the written report of the Treaty Commissioners describing what was negotiated and agreed.

Starting in the early 1920’s, and presaging developments in Lubicon Territory 50 years later, an influx of white trappers into Northern Alberta threatened the livelihood of many Indians who turned to the federal government for protection of their Treaty 8 hunting, trapping and fishing rights. These were the same Indians who had been assured 20 years earlier that their hunting, trapping and fishing rights would be preserved. In addition the department had its own concerns; namely, the prospect of increasing welfare costs for Indians who were no longer economically self-sufficient.

The Annual Report of the Department of Indian Affairs to March 31, 1929 reads as follows:

The Alberta Natural Resources Act of 1930 contains a single section pertaining directly to Indian hunting, trapping and fishing rights. In that section, section 12, "...Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, fishing and trapping game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access".

The federal government was not prepared to abandon it’s interest in Indian hunting, trapping and fishing rights with the transfer of natural resources to Alberta. The Indian Affairs Branch was facing growing protests from Indians charging that their hunting, trapping and fishing rights under Treaty were being abridged, and the increasing cost of relief to Indians who could no longer make a living by traditional means.

Throughout the 1930’s the federal government continued to press the Alberta government for the establishment of exclusive hunting preserves for Indians. The province discussed the idea with federal officials but turned most of its attention to the development of a profitable trapping industry in Alberta. Since the 1920’s, when white trappers had greatly increased the fur harvest in the province and the province had imposed a tax on fur exports, the revenues accruing to the province from trapping had become quite substantial. Prior to the advent of large-scale trapping by whites, the Chief Alberta Game and Fish Guardian noted in the Annual Reports of the Department of the Alberta Department of Agriculture, 1923-34, Indians only hunted and trapped to meet their needs.

Federal officials argued that exclusive Indian hunting, trapping and fishing preserves were in the interests of conservation. Provincial officials recognized the need for conservation but their interest was in protecting provincial revenues rather than protection of Indian rights or concern with federal welfare rolls. As put by the Chief Alberta Game and Fish Guardian in the Annual Reports of the Department of the Alberta Department of Agriculture, 1923-34, game conservation was seen as "...nothing more or less than a business proposition".

By 1937 a Catholic Bishop named Breynat had collected affidavits from witnesses to Treaty 8 attesting that the Treaty 8 Commissioners had specifically promised as part of the Treaty 8 negotiations that Indians would be protected from white competition in hunting and trapping. As a result of this renewed pressure, in 1938 the Alberta government once again exchanged correspondence with the federal government on the issue of establishing exclusive Indian hunting, trapping and fishing reserves. The province was prepared to consider establishment of exclusive Indian hunting, trapping and fishing preserves in exchange for the federal government assuming financial responsibility for the health and education of non-status persons of mixed Indian/non-Indian lineage or Metis. This proposal was unacceptable to the federal government.

After 1938 Alberta assumed an increasingly unsympathetic attitude towards establishing exclusive Indian hunting, trapping and fishing preserves pursuant to Treaty 8. In 1939 the province implemented the provincial trapline registration system with a deliberate policy of no preference towards Indians in allocation of provincially recognized traplines.

The Canadian submission says "As of 1995-96 moose populations have improved in the area claimed as traditional territory used by the Lubicon Lake Cree". It attributes this information to an Alberta government study entitled "General Status of Alberta Wild Species 2000" and to the Sustainable Resources Development website of the Province of Alberta.

A review of the sources cited in the Canadian submission contains no reference to moose populations in the Lubicon area. Rather the cited report says only that moose populations in the province as a whole are not at risk.

The Canadian submission says:

In fact the AEUB replaced a predecessor organization called the Energy Resources and Conservation Board (ERCB). History relevant to the issue of consultations and provincial regulation of energy projects is as follows.

In 1984 Shell Oil proposed to build a 200 million dollar expansion on their Peace River tar sands facility just to the west of Lubicon Territory. Prevailing winds carry contaminants from the Shell plant into Lubicon Territory.

A public hearing was held to hear presentations from concerned citizens. The Lubicons made a presentation raising a variety of serious environmental questions the Shell application had failed to address. The ERCB listened politely to the concerns and then approved the facility without responding to the environmental questions raised by the Lubicons.

The following February, Chieftain Development applied to the ERCB to build a major new pipeline across Lubicon Territory. The Lubicons asked their supporters to write directly to the President of Chieftain supporting the Lubicon position that major new energy construction projects should not be commenced prior to settlement of Lubicon land rights. Chieftain Development cancelled the project.

In June of 1985 the Lubicons learned that the Rainbow Pipeline Company had applied to the ERCB for permission to build a major pipeline across Lubicon Territory. The Lubicons prepared to oppose it.

On Friday, July 19, 1985 a lawyer for the ERCB hand-delivered a letter to a Lubicon lawyer that read, in part:

The requested meeting was held in Peace River on August 1, 1985. ERCB representatives reiterated their position that the Lubicon complaint was "outside of the Board’s jurisdiction". They said they had no authority to stop development of resource exploitation activity "merely to keep the area the same". They said they had therefore decided "to process" the Rainbow application without holding a public hearing which they said was not a requirement but a matter of discretion on their part. They said they were "meeting with the Band only to explain the Board’s decision".

The Lubicons challenged the ERCB’s contention that holding a hearing was a matter of discretion pointing out that the ERCB’s enabling legislation required the Board to give notice to any person who might be directly and adversely affected by a proposed energy facility and, if that person objects to the proposed development, an opportunity to ask questions and present evidence. The Lubicons noted the mandate does not specify certain types of adverse affects or certain kinds of rights.

Under the circumstances, Lubicon representatives told ERCB representatives, the only available Lubicon recourse was to challenge the Boards interpretation of its enabling legislation in the courts. Challenging the Board’s interpretation of the enabling legislation would have cast the sustainability of Board approval decisions in doubt.

The President of the Rainbow Pipeline quickly intervened agreeing to consult with the Lubicons on Lubicon wildlife management and environmental concerns and to offer the Lubicons work on the project in areas they were prepared and qualified to be involved.

On October 2, 1985 ERCB Board member Victor Bohme phoned Lubicon advisor Fred Lennarson and advised that the ERCB had received an application from Union Oil Company to "loop" or "twin" an existing pipeline across the 66 square kilometer area set aside for a Lubicon reserve in 1939. "Looping", Mr. Bohme explained, is a means of increasing pipeline transmission capacity by constructing a second pipeline parallel to an existing pipeline and then connecting the two pipelines at either end.

Mr. Bohme said he wanted to arrange a meeting between the Lubicons and the Union Oil Company so officials of Union Oil Company could explain the employment and other benefits which the Lubicons could expect as a result of pipeline construction. On instructions Fred Lennarson told Mr. Bohme that the Lubicons opposed construction of another pipeline through the area set aside for a Lubicon reserve in 1939 and asked Mr. Bohme if the ERCB would be giving the Lubicons formal notice of the Union application. Mr. Bohme assured Mr. Lennarson that the ERCB would be giving the Lubicons formal notice of the Union application.

On October 7, 1985 Lubicon lawyer James O’Reilly received a phone call from federal negotiator E. Davie Fulton advising that officials of Union Oil "were seriously considering a proposal (from Mr. Bohme) to meet with the Band for the purpose of explaining to Band members the urgency of a pipeline across the 64 square kilometers set aside in 1939 and how little damage would be done to Lubicon lands". In any event, Mr. O’Reilly was told, Union Oil planned to proceed with the pipeline in a couple of weeks. Mr. O’Reilly told Mr. Fulton that he doubted the Lubicons would be interested in a meeting to discuss a decision already made which everybody knew the Lubicons opposed.

On October 8, 1985 Lubicon lawyer Ken Staroszik talked with Union Oil lawyer Richard Kline about the Union Oil pipeline. Mr. Kline tried to convince Mr. Staroszik that building the pipeline across the 66 square kilometers set aside in 1939 would cost the least money and cause the least amount of environmental damage because the lands outside the 66 square kilometers were mainly wetlands. In addition, Mr. Kline argued, because the surrounding area was mainly wetlands, construction outside the 66 square kilometers would could not be done immediately but would have to wait until freeze up and Union Oil wanted to proceed immediately. Mr. Kline asked Mr. Staroszik if Mr. Staroszik could speak to the Lubicons about the matter and arrange for a meeting.

Mr. Staroszik consulted with Mr. O’Reilly. Mr. O’Reilly told Mr. Staroszik that the Lubicons had declined to meet with Union about the pipeline because the only declared purpose of the meeting would be to discuss a decision already made. If Union was prepared to consider other possibilities, Mr. O’Reilly suggested, they should make their proposals to the Lubicons through Mr. Fulton.

On October 10, 1985 the Indian Affairs Critic of the Liberal Party of Canada Keith Penner raised the Lubicon issue in the House of Commons asking the Indian Affairs Minister David Crombie about the Lubicon situation pointing out that an "All-Party Report on Indian Self-Government tabled in 1983 made particular reference to the Lubicon Lake Indian Band in Alberta". Mr. Penner said "The way of life and the economy of that Band have been virtually destroyed by development activity..." He said "Last winter the Minister appointed E. Davie Fulton to make an inquiry into this situation". He asked "Is the Minister prepared to table any and all reports that the Hon. E. Davie Fulton has made concerning the situation of the Lubicon Lake Indian Band?"

Mr. Crombie responded that he’s spoken to Mr. Fulton and provincial minister responsible Milt Pahl the day before; that Mr. Fulton was "mediating the matter between the two levels of government and the Indian people involved"; that Mr. Fulton is preparing a further report on the matter and he asked "for the Hon. Member’s patience".

The Indian Affairs Critic of the New Democratic Party of Canada Jim Manly issued a press release that said, in part:

Dennis MacDermott, President of the Canadian Labour Congress, issued a press statement that said, in part:

On October 22, 1985 Chief Ominayak held a press conference in Ottawa announcing Lubicon opposition to proposed construction of a pipeline across Lubicon lands by Union Oil of Canada. Joining Chief Ominayak in the press conference was the Primate of the Anglican Church of Canada Archbishop E. W. Scott, the National Chief of the Assembly of First Nations Georges Erasmus, the Indian Affairs Critic for the Liberal Party of Canada Keith Penner, and the Indian Affairs Critic for the New Democratic Party of Canada Jim Manly. Archbishop Scott spoke on behalf of an interchurch coalition sponsored by the Canadian Conference of Catholic Bishops, the Anglican Church of Canada, the United Church in Canada, the Presbyterian Church in Canada, the Society of Friends (Quakers), the Mennonite Central Committee, the Evangelical Lutheran Church in Canada and the Christian Reformed Church. Dennis McDermott, President of the Canadian Labour Congress, made a public statement in support of the Lubicon position while the Lubicon press conference was in progress.

On October 31, 1985 the Confederation of First Nations unanimously passed a resolution opposing the pipeline and supporting the Lubicons.

On October 23, 1985 E. Davie Fulton responded to a letter of October 18^th from Indian Affairs Critic for the New Democratic Party of Canada Jim Manly as follows:

On November 7, 1985 there was a demonstration of Lubicon supporters in front of Union Oil’s Calgary office. Participating in the demonstration were Calgary Alderman Bob Hawkesworth, Director of the Social Action Arm of the United Church of Canada Carolynne Bouey Shank and President of the Indian Association of Alberta Wilf McDougall. Director Bouey Shank said "Land claims negotiations should continue without pressure from Union Oil’s development plans in the disputed area; Alderman Hawkesworth called on the ERCB to table the Union Oil pipeline application until Lubicon land rights are settled and a public hearing is held on the matter; President McDougall pledged 100% support for the Lubicon struggle to block development until Lubicon land rights are settled and said the IAA would help man barricades if Union Oil attempted to build the pipeline across Lubicon lands.

Responding to the demonstration, a Union Oil spokesman told reporters "The Company considers the land claim to be a matter between the band and the federal and provincial governments and the planned pipeline will not add significantly to any environmental disruption".

On November 11, 1985, upon a motion by the Alberta Federation of Labour, the Annual Convention of the Alberta New Democratic Party unanimously passed a resolution opposing the pipeline and supporting the Lubicons.

On November 14, 1985, the Vice President of Operations for Union Oil John Vandermeer told reporters "We foresee no adverse impact whatsoever on area wildlife and construction itself is a matter of days".

At a November 18, 1985 meeting of the Parliamentary Standing Committee on Indian Affairs and Northern Development, Indian Affairs Critic for the New Democratic Party of Canada Jim Manly asked Indian Affairs Minister Deputy Minister Bruce Rawson for a progress report. Deputy Minister Rawson said:

Mr. Manly responded:

Later in that same session of the Standing Committee Mr. Manly asked Indian Affairs Minister David Crombie about Mr. Fulton’s report and recommendations regarding settlement of Lubicon land rights. Mr. Crombie responded:

Mr. Manly told Mr. Crombie:

On November 21, 1985 Chief Ominayak obtained a copy of a letter written to the ERCB by Union Oil lawyer Richard Kline. Mr. Kline claimed that Union Oil had made a number of attempts through a number of intermediaries to try and arrange a meeting with the Lubicons but the Lubicons had refused to meet. "As a result", Mr. Kline wrote, "Union Oil feels that it has done its utmost to attempt to listen to the concerns of the Band and deal with them, however, it has been rebuked in every attempt to meet with them." "As a result", Mr. Kline wrote, "Union Oil desires to proceed with its application and requests the ERCB proceed accordingly".

Chief Ominayak responded to Mr. Kline’s letter that same day in a letter to the Chairman of the ERCB, Mr. Verne Millard, as follows:

On January 15, 1986 Union Oil Vice President Vandermeer phoned Chief Ominayak and asked for a meeting. Mr. Vandermeer told the Chief Union Oil was prepared to discuss alternatives to "looping" the pipeline across the 66 square kilometer area set aside in 1939. A meeting was agreed for January 17^th.

After repeating Union Oil’s known arguments as to why "looping" the pipeline across the 66 square kilometer was the best alternative, and repeatedly asking the Lubicons what they’d take by way of financial compensation to allow Union Oil to do so -- which the Lubicons repeatedly refused to consider -- Mr. Vandermeer proposed to "loop" the pipeline only to the northern border of the 66 square kilometer area and then starting again on the other side of the southern border. This arrangement would allow Union to transport a greater volume of oil without requiring any construction activity on the 66 square kilometer area set aside in 1939.

Union further agreed to consult the Lubicons regarding Lubicon wildlife and environmental concerns in the immediate area of any construction activity and to offer the Lubicons construction related work the Lubicons were prepared and equipped to do.

The Lubicons agreed to talk again about the possibility of "looping" the pipeline across the 66 square kilometer area after Lubicon land rights had been settled.

Following the agreement with Union Oil, and in an effort to avoid the kind of public confrontation that had just taken place, the ERCB agreed to ask companies to consult with the Lubicons prior to making application to the ERCB respecting proposed projects in Lubicon Territory and to hopefully obtain Lubicon agreement not to oppose an application to the ERCB. If agreement not to oppose could be made, an application to the ERCB would go forward in the normal way.

As long as the proposed project didn’t threaten a particularly sensitive site such as a burial ground, or the area the Lubicons sought to retain for reserve purposes post settlement -- and the company agreed to offer the Lubicons related work the Lubicons were prepared and equipped to do -- agreement not to oppose could usually be made within 24 hours including checking with the involved trapper and faxing off a letter to the ERCB agreeing not to oppose.

In the next several years hundreds of such agreements not to oppose were negotiated. Fewer than a dozen proposed projects had to be cancelled or modified to take Lubicon concerns into account.

In October of 1993 Union Oil, now renamed Unocal, contacted the Lubicons to discuss agreement not to oppose expansion of an existing oil battery station and construction of some new feeder lines. An oil battery station collects oil for transport out of the area by pipeline. Feeder lines connect oil wells from a surrounding oil field to the battery station. Billed simply as add-on to existing facilities the Lubicons saw no reason for concern and agreed not to oppose an application to the ERCB.

The construction was subsequently approved and built. It was only later that the Lubicons learned that the so-called "plant expansion" added a sour gas processing facility to the existing oil battery station. A potentially deadly sour gas processing plant located on a hill overlooking the proposed reserve area, down wind and down stream and less than 3 kilometers from the area the Lubicons seek to retain for reserve purposes, was a different matter.

After Unocal got caught trying to slip construction of a sour gas processing plant past the Lubicons by deceit they first tried to argue that they didn’t need Lubicon agreement not to oppose because, they claimed, their new sour gas processing facility was outside the 247 square kilometer area proposed reserve area and was therefore supposedly outside of the ERCB "notification area". This claim was demonstrably untrue. Their original letter to the Lubicons on this matter reads "We have been advised by the Energy Resources Conservation Board that the consent of the Lubicon Lake Nation must be obtained in support of the referenced plant expansion".

Told that their new sour gas processing plant was well within the so-called ERCB "notification" area Unocal argued that the notification area shouldn’t be any bigger than the proposed reserve area because, they argued, the original agreement provided for a bigger area only because nobody knew in 1986 how big an eventual Lubicon reserve would be or where it would be located. The 1986 ERCB agreement in fact had nothing to do with protecting an eventual reserve area but rather with protecting particularly sensitive Lubicon sites scattered throughout Lubicon Territory including 19 different burial grounds.

The Lubicons appealed the approval of the Unocal sour gas processing facility on the grounds that Unocal had deceived both the Lubicons about the sour gas processing plant, and the ERCB about Lubicon agreement not to oppose construction of a sour gas processing plant.

The hearing lasted ten days over a three week period in November and December of 1994.

A number of interveners applied to give evidence in support of the Lubicon appeal. Unocal tried unsuccessfully to disqualify all interveners under threat by the Unocal lawyer Brian O’Ferrell -- who is coincidentally a law partner of ex-Alberta Premier Peter Lougheed -- that an adverse ERCB decision would "negatively the way Unocal views Alberta as a place to invest".

The President of Unocal Canada Fritz Pershon attended the hearing throughout supported by several other senior Unocal officials, the ex-head of the provincial Native Affairs Secretariat now hired as an expert witness by Unocal, current senior provincial Native Affairs officials backing up Unocal lawyers and the ex-head of the provincial Native Affairs Secretariat, an ex-provincial government wildlife officer hired by Unocal on contract and representatives of an environmental consulting firm which is coincidentally partners with the provincial government in ownership of a controversial toxic waste disposal plant which the province guarantees a profit based on a percentage of the cost of its growing facilities despite having considerable excess capacity.

Lubicon Chief and Council also attended throughout supported by local, provincial, national and international environmental organizations; Indian Nations and organizations; organized labor; human rights organizations; civil rights organizations; aboriginal rights organizations; church representatives, the Alberta Liberal Party, the Alberta New Democratic Party and members of the Lubicon Settlement Commission of Review.

Regarding Lubicon charges of fraud the ERCB concluded that "there was a misunderstanding between the parties in the discussion of this project prior to the issuance of the plant approval". That wasn’t the evidence. The Lubicon evidence was that Unocal didn’t tell the Lubicons about plans to build a sour gas processing plant. The Unocal evidence was that Unocal did tell the Lubicons verbally about plans to build a sour gas processing plant but didn’t provide the Lubicons with written materials on it in any of the written materials they’d given the Lubicons because they thought their plans could be better explained to the Lubicons verbally.

The ERCB decision goes on to say "While there is some onus on the applicant (Unocal) to present the proposed development in a fair way, there is also an obligation on the affected parties (the Lubicons) to make efforts to understand the implications of the project". It says "It is not evident that such efforts were made by the Lubicons in securing advice from those in a position to provide it."

On the question of whether the Lubicons retain unceded aboriginal land rights over traditional Lubicon Territory, and thus whether an agency of the Alberta government had the right to approve construction of a sour gas processing facility on Lubicon Territory, the ERCB concluded both that "the Board...has no authority to enter into such issues", and that "The Board believes it has full statutory authority to regulate energy related activities on this disputed land and holds the view that the mineral and land surface leases were properly obtained by Unocal from the (Provincial) Crown".

Going beyond the issue of the Unocal sour processing plant, the ERCB cancelled the 1986 "notification agreement" accepting the factually inaccurate Unocal argument that it was based on protecting an eventual reserve area the location of which nobody knew in 1986 but is now known.

The Canadian submission says:

The truth is as follows.

In 2004 a provincial official named Andy Masiuk provided the Lubicons with a draft copy of Alberta’s "Proposed First Nations Consultation Policy on Land Management and Resource Development". That was the extent of Lubicon involvement in its development. The other First Nations in Alberta have all rejected the provincial government’s new First Nations consultation policy as inadequate, unsatisfactory and unacceptable.

Mr. Masiuk told the Lubicons that the new provincial "Consultation Policy" covers basically the same ground and supercedes a wildlife management agreement and environmental protection agreement negotiated between the Lubicons and the provincial government in 1988, pursuant to the Grimshaw (reserve land) Accord, and designed to come into force at the point of settlement of Lubicon land rights. In fact this new provincial "Consultation Policy" does not cover the same ground as the 1988 agreement and the Lubicons do not accept that the provincial agreement has the right to unilaterally decide to replace an agreement that provides, among other things, "This Agreement may only be amended by the mutual agreement of Alberta and the (Lubicon Lake) Band".

The 1988 agreement between the Lubicons and the province "Respecting Wildlife and Integrated Land Use Management for the Lubicon Lake Area" creates, concurrent with settlement of Lubicon land rights, a special provincial wildlife management unit covering the entire 10,000 square kilometer Lubicon Territory -- managed by a Wildlife Management Council on which the Lubicons have significant representation -- with powers and responsibilities that include:

a.) allocation of traplines (Registered Fur Management Areas);

The province’s new "First Nations Consultation Policy on Land Management and Resource Development" only requires companies or government to consult with the First Nation "where the development of natural resources on Crown land may infringe First Nations’ Rights and Traditional Uses". It does not require companies or government to accommodate First Nations’ Rights or Traditional Uses. The requirement is to consult; not to reach agreement. Having consulted the company or government can proceed. The obligation to consult under the new provincial consultation policy has been met. The process is controlled by Alberta and all decision-making power remains with provincial regulatory bodies.

The Canadian submission says:

The truth is as follows.

Canada’s "offer to the Lubicon Lake Cree with a view to satisfying Canada’s obligations pursuant to Treaty 8" was unexpectedly dropped on the Lubicons on a "take-it-or-leave-it’ basis on January 24, 1989. The Lubicons were told negotiations were over if they didn’t accept it. They didn’t accept it and negotiations ended.

The 1989 Canadian offer was based on normal government programs and services available to all Indians in Canada irrespective of land rights. It included neither financial compensation nor self-government and made no provision for the Lubicons to once again achieve economic self-sufficiency. The details of Canada’s 1989 "take-it-or-leave-it" are provided in Lubicon Supplement No.10 to Communication No. 167/1984 dated 22 March 1989.

Normal Canadian government programs and services for Indians in Canada provide for subsistence and intergenerational poverty and dependency on government provided welfare. They are neither designed nor intended to provide for self-sufficiency. The Lubicons rejected the 1989 "take-it-or-leave-it" offer because they are not prepared to cede the heritage of their children and children for a future on welfare that they could have in any case.

The 1990 Human Rights Committee decision does not say the Committee found the 1989 "take-it-or-leave-it offer "appropriate to rectify the threat to (Lubicon) 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". The UNHRC decision says "historical inequities...and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 for long as they continue".

However, taking at face value Canadian assurances that Canada was seeking a negotiated settlement with the Lubicons that would respect Lubicon rights -- as supposedly evidenced by a settlement offer that Canada did not tell the UNHRC had been tabled on a "take-it-or-leave-it" basis -- the Committee also found that Canada "proposes to rectify the situation with a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant".

Commenting on the relationship between finding Canada in violation of the Covenant so long as the situation continues, and the finding that Canada proposes to rectify the situation with a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant, a Committee official was quoted in the Canadian media as saying the Committee "is telling both sides to continue negotiating in good faith (underlining added)".

The interpretation of the 1990 decision that the Committee "is telling both sides to continue negotiating in good faith" is consistent with the Concluding Observations of the Eighty-Fifth Session of the UN Human Rights Committee in October of 2005 that reads as follows:

The Canadian submission says "the land at issue in the Lubicon Cree claim lies within the territory covered by Treaty 8". It says "The land rights of the Lubicon Lake Cree, therefore, are governed by Treaty 8". If this were true it would let Canada off the hook for transferring rights to land that Canada did not properly hold. However, as indicated earlier in this submission, indigenous land rights are neither determined nor extinguished simply by the geographic location of the Territory involved.

The Canadian submission says since Lubicon Territory is located "within the territory covered by Treaty 8...some aspects of the Lubicon Lake claim fall within the Specific Claims Policy". Again if this were true things would be simpler for Canada which has a policy box for Indian land not covered by Treaty, which Canada calls "Comprehensive Claims"; and a policy box for Indians who are party to treaty but haven’t received their reserve land entitlement under treaty or all of it, which Canada calls "Specific Claims"; but no policy box for Indians who are not a party to treaty, and are consequently not covered by treaty, but who live in an area where others are a party to treaty.

To preclude this very problem treaty commissioners tried to make sure that they got all the Indians in the area signed up. A second treaty party was consequently sent out in 1900 to sign up known indigenous societies that were not signed up in 1899.

In his December 11, 1900 report on negotiating adhesions in 1900 with indigenous societies that were missed when Treaty 8 was negotiated with others in 1899, the Treaty Commissioner, J. A. MacRae, says:

The January 3, 1901 Order In Council ratifying the adhesions to Treaty 8 negotiated in 1900 says:

As indicated earlier, all land negotiations between Canada and the Lubicons have been on a without prejudice basis with respect to the positions of the parties on the nature of Lubicon land rights. It is the position of the Lubicons that they retain unceded aboriginal land rights to their traditional Territory. It is the position of Canada that the Lubicons are somehow covered by Treaty 8 but will still have to sign an adhesion to Treaty 8 as part of any settlement of Lubicon land rights.

The Canadian submission says:

This imagery is of course consistent with the "deer in the field" myth Canada is seeking to create but in fact the Lubicons were no more "nomadic" than people who live in the suburbs, work downtown and have a summer cottage. In the fall the Lubicons would fan out throughout their vast Territory to traplines historically associated with their family where they would stay in permanent cabins they owned. In the spring they would return to open prairies around Lubicon lake to get away from the bugs, gather wild foods, care for little gardens, repair trapping equipment and where they would again live in permanent cabins they owned. In the fall they would return to their traplines and the regular, predictable cycle of Lubicon life would be repeated.

The Canadian submission says:

These comments are a total fabrication and Canada knows they are a total fabrication.

Prior to the influenza of 1918 a much larger Lubicon population lived in 39 known communities scattered around Lubicon Territory with 19 documented burial grounds. The existence of these communities can be documented back to 1850 in the records of missionaries and back to 1750 in genealogical records. The three main communities were at Lubicon Lake, Fish (Haig)Lake and Bison Lake. Canada knows all of this because of documentation produced for court cases and because of the joint genealogy study in which Canada participated.

The Lubicons did not "petition...for Reserve Land according to the terms of Treaty 8" in the 1930’s. They did not know the reserve land terms of Treaty 8 in the 1930’s.

Moreover the terms of Treaty 8 were never discussed with the Lubicons. Despite the provisions of the Royal Proclamation and the fact that adhesions were negotiated with others both before and after first contact with the Lubicons, government officials decided that negotiation of a treaty or an adhesion to treaty was not necessary and that the Lubicons could simply be added as a "band" of status Indians entitle to the benefits of Treaty 8 -- including establishment of a Lubicon reserve.

The Lubicons started trying to make contact with Canada in the 1930’s because they understood from intermediaries on the periphery of their Territory that white people were going to be coming into the bush and trying to make a living by hunting and trapping. They understood, again through intermediaries on the periphery, that the purpose of making treaty was to protect Indian lands -- an idea Indians got from Canadian government officials. Back the in bush, isolated, familiar only with their own culture, history and religious beliefs, they believed all they needed to do was let the white people know Lubicon Territory was their land and there would be no problem.

The history of Lubicon contact with Canada is documented in section 12 of this submission on first contact and in sections 13 through 16 on the promise to establish a Lubicon reserve. The documents quoted in these sections are all either government of Canada or government of Alberta documents. Canada is well aware of these documents. These documents give the lie to statements made to the Committee by Canada in this section of the Canadian submission.

The Canadian submission says:

This statement is untrue and Canada knows it is untrue.

Peter Lougheed was elected Conservative Premier of Alberta in 1971. One of the planks of his new government was "development" of northern Alberta.

As part of "developing" northern Alberta the provincial government started construction of an all weather road into Lubicon Territory from Peace River. Again concerned about an influx of outsiders into their Territory, the Lubicons made renewed efforts to contact the government about their land rights. Neither level of Canadian government would talk to the Lubicons deeming them to be merely "squatters on provincial Crown land".

The Lubicons contacted the Indian Association of Alberta, an Indian political organization, and asked for help. The Indian Association involved lawyers. Neither level of Canadian government would talk to the leaders of the Indian Association or Indian Association lawyers about Lubicon land rights.

Indian Association lawyers advised the Lubicons to file a caveat under provincial land registration putting resource companies on notice that title to Lubicon Territory was disputed. The provincial government refused to accept and file the caveat as provincial land registration legislation then provided.

In 1974 Indian Association lawyers went to court asking the court to order the provincial government to obey provincial law and file the caveat. The government of Canada, with constitutional fiduciary responsibility for Indians and Indian lands and the rights of a recognized band of status Indians involved, intervened on behalf of the province.

The province asked the court for a postponement of the hearing of the case pending the outcome of a similar case in the Northwest Territories called the Paulette case. The Paulette case went against the Indians in the Northwest Territories but the decision read that the court would have ruled for the Indians if the land registration legislation in the Northwest Territories read like the land registration legislation in the provinces of Alberta and Saskatchewan.

The Alberta government went back to court and asked the court for another postponement of the hearing of the case during which time the provincial government re-wrote the provincial land registration legislation, revised the sections of the legislation under which the Lubicons went to court, and made the effect of the re-written legislation retroactive before the time the Lubicons went to court. The court then dismissed the Lubicon action as no longer having any basis in law.

The all-weather road was completed into Lubicon Territory in 1979-80 with consequences of which the Committee is aware.

In 1980 the Lubicons undertook an aboriginal rights action in the federal court of which the Committee is aware.

In 1982 the Lubicons asked the provincial court for an interlocutory injunction freezing resource exploitation activity of which the Committee is aware.

In 1983 the World Council of Churches wrote Canadian Prime Minister Pierre Trudeau a letter of which the Committee is aware charging that "the Alberta government and dozens of multi-national oil companies have taken actions which could have genocidal consequences" for the Lubicons.

In 1984 the Lubicons filed the compliant with the UNHRC of which the Committee is aware.

Although there were discussions back and forth with Canada about all of this, primarily in a legal adversarial context, there were no serious discussions regarding negotiation of Lubicon land rights until Mr. Fulton was appointed by the Minister in the late fall of 1984.

Land is basically agreed but there is no reserve or anything else until all of the elements of settlement are agreed. To quote Chief Federal Negotiator Dr. Bradford W. Morse, "Nothing is agreed until everything is agreed".

As indicate earlier, reserve construction is agreed. It’s based on what’s available under normal government programs and services and has changed little from the 1989 "take-it-or-leave-it" offer. The differences in the numbers are largely due to inflation and accretions in what’s available under normal government programs and services.

Although the federal government represents reserve construction money as a "global offer" the essence of which is supposedly flexibility, the amount involved is in fact tied to federal government requirements and criteria such as so many students per classroom, average family size for number of houses, road construction specifications for different classes of roads and so on. In other words the money has to be used to build specified buildings and facilities consistent with specified requirements and criteria. The true purpose of the "global offer" is to limit federal financial exposure with a large-scale, complicated, multi-year construction project.

The Canadian submission says:

What’s being implied here is that it’s costing Canada more money to move the Lubicons from place to place. The implication is untrue. The "almost twice as much" calculation is fictional.

The Lubicons did gradually move from Lubicon Lake to Little Buffalo Lake in the 1950’s, a distance of about 8 kilometers, in order for their children to be able to go to a small, on-again off-again mission school. They do want to return to Lubicon Lake, which is where they’re from. Had their traditional hunting and trapping economy and way of life not been destroyed by multi-billion dollar resource exploitation activity without their consent and over their protest, they could have returned to Lubicon Lake at their pleasure on their own at no cost to Canada.

It is not true that it will cost almost twice as much to build a new community at Lubicon Lake than it would cost to upgrade the current community at Lubicon Lake. Moreover the numbers have never been calculated. To suggest otherwise is pure fabrication.

The homes in Little Buffalo are small, flimsy, crowded, poor quality, poorly insulated bungalows without indoor plumbing. Numbers were run on how much it would cost to provide them with running water and bring them up to minimum Canadian health and safety standards. It was determined that it would cost more to bring them up to minimum Canadian health and safety standards than it would cost to build new houses. Currently the proposal at the negotiating table is to use them for storage buildings at the expense of the owner. Everything else with the exception of a rudimentary gravel road system built by the province in Little Buffalo as part of their 2 acre land tenure program will have to be built one place or the other at basically the same cost.

The Canadian submission says:

This is the situation referred to earlier in section 26 of this submission involving exchanging earlier agreed reserve land with valuable gas reserves -- which the province wants to retain -- for the Little Buffalo land. If that happens some Elders have indicated that they would prefer to stay where they are rather than go to the effort of relocating. The cost of upgrades is a wash as between building new roads to connect the proposed new road system at Lubicon Lake to the provincial road system, or up-grading the existing road system in Little Buffalo Lake and using it to connect the proposed road system at Lubicon Lake to the provincial road system.

In the same way the Canadian submission deliberately confuses reserve construction costs with financial compensation, it deliberately confuses Lubicon economic development proposals on the table in writing for negotiation since 1984 with financial compensation.

Carefully researched and repeatedly vetted by Canadian officials, Lubicon economic development proposals are now basically agreed. They include things to try and replace the traditional Lubicon hunting and trapping economy based on wild plants and animals with a hopefully viable mixed economy based on agriculture and the fact that the Lubicons now live in the middle of massive resource exploitation activity that is still remote from sources of commercial goods and services.

Financial compensation is money to generate independent interest revenues to meet the civic needs of current and future Lubicon society -- a kind of tax base so to speak for a society that has effectively lost the national lands and resources upon which societies normally base taxes. Canada refuses to negotiate financial compensation despite the fact that it has been a separate, mutually agreed settlement item on the table for negotiation since 1984.

The Canadian submission suggests, falsely, that these Lubicon economic development proposals are based on "resource development within their Proposed Reserve (particularly oil and gas extraction) to advance their economic development and self-sufficiency." As is the case with so much of what’s said in the Canadian submission, this is untrue and Canada knows it’s untrue. Exploitation of on-reserve gas and oil resources is to the Lubicons a dicey proposition at best and one they intend to approach with great care so they don’t destroy the long term agricultural potential of reserve lands, required to support their people forever, for short term economic profit.

Lubicon economic development proposals, well known to Canada, include clearing reserve land for agricultural purposes; cultivation of grain and forage crops on cleared reserve land; development of a large-scale cow/calf cattle operation taking advantage of Lubicon familiarity and comfort with large animals; construction of a large animal veterinary clinic to provide for Lubicon animals and provide a career line for their young people; construction of a professional slaughterhouse to provide for their own needs and to provide meat products to sell to resource company camps scattered throughout Lubicon Territory; purchase of a refrigerator truck to deliver meat products to resource company camps scattered throughout Lubicon Territory; development of on-reserve gravel resources and purchase of a concrete batch plant to provide for their own construction needs and to produce gravel and concrete swamp weights and drilling pads for resource companies working throughout Lubicon Territory; development of a commercial wild rice crop in area lakes considered to have excellent potential for cultivating wild rice; development of a commercial berry crop for a rapidly expanding specialty market; construction of a general store, gas station and coin laundry to provide for their own needs, provide an outlet for their meat and agricultural products and to cater to resource company workers scattered throughout Lubicon Territory; and the construction of a 15 unit motel with a restaurant to provide for their own needs and to cater to the needs of resource company workers scattered throughout Lubicon Territory.

See section 21 of this submission on Canada’s refusal to negotiate recognition of the right of self-government as part of a settlement of Lubicon land rights; section 22 of this submission on instructions to Canada’s self-government negotiators on how to negotiate self-government agreements that are not legally binding on Canada; and section 34 of this submission on indigenous self-government in Canada.

The Canadian submission says:

This is deliberately tricky language and deserves close examination.

First it is not what federal negotiators at the negotiating table say about their mandate. Federal negotiators at the table say they have no mandate to negotiate either financial compensation or self-government as part of a settlement of Lubicon land rights.

Secondly Canada is carefully separating settlement of Lubicon land rights from Canada’s negotiated and agreed obligations to fund reserve construction. Federal negotiators argued at the table that the Lubicons would not want to jeopardize a constitutionalized land settlement agreement, which they characterize as forever, with some supposedly inconsequential dispute over whether Canada has met it’s negotiated and agreed obligations to fund reserve construction as part of that settlement agreement. The Lubicons reject this position on the part of Canada and maintain that Canada cannot expect to keep negotiated land rights and default on the terms of the agreement by which Canada obtains those land rights. The language currently agreed at the negotiating table, as part of the capital (reserve construction) agreement, is "The Parties acknowledge and agree that any failure to abide by a decision (of an agreed dispute resolution tribunal regarding default under the reserve construction agreement) shall constitute a breach of the Final Settlement Agreement".

Thirdly the "authority to negotiate...a (non-binding) framework agreement for (Lubicon) self-government" is not authority to negotiate recognition of self-government as a part of a settlement of Lubicon land rights. In this regard see section 21 of this submission on Canada’s refusal to negotiate recognition of the right of self-government as part of a settlement of Lubicon land rights.

Footnote 23 in the Canadian submission reads:

What this means, once one gets through all of the deliberate obfuscation, is that federal negotiators have no mandate to negotiate self-government as a part of settlement of Lubicon land rights but Canada is prepared "to enter into a (non-binding) Self-Government Framework Agreement pursuant to Canada’s Inherent Rights Policy" -- independent of Lubicon land settlement negotiations -- "or to include legally binding clauses in the Land Settlement Agreement, agreeing to enter into self-government negotiations after the successful ratification of the Land Claim Agreement".

The Canadian submission says:

First the use of the term "global offer" purposefully confuses agreed reserve construction and economic development costs with things that are not agreed such as financial compensation and self-government. The so-called "global offer" pertains only to reserve construction.

Secondly there are no "other First Nations that are parties to Treaty 8 and that have settled similar claims." The closest examples would be the government fabricated Woodland Cree Band and the previously unrecognized Loon River Band; both of which were represented in land settlement negotiations with Canada by government selected and paid lawyers; both of which signed settlement agreements drafted for them by the government; both of which joined or "adhered" to Treaty 8 only as part of their government prepared settlement agreements.

Thirdly it is a blatant misrepresentation to suggest negotiations broke down over "a difference in approach to self-government negotiations between the Government of Canada and the Lubicon Lake Cree (leading) to refusal by the negotiators for the Lubicon Lake Cree to continue any negotiations". Lubicon negotiators did not refuse to negotiate. Government negotiators tabled positions that they refused to negotiate saying that they had no mandate to negotiate them. All that would have been required for negotiations to continue, and all that is still required for negotiations to continue, is for government negotiators to return to the table with a mandate to negotiate long-standing and pre-agreed settlement items in good faith including financial compensation and recognition of the right of self-government as part of a settlement of Lubicon land rights.

The Canadian submission claims:

The Canadian submission then goes on to complain in footnote 24 that:

It is factually inaccurate to say "The government of Canada has made several attempts to resume negotiations". Rather Canada has largely ignored a number of written offers by Lubicon Chief Ominayak to return to the table and negotiate all outstanding settlement items in good faith occasionally reiterating Canada’s non-negotiable positions on financial compensation and self government.

The federal government’s entire effort to resume negotiations consisted of presenting the Lubicons with a non-binding draft "Memorandum of Intent" in November of 2005 providing that "the parties will pursue an agreement" that didn’t include key settlement items including economic development, financial compensation or self-government. Regarding the missing items the non-binding draft "Memorandum of Intent" says only "All other elements of the Lubicon Lake Land Claim Settlement Agreement would remain outstanding and eligible for future negotiation".

This draft "Memorandum of Intent" is the document the Canadian submission now characterizes as "an offer for partial settlement...subject to negotiation privilege". It is not an offer to settle of any kind. It is an offer to return to the table but only if the Lubicons accept in advance Canada’s position on key settlement issues. Notably it was made after two years of no negotiations to a society Canada knows is under great stress.

How this non-binding draft "Memorandum of Intent" comes to be covered by "negotiation privilege" is unknown. There was no discussion about it being a confidential document. There was no agreement that it would be held confidential. There was no agreement that negotiations would be kept confidential, although federal negotiators sought such an agreement. The only thing the Lubicons agreed with regard to confidentiality was not "to negotiate in the media" while negotiations were proceeding, which the Lubicons respected and federal negotiators did not.

The obvious reason the Lubicons feel compelled to release these documents to the Committee, and to others, is because Canada regularly misrepresents what’s going on. The purpose of releasing the documents is so people can read them and judge for themselves. The two examples raised by Canada in the Canadian submission are good cases in point.

In the Canadian submission Canada says it made "an offer of for partial settlement to the Lubicon Lake Cree at the end of 2005". That’s untrue as the document provided to CESCR in 2006 clearly shows.

Similarly the Canadian submission describes the "secret" Justice Department Guidelines to Canadian Self-Government Negotiators as a "privileged document" containing "privileged legal advice on the possible language to be included in final agreements".

In fact these Justice Department Guidelines are clearly instructions to federal self-government lawyers on how to negotiate self-government agreements that are not legally binding on the federal government. They expressly say so. Federal Lubicon land negotiators are known to have attended Justice Department workshops on these Guidelines. These Guidelines were literally used as a script by federal negotiators in 2003 pretending that language taken directly from the 1996 Guidelines had been drafted the night before in a Peace River motel.

The Lubicons submit that proposing language expressly designed by Justice Department lawyers in 1996 to not be legally binding on Canada, represented by federal Lubicon land negotiators in 2003 as having been drafted overnight in a Peace River motel, is a classic example of negotiating in bad faith. The Lubicons are pleased to make these secret Justice Department Guidelines available to the Committee and to others interested in reading them and judging the content and intent for themselves.

The Canadian submission reiterates the claim that the Committee found Canada’s 1989 "take-it-or-leave-it" offer to be an appropriate remedy to the plight of the Lubicon people. It says "The Lubicon Lake Cree have yet to accept the remedy that the Government of Canada proposed".

The Committee has information on the 1989 "take-it-or-leave-it" offer and will have to decide whether it considers Canada’s 1989 offer to be an appropriate remedy to the plight of the Lubicon people, and whether Canada’s characterization of the Committee’s 1990 decision is correct.

The Canadian submission claims Canada made serious efforts "throughout the 1990’s and into the present... to reach a negotiated settlement with the Lubicon Lake Cree...(culminating in)...an offer to the Lubicon Lake Cree in 2003 which was enhanced in every aspect over previous offers".

The history of those "serious efforts" is as follows:

In 1992 Canada tabled a re-packaged version of the 1989 offer, again based on normal government programs and services, claiming it was worth considerably more and releasing charts comparing 1992 figures to 1989 figures without taking the impact of inflation into account. When the impact of inflation was taken into account, the dollar amount of the 1992 offer, released by the Minister of Indian Affairs to the media at the Calgary Airport rather than presenting it directly to the Lubicons, was actually worth less.

In 1996 Canada tabled another re-packaged version of the 1989 offer, again based on normal government programs and services -- this time proposing to go back to federal Cabinet post agreement to seek a revised mandate to negotiate outstanding settlement items in good faith.

The last round of negotiations commenced in 1998 and broke in 2003. Those negotiations ended at the point discussed in this submission. Taking at face value the Canadian government claim that the 2003 offer is "enhanced in every respect over previous offers", people can judge for themselves the nature of Canadian settlement offers.

The Canadian submission states "The Lubicon Lake Cree leadership, and its negotiators, have always insisted on a full settlement of all aspects of their claim...and...are only willing to negotiate the self-government aspect of their claim on their terms..." "Consequently", the Canadian submission says, Lubicon leaders "have been unwilling 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".

These comments by Canada of course herald back to the argument Canada makes in the INTRODUCTION of the Canadian submission that "The issue of self-government does not fall within the scope of article 27 of the Covenant", nor, according to the Canadian submission, "was it an aspect of the 1990 decision of the Human Rights Committee". These comments by Canada have already been addressed to some extent in section 23 of this submission but additional comments need be made.

It should be very clear that the Lubicons are prepared to negotiate recognition of the right of self-government as a part of a settlement of Lubicon land rights. All Canada has to do is agree to negotiate recognition of the Lubicon right of self-government in good faith as part of a settlement of Lubicon land rights.

Canada is in fact refusing to negotiate recognition of the right of self-government as part of a settlement of Lubicon land rights and is insisting that the Lubicons cede rights to their valuable traditional lands and resources, in effect legitimizing illicit expropriation of those lands and resources, before Canada will be prepared to talk with the Lubicons about Lubicon self-government.

The Lubicons do not see their right of self-government to be something they must obtain from Canada through negotiations post settlement of their land rights, and doubt it will be possible to negotiate recognition of their right of self-government under Canada’s purposefully convoluted "Inherent Right Policy" once they cede rights to their land.

In the Canadian submission Canada is offering to build the Lubicons a new subsistence community on 247 square kilometers of Lubicon Territory and to appropriate the remaining 9,753 square kilometers with associated resources. With regard to the related issues of self-government and self-determination, Canada is telling the Lubicons to forget it and the UNHRC to mind its own business.

Even if Canada could be trusted to deliver on what it says it’s offering, which is hardly assured given the history of the struggle of the Lubicon people, the Lubicons have made clear that they are not prepared to cede their right as a people to manage their own affairs in exchange for a new subsistence community on 247 square kilometers of their own land. As indicated earlier, they are prepared to negotiate post settlement how implementation of their jurisdiction can be implemented in a way that is compatible and not in conflict with the exercise of jurisdiction by other governments in Canada -- as other Governments in Canada do all the time. However they are not prepared to cede their rights to their Territory without recognition that the Lubicon people as a distinct people have the inherent aboriginal right of self-government.

The Canadian submission says:

None of these statements are true.

In fact the Lubicons have repeatedly proposed in writing to return to negotiate all outstanding settlement issues including financial compensation and self-government as a part of a settlement of Lubicon land rights. When Canada has bothered to respond to the Lubicons at all it has simply reiterated its refusal -- and continues to reiterate its refusal in its current "follow-up" submission to the Committee -- to negotiate financial compensation and self-government as a part of a settlement of Lubicon land rights.

The 2005 so-called "offer from the Government of Canada for a partial settlement" wasn’t an offer of any kind of settlement but a non-binding draft "Memorandum of Intent" offering to return to the table "to pursue an agreement" that didn’t include economic development, financial compensation or self-government. A copy of Canada’s non-binding draft "Memorandum of Intent" was attached, much to Canada’s chagrin, to the May 1, 2006 submission to the 36^th Session of the UN Committee on Economic, Social and Cultural Rights on the Occasion of the review of Canada’s 4^th and 5^th Periodic Reports. People can read it and judge for themselves whether it’s an offer of a "partial settlement".

Canada’s claim that the 2005 so-called offer of a partial settlement "was without prejudice to the remaining, unresolved aspects of the claim" -- is vacuous in light of Canada’s stated refusal to negotiate those items.

The Canadian submission repeats that "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". In Canada’s submission, those "aspects" do not include key settlement issues pre-agreed for negotiation including financial compensation and self-government as part of a settlement of Lubicon land rights.

No settlement of Lubicon will be possible unless Canada is prepared to negotiate all outstanding settlement issues in good faith including financial compensation and recognition of the Lubicon right of self-government as part of a settlement of Lubicon land rights. The Committee must therefore clarify its position on the 1989 "take-it-or-leave-it" offer -- upon which Canada’s position relies -- for there to be a remedy for the continuing violation of the civil and political rights of the Lubicon people under the Covenant.

Finally the government of Canada submission says "The Government of Canada is committed to a resolution of the Lubicon Lake Cree claim...and...is willing to return to the negotiating table to resume negotiations at any time should the Lubicon Lake Cree be willing to return to the negotiating table.

The Lubicons are prepared to return to the negotiating table whenever Canada is prepared to resume negotiation of all outstanding settlement issues in good faith including financial compensation and recognition of the Lubicon right of self-government as part of a settlement of Lubicon land rights.