Lubicon Chief underscores the nature of the problem with TCPL

Friends of the Lubicon
PO Box 444 Stn D,
Etobicoke ON M9A 4X4
Tel: (416) 763-7500
Email: fol (at) tao (dot) ca
www.lubicon.ca

April 26, 2008

Officials of TransCanada contacted the Lubicons a couple of days before the April 10th Prehearing Meeting of the Alberta Utilities Commission and asked for a meeting. The meeting was billed as an effort to negotiate an agreement with the Lubicons regarding recognition of Lubicon land rights but it may have been rather only an effort to create the illusion of a supposedly "good faith" effort on the part of TransCanada to reach an accommodation with the Lubicons for legal, political and/or PR purposes. There have since been a number of illuminating exchanges back and forth.

Included below for your information is a copy of a letter from Lubicon Chief Ominayak to the Senior Aboriginal Advisor for TransCanada Arthur Cunningham. The Chief's letter is a response to an earlier letter from Mr. Cunningham. The contents of the earlier exchange of letters are covered in the body of the attached letter.

The attached letter details the exchanges between TransCanada and the Lubicons and underscores the nature of the problem.


Lubicon Lake Indian Nation
P.O. Box 6731
Peace River, AB T8S 1S5
Phone: 403-629-3945
Fax: 403-629-3939

April 22, 2008

Arthur Cunningham
Senior Aboriginal Policy Advisor
TransCanada Pipelines Ltd.

Dear Mr. Cunningham:

Re: Your letter of April 21, 2008

I don’t know why TransCanada is surprised by my letter of April 17, 2008 responding to the last version of your April 15th letter. The basic Lubicon position on the issues has not changed since our first discussions with TransCanada a year ago last March.

You say you’re surprised by the Lubicon response to the last version of your April 15th letter "considering our most recent discussions". You don’t spell out the substance of those "most recent discussions" but they should have left no confusion on your part. The substance of those "most recent discussions" is as follows:

On April 8, 2008 you phoned and asked for a meeting saying "I come with a TransCanada position around recognition of the traditional territory". You said "TransCanada has no problem recognizing that the Lubicons assert unceded land rights".

You were told that the Lubicons require recognition and respect for Lubicon land rights, not merely recognition that the Lubicons assert unceded land rights. You were told that it is a matter of fact that the Lubicons did not sign Treaty 8 ceding Lubicon rights to Lubicon Territory. Moreover, you were told, the Lubicon people have not subsequently ceded Lubicon rights to Lubicon Territory to anybody through treaty or in any other historically or legally recognized way.

You told us "TransCanada cannot give the Lubicons land rights".

You were told that the Lubicon people are not asking TransCanada to give the Lubicons land rights. If TransCanada wishes to build a pipeline across unceded Lubicon land, you were told, TransCanada will be required by the Lubicon people to recognize that the Lubicons have rights over unceded Lubicon Territory, and to show respect for Lubicon land rights by agreeing not to proceed with an application to the province until you have answered Lubicon questions regarding pipeline construction and operation, addressed Lubicon environmental and other concerns, and offered the Lubicon people economic opportunities related to pipeline construction.

You told us TransCanada has "four language phrases" regarding recognition of Lubicon land rights that TransCanada "can live with". Those "four language phrases", you said, are:

"1.) TransCanada acknowledges and recognizes that part of the right-of-way for the North Central Corridor Pipeline Project falls within land the Lubicons consider unceded.

"2.) TransCanada acknowledges and recognizes that part of the right-of-way for the North Central Corridor Pipeline Project falls within asserted unceded Lubicon land.

"3.) TransCanada acknowledges and recognizes that part of the right-of-way for the North Central Corridor Pipeline falls within land claimed by the Lubicon Nation as unceded territory subject to a jurisdictional dispute with the federal and provincial governments.

"4.) TransCanada acknowledges and recognizes that part of the right-of-way for the North Central Corridor Pipeline falls within land that the Lubicon Nation claims as traditional territory."

You were told that the Lubicons will not accept the term "right-of-way" because it suggests an existing legal right. You were also told that the Lubicons will not accept the qualifiers "asserted", "claimed" or "considers". We suggested the simple, factual sentence "TransCanada acknowledges and recognizes that part of the proposed route for the North Central Corridor Pipeline falls within unceded Lubicon Territory".

You told us "TransCanada needs to be cautious because Alberta is not the only place where we’re dealing with unceded Territory". You said "We can’t take a position before settlement".

You were told that the Lubicons do not require TransCanada to take a position before settlement. What the Lubicons do require, you were told, is that TransCanada either remain neutral in an acknowledged jurisdictional dispute or stay out of the area until the question of land rights has been settled. Refusing to recognize that the Lubicons have unceded land rights while recognizing the right of the province to regulate activity in unceded Lubicon Territory, you were told, is tantamount to siding with the province in the jurisdictional dispute and supporting provincial assertion of jurisdiction over unceded Lubicon land.

You said "TransCanada is also prepared to put in a clause saying that it is the position of TransCanada to encourage all parties to negotiate a settlement of Lubicon land rights".

You were told that TransCanada should consider saying that TransCanada acknowledges and recognizes that the Lubicon Lake Indian Nation has unsettled land rights over part of the proposed route for the North Central Corridor Pipeline Project. You were told TransCanada might then want to consider a couple of sentences indicating that the issue of Lubicon land rights has been the subject of negotiation between the Lubicon Lake Indian Nation and both levels of Canadian government for many years and that TransCanada encourages all parties to return to the table to negotiate a settlement of Lubicon land rights that defines mutually acceptable jurisdictional rights and responsibilities. Pending settlement of Lubicon land rights, you were told, TransCanada will be required by the Lubicon people to meet Lubicon regulatory requirements prior to proceeding with TransCanada’s application to a provincial regulatory agency. Such an approach, you were told, would set out the factual situation and allow the parties to proceed without TransCanada taking sides or setting a precedent for anywhere else.

On April 9th it was agreed to meet in Little Buffalo Lake on April 10th to discuss these issues further. Assuming agreement could be reached on the prior question of recognition of Lubicon land rights -- and with an eye on a "Prehearing Meeting" of the Alberta Utilities Commission (AUC) regarding TransCanada’s provincial application scheduled for the following week -- you were specifically asked if you would involve everyone in the April 10th meeting required to deal with all of the involved issues including environmental concerns and contracting opportunities. You were told that the objective of the meeting should be to deal with all of the outstanding issues prior to the scheduled "Prehearing Meeting" of the AUC. You said "Yes, that’s my job -- to reach agreement on all of the issues necessary to go forward".

During the meeting on the 10th you again tabled the same "four language phrases" you put forward during the discussion on April 8th. "If we can agree on one of them", you said, "we can proceed". You said you considered these so-called "four language phrases" "respectful".

I told you that the Lubicon people have repeatedly explained our situation to TransCanada. I told you we are not prepared to enter into consultations on other things until we reach agreement on recognition that the Lubicons have land rights.

I told you that the Lubicon people do not just claim land rights. I told you that the Lubicon people have land rights that we have never ceded to anybody through treaty or in any other historically or legally recognized way. I pointed out to you that the Lubicon people have been in on-again off-again negotiation of recognized Lubicon land rights with both levels of Canadian government since at least 1985.

I told you that the Lubicon people have lots of questions about construction of the pipeline including whether it will just be a straight through pipeline or if it will involve construction of lots of lateral pipelines connecting it to a growing network of gas wells in Lubicon Territory. However, I told you, before we discuss how much disruption the proposed pipeline is going cause in Lubicon Territory, we have to agree that the Lubicon people have land rights that will be respected by TransCanada agreeing not to proceed with TransCanada’s application to the province until Lubicon concerns have been addressed.

You told me "The issue to us is who owns the land".

I told you that the process for Canada to obtain rights to Indian land is through negotiation of a treaty with the original aboriginal owners. I told you that the Lubicons are the original aboriginal owners of Lubicon Territory and no treaty has ever been negotiated with us. If TransCanada wants to operate in Lubicon Territory, I told you, TransCanada is going to have to recognize that the Lubicon people have land rights.

You said "If the land I claim is mine; the people and the law of the country say is not mine; I couldn’t prevent you from coming on it". You said "TransCanada is governed by the laws of the land".

You were told that the laws of the land provide that the land belongs to the original aboriginal owners until it is ceded by treaty. Until there is a settlement of Lubicon land rights, you were told, the Lubicon people do not recognize provincial authority to approve construction of the TransCanada pipeline across Lubicon land without Lubicon consent.

You were told that the Lubicon people have tried to come up with an approach that would allow TransCanada to proceed in Lubicon Territory prior to settlement of Lubicon land rights in a way that would both respect Lubicon land rights and allow TransCanada to meet provincial regulatory requirements. However, you were told, TransCanada has failed to take advantage of that opportunity.

You said "Our people need to understand that". You said "Our experience elsewhere is that there are a lot of implications to land rights". You said "Our people need to get over that risk from a business standpoint".

You were told that TransCanada can eliminate the business risk by either staying out of the disputed area or by meeting the requirements of both parties to the jurisdictional dispute.

You were asked if TransCanada intends to proceed whether the Lubicons object or not.

You said "Yes".

I told you that I didn’t know how else to explain the Lubicon position to you. I suggested that you discuss possible wording with our advisor Fred Lennarson to see what can be worked out. I said you could talk back and forth with your lawyers in Calgary by phone to see what could be worked out.

I told you that the Lubicon people are looking for a simple agreement that recognizes and respects Lubicon land rights. If the government returns to the negotiating table and negotiates a settlement of Lubicon land rights that defines mutually acceptable jurisdictional rights and responsibilities, I said, that will change everything and we will not have to go through this difficult process every time somebody wants to proceed in the Lubicon area.

However, I told you, you are a very foolish man if you think TransCanada is going to proceed with construction of a major pipeline through unceded Lubicon Territory without Lubicon consent. I told you the Lubicon people are not going to accept being threatened by anybody.

After some internal discussions, Fred Lennarson tabled the following proposed wording for you to discuss with your colleagues at TransCanada:

"TransCanada acknowledges and recognizes that the Lubicon Lake Indian Nation has never signed treaty with the Government of Canada ceding Lubicon rights to the Territory identified in the attached map.

"TransCanada acknowledges and recognizes that the Lubicon Lake Indian Nation consequently has unsettled aboriginal land rights over part of the route for the proposed North Central Corridor Pipeline Project.

"TransCanada acknowledges and recognizes that there is an on-going dispute between the Lubicon Lake Indian Nation and the Government of Alberta over who exercises rightful regulatory authority over the Territory identified in the attached map.

"TransCanada acknowledges and recognizes that settlement of Lubicon land rights has been the subject of negotiation between the Lubicon Lake Indian Nation and both levels of Canadian government for many years and encourages the Governments of Canada and Alberta to return to the table and to expeditiously negotiate a settlement of Lubicon land rights with the Lubicon Lake Indian Nation resolving the dispute over rightful regulatory authority in the Territory identified in the attached map.

"Pending settlement of Lubicon land rights, TransCanada is prepared to meet Lubicon regulatory requirements prior to proceeding with TransCanada’s application to the Alberta Utilities Commission."

You told us that your colleagues would be concerned about the phrase "Lubicon regulatory requirements" because they won’t know what’s involved.

We told you that the proposed clauses are only the whereas clauses in a proposed agreement between TransCanada and the Lubicons. We told you the regulatory requirements would be spelled out in the body of the agreement which, again with an eye on the Prehearing Meeting of the provincial regulatory agency scheduled for the following week, we told you we were prepared to sit down and negotiate with you right then. We told you that TransCanada would then know specifically what’s involved in meeting Lubicon regulatory requirements and in any case there will be no Lubicon agreement not to oppose the provincial application unless there is agreement on all of the involved issues.

You indicated that you were not concerned about the upcoming Prehearing Meeting of the provincial regulatory agency and would have to go to Calgary to discuss proposed Lubicon language with TransCanada lawyers and officials face-to-face. You also said, contrary to what you’d said on April 9th when the April 10th meeting was agreed, that you would need to involve others in discussion of such things as Lubicon environmental concerns and contracting opportunities.

You phoned Fred Lennarson the morning of April 11th and asked if we could say "land rights" instead of "aboriginal land rights" in the second clause of Lubicon proposals. You said "People are uncomfortable with the word ‘aboriginal’ because they don’t know what the implications are". You said "They’re worried about setting a precedent". You said "Everything else is OK".

Fred Lennarson checked with us and we agreed to say "land rights" instead of "aboriginal land rights". When Fred Lennarson phoned you back to agree to your proposed wording, however, you said "No, the problem is not with the word ‘aboriginal’". You said "The problem is with the word ‘land’". You said "Our people would rather just say ‘aboriginal rights’".

Fred Lennarson checked with us again and then phoned you back to tell you that we would not agree to leave out the word "land" in "land rights".

You told Fred Lennarson "I thought you’d have a problem with that". "OK", you said, "let’s go back to the original Lubicon wording ‘unsettled aboriginal land rights".

A short while later you phoned Fred Lennarson again and said "People would also like to end the second paragraph with ‘aboriginal land rights’ and drop ‘over part of the route for the proposed North Central Corridor Pipeline Project". You said "They don’t think it’s necessary because the map provided by the Lubicons will be attached".

Fred Lennarson pointed out to you that the TransCanada had originally proposed the language it was now proposing to take out. He told you the Lubicons had only changed the term "right-of-way" to "route" because the term "right-of-way" suggested an existing legal right.

You told Fred Lennarson "I know the language originally came from us but people now think it’s unnecessary".

After consulting with us Fred Lennarson phoned you back and agreed to drop the last part of the second clause reading "over part of the route for the proposed North Central Corridor Pipeline Project". However, Fred Lennarson told you, the Lubicons are not prepared to keep endlessly going back and forth over such things as putting in and taking out and putting back in the same phrase.

You assured Fred Lennarson "Everything else is fine and I hope to keep my commitment to have you a letter by the end of the day".

At 3:45 that afternoon I received a faxed letter from you agreeing on the first four proposed Lubicon clauses but not mentioning the fifth clause -- the one pertaining to TransCanada’s agreement to meet Lubicon regulatory requirements prior to proceeding with TransCanada’s application to the provincial regulatory agency. On my instructions Fred Lennarson immediately sent you the following email:

"What happened to the last or fifth paragraph of the agreed wording regarding TransCanada not proceeding with the AUC application until Lubicon regulatory requirements have been met?

"There was no discussion of this fifth paragraph in our phone conversations yesterday and in fact you started those discussions yesterday by stating that TransCanada’s only concern was with language in the second paragraph and that ‘Everything else is OK’. While we continued to discuss the language in that second paragraph back and forth yesterday until we reached agreement, there was no discussion at any point yesterday about the last or fifth paragraph.

"We both know, as do the Lubicons from our discussions in Little Buffalo on the 10th, the provision made in the fifth paragraph of the agreed wording is essential to agreement on respect for Lubicon land rights and that language on recognition is not in and of itself sufficient for the Lubicons to agree not to oppose TransCanada’s application to the AUC. It is only the first step that allows for discussion of other important issues.

"Hopefully for your personal credibility, and TransCanada’s relationship with the Lubicons, omission of the last or fifth paragraph was only an unfortunate, inadvertent error rather than a cynical, deliberate and calculated act. If it is a deliberate act it would represent the essence of something we both repeatedly decried in our discussions yesterday.

"Needless to say there is no agreement on anything unless and until this matter is resolved".

On April 12th Fred Lennarson received the following email from you:

"Fred it was not included because in our discussion in Little Buffalo was that we that couldn’t accept the fifth paragraph until we could clearly understand regulatory requirementm Meant and the discussion then focused we could determine that later in farther discussions to determine committments. I confirmed my understanding with Armand and he had the same understanding. In our discussions I did clarify on two occasions we were focused on just the four paragraphs. Our positions still stands that we cannot state the fifth paragraph until we have a clear understanding what are the meanings. For further discussion could you call me on my cell at 403-4616865. For I am working on my Blackberry." (Punctuation, spelling, typographical and grammatical errors in the original)

On instructions Fred Lennarson immediately responded to your April 12th email as follows:

The first four general provisions of a possible agreement have no force or effect without agreement on the fifth provision. All the first four provisions say is that the Lubicons didn’t sign treaty and consequently have unsettled land rights. Those things are not in serious dispute in any case.

The Lubicon position from the beginning is that companies wishing to proceed in unceded Lubicon Territory must recognize Lubicon land rights and deal with Lubicon concerns prior to making application to proceed under provincial authority. Just making a couple of statements of fact is not sufficient for the Lubicons to agree not to oppose an application to proceed under provincial jurisdiction. That we haven’t been able to do better than that in a meeting in Little Buffalo Lake on the 10th and a number of phone conversations between you and me on the 11th is a shame.

In the discussion in Little Buffalo on the 10th you indicated that your people would have concerns about the reference to "Lubicon regulatory requirements" because, you said, they wouldn’t know what’s involved. We told you what’s involved would be specified in the body of the agreement without which there will be no Lubicon agreement not to oppose a TransCanada application to proceed to the AUC.

"Going into the meeting on the 10th I specifically asked you if you would be bringing everybody to that meeting that you would need to make an agreement in all aspects including both recognition of Lubicon land rights and all of the other involved issues including environmental concerns and contracting. You told me "Yes, that’s my job -- to reach agreement on all of the involved issues necessary to go forward including contracting".

During the meeting on the 10th, and facing the AUC Prehearing Meeting on Monday, I specifically asked you if you were prepared to stay up north until an agreement is made. You indicated that you had to go to Calgary to deal with TransCanada lawyers and officials face-to-face and that you would need to involve others in discussion of such things as Lubicon environmental concerns and contracting opportunities.

The Lubicons have no problem with you dealing face-to-face with TransCanada officials in Calgary, or involving other TransCanada officials in the discussion, but they made clear that there will be no Lubicon agreement not to oppose an application to the province until TransCanada recognizes Lubicon land rights and deals with Lubicon concerns. Specifically there was no agreement, either in Little Buffalo or on the phone yesterday, to drop the clause providing that TransCanada would not proceed with the Lubicon application until there had been an agreement made with the Lubicons not to oppose an application to the province.

I was in fact prepared to discuss alternative wording to the phrase Lubicon regulatory requirements" with you when you phoned yesterday. You pre-empted that discussion by stating at the offset that ‘Everything is OK’ but certain language in the second clause.

I have reviewed my notes on our phone conversations yesterday and have no recall of any discussion about focusing just on the first four provisions. I do not believe there were any such discussions at least between you and me. Had there been I would have seized the opportunity to talk about possible alternative wording.

"I certainly did not agree at any point to focus on the first four provisions and to set the fifth provision aside until later in the context of a separate MOU. In this regard I would remind you that I pointed out to you the clause (1.3) in the ‘Purposes’ section of TransCanada’s draft MOU that the Lubicons were proposing to replace with the draft Lubicon wording. It's all in the context of an overall agreement with the Lubicons on the terms they require to not oppose an application to the province.

There is no problem with TransCanada taking time to negotiate Lubicon agreement not to oppose an application to the province as long as TransCanada does not proceed with the application to the province but we both know, as do the Lubicons, that TransCanada intends to proceed with the AUC application on Monday. There is a big problem with that.

Putting TransCanada’s application to the province on hold may be complicated at this stage but this situation has been caused by TransCanada applying to the province without first obtaining Lubicon agreement not to oppose and then publicly lying about it. It has now been further complicated by TransCanada’s not dealing with this matter sooner and failing to take advantage of the meeting in Little Buffalo on the 10th to reach agreement with the Lubicons on all outstanding issues. Other companies do just that all the time in a few hour meeting with the Lubicons. Agree to recognize Lubicon land rights and to obtain Lubicon agreement not to oppose an application to the province before making an application to the province; answer Lubicon questions about the project; deal with Lubicon environmental and other concerns; agree on Lubicon contracting opportunities. TransCanada has made this far more complicated than it need be.

Lastly the reason I have not phoned you about the email you sent me this morning is I have been fully occupied all day dealing with other things. It is not because I am refusing to talk with you. In the meantime I have received a couple of calls from Armand telling me that you are meeting with Kendel tonight and that I will be hearing from you tomorrow. So I’ll now wait to hear from you tomorrow."

You phoned Fred Lennarson the morning of April 13th and said "We feel we don’t have the power to stop the hearing tomorrow so I just want to ask if it would be possible for us to pursue a parallel process"

"By parallel process", Fred Lennarson said, "I presume you’re talking about proceeding with the AUC application while negotiating with the Lubicons".

You told Fred Lennarson "That’s right".

Fred Lennarson said he’d check with us but that he doubted we’d be prepared to talk with TransCanada about recognition of our land rights and concerns while TransCanada was proceeding with an application to the province that is a basic denial that we have land rights.

You told Fred Lennarson "I didn’t think so". You asked "What’s the alternative when we can’t stop the hearing and we can’t negotiate an agreement before then?"

Fred Lennarson told you that TransCanada should have thought of that before applying to the province without first obtaining Lubicon agreement not to oppose that application; and then publicly lying about there being no objections to the application; and then not dealing with the resulting problems in the intervening 5 month period before the scheduled AUC Prehearing Meeting; and then not taking advantage of the opportunity afforded by the Lubicons last week to negotiate an agreement not to oppose.

You asked Fred Lennarson "What about sitting down with the AUC after the hearing tomorrow and asking them to put things on hold until we come to agreement with the Lubicons". He said "We could come up with people who can deal with all of the issues as early as Tuesday".

Fred Lennarson told you that your proposal is tantamount to proceeding in parallel since nothing is going to happen after the Prehearing Meeting tomorrow anyway until the AUC makes decisions on process and status. He told you that will take at least a couple of weeks. However, Fred Lennarson told you -- if the Lubicons agree -- your proposal to ask the AUC to put everything on hold until TransCanada makes an agreement not to oppose might provide a window of opportunity for TransCanada to negotiate an agreement with the Lubicons before the hearing on the application proceeds without TransCanada having to withdraw the application.

You asked Fred Lennarson "Do we still have to spell out paragraph 5?"

Fred Lennarson told you that paragraph 5 is basic to the Lubicon position and that he was sure the Lubicons would insist on it as part of any agreement with TransCanada even if subsequent agreement with TransCanada meets the requirement provided by paragraph 5. Fred Lennarson pointed out that the requirement provided in paragraph 5 would also pertain to anything else TransCanada proposes to do in unceded Lubicon Territory.

You asked Fred Lennarson "On clause 5, can we talk about wording?"

Fred Lennarson told you he had a mandate from us to discuss the wording of clause 5 all along but that you’d pre-empted that discussion by telling him "Everything else is OK".

You asked Fred Lennarson "What are your suggestions?"

Fred Lennarson told you that we’re prepared to change the language in clause 5 from "TransCanada is prepared to meet Lubicon regulatory requirements prior to proceeding with TransCanada’s application to the AUC" to "TransCanada will obtain Lubicon agreement not to oppose an application to the AUC prior to proceeding with TransCanada’s application to the AUC". Fred Lennarson said "That should make very clear what’s being agreed".

You told Fred Lennarson "That language is acceptable.

After consulting with us Fred Lennarson phoned you and told you that we would be prepared to schedule negotiations with TransCanada on an agreement not to oppose after TransCanada put its application to the AUC on hold. You told Fred Lennarson "That’s fine". You said "That should be no later than Tuesday". You said "That’s what we’ll work towards".

You told Fred Lennarson "We will send a letter confirming that we’ve asked the AUC to put the application on hold until we negotiate an agreement with the Lubicons".

Fred Lennarson told you "The Lubicons will require such a letter before agreeing to schedule negotiations".

During the Prehearing Meeting on April 14th Fred Lennarson was approached by your colleague Eric Mohun. "About your proposal to put the application on hold", Eric Mohun asked Fred Lennarson, "what do you think about amending the (provincial) application to say that TransCanada has not yet completed our consultations with the Lubicons?"

Fred Lennarson told Eric Mohun that the proposal to request the AUC to put TransCanada’s application on hold while TransCanada negotiated an agreement with the Lubicons had been made by TransCanada -- not by the Lubicons. The Lubicon proposal, Fred Lennarson told Eric Mohun, was that TransCanada agree not to proceed with the application until agreement had been reached with the Lubicons that the Lubicons would not oppose the application.

Secondly, Fred Lennarson told Eric Mohun, amending the application is just another way of proceeding with the application while TransCanada talks with the Lubicons -- in effect just another way of proceeding in parallel. Fred Lennarson told Eric Mohun correctly that the Lubicons will likely see such a proposal as just yet another effort at slick dealing by TransCanada.

Eric Mohun asked Fred Lennarson "Are you looking for a letter saying that the application is ‘officially’ being put on hold?"

Fred Lennarson told Eric Mohun that TransCanada should use whatever language it pleases but he cautioned Eric Mohun that the Lubicons will be looking closely at the language used and would predictably react negatively if they conclude that TransCanada is again playing games. If TransCanada wants to make an agreement with the Lubicons not to oppose the provincial application, Fred Lennarson told Eric Mohun, TransCanada should write a simple, unambiguous letter saying simply that TransCanada will not be proceeding with the provincial application until the Lubicons agree not to oppose it.

Eric Mohun asked Fred Lennarson "What will be involved in talks on Tuesday or Wednesday?"

Fred Lennarson told Eric Mohun that the Lubicons will want to see the letter putting the application on hold before scheduling negotiations but, assuming that TransCanada plays no further games with the issue of recognition, remaining agenda items would include questions about pipeline construction and operation, safety concerns, environmental concerns and contracting opportunities and arrangements. Unless TransCanada insists on doing something like building the pipeline through a burial ground, Fred Lennarson said, these items should not pose an insurmountable problem.

Eric Mohun said "Of course -- we do it all the time".

Fred Lennarson told Eric Mohun the Lubicons also do it all the time and that it should therefore be possible to deal with the remaining issues in a matter of hours assuming TransCanada plays no further games with the issue of recognition.

Lubicon representatives left the AUC Prehearing Meeting about noon. You phoned Fred Lennarson at 4:10 that same afternoon and said "I want to update you on the process".

You told Fred Lennarson "We’re prepared to go with the 5th paragraph for sure not to oppose". "On the hearing", you said, "we need some confidence that if we make a formal statement for 72 hours to make an agreement".

Fred Lennarson told you that he didn’t understand what you were saying.

You told Fred Lennarson "We’re talking about making a request at the end of the hearing to defer any decisions of the Prehearing Meeting process for 72 hours for TransCanada and the Lubicons to meet and reach agreement on non-objection".

Fred Lennarson asked you what decisions you were talking about. He pointed out that the AUC won’t be making any decisions regarding process and status until at least the end of the following week and won’t begin hearing submissions on the application until after that.

You told Fred Lennarson "It’s all part of the same process". You said "We’re prepared to agree to do all five paragraphs". You said "We’re prepared to make a formal statement that we won’t proceed until we’ve talked to the Lubicons".

Fred Lennarson told you "That’s not what the 5th clause says". Fred Lennarson pointed out that the 5th clause says "Pending settlement of Lubicon land rights, TransCanada is prepared to meet Lubicon regulatory requirements (or alternatively obtain Lubicon agreement not to oppose) prior to proceeding with TransCanada’s application to the AUC".

Fred Lennarson pointed out that there’s a big difference between agreeing not to proceed for 72 hours while TransCanada talks to the Lubicons -- especially when nothing would be happening with the application in the next 72 hours anyway -- and agreeing not to proceed with the application until TransCanada obtains Lubicon agreement not to oppose.

Fred Lennarson told you he doubted an offer to make a request to defer decisions for 72 hours that aren’t going to be made in that time frame anyway, while TransCanada talks to the Lubicons -- after which TransCanada will proceed with the application in any case -- will bring the Lubicons back to the table to discuss anything.

Fred Lennarson reminded you of the firm Lubicon position that TransCanada has to obtain Lubicon agreement not to oppose before the Lubicons will be prepared to discuss anything else.

You told Fred Lennarson "We agree not to proceed until the Lubicons have agreed not to oppose".

It was then 4:20 pm on April 14th. Fred Lennarson told you that he’d consult with the Lubicons but that he doubted it would be logistically possible for TransCanada to make a public statement at the end of a Prehearing Meeting that had likely already ended.

After trying unsuccessfully to reach us Fred Lennarson phoned you back and suggested that TransCanada just send the letter discussed earlier agreeing to the five paragraphs, recognizing that the Lubicons have land rights, agreeing not to proceed with the provincial application until the Lubicons have agreed not to oppose it, and asking to commence negotiations on agreement not to oppose.

You asked Fred Lennarson "Do you think that would be sufficient?"

Fred Lennarson told you such a letter would be consistent with the position the Lubicon people have been taking all along.

You asked Fred Lennarson when he would be getting back to you. He told you he’d get back to you as soon as he was able to reach us.

Fred Lennarson reached me at 10:30 the following morning. I told him to ask you to send the suggested letter and that I’d convene a meeting of Council to review it.

Fred Lennarson immediately phoned you. You were away from your desk. He left you a message asking that you fax me a copy of the proposed letter and send him a copy by fax and email.

At 4:05 pm on April 15th Fred Lennarson received a phone message from you indicating that the proposed letter had been sent by phone and fax. Fred Lennarson received the phone message at 4:50 and phoned you to advise that he was away from his desk and therefore couldn’t check fax messages but that he had not received an email copy of the letter.

You told Fred Lennarson that you were just about to call him -- that you’d sent "the wrong letter". You told Fred Lennarson "I’m re-faxing it now".

You told Fred Lennarson "I’m sending an updated, official letter". You said "The letter I sent first was without the 5th clause". You said "This one has the 5th clause"

Fred Lennarson returned to his office the following day and checked his faxes. He had received one at 3:38 pm the previous day and another at 4:56 pm. Both letters were slightly revised versions of your April 11th letter re-dated April 15th. Both started out thanking me for "meeting with me yesterday". The meeting referred to occurred on April 10th.

The first of the two faxed letters was the same as the April 11th letter and did not include the 5th paragraph. The second of the faxed letters was covered by a note that read:

"Please disregard letter sent via fax earlier today. Enclosed letter is our updated letter."

The second of the two letters included a significantly altered 5th clause that read:

"Pending resolution of the Lubicon land rights, TransCanada will not initiate any further steps before April 22, 2008 to advance its NCC application through the AUC’s process, while TransCanada seeks to meet the Lubicons regulatory requirements and an agreement not to oppose the application".

The second letter also included another paragraph that read:

"Armand Cardinal, Robert Kendel and myself are prepared to meet in Little Buffalo Thursday and Friday, April 16th and 17th, and are prepared to stay the weekend if necessary. Robert Kendel has the authority to speak on behalf of TransCanada to all the commitments that would be made in the agreement."

Following receipt of the second letter we contacted the AUC and asked about timing for the hearing on TransCanada’s application to the province. We were told the AUC "expects to make decisions on status and process by the end of next week". No "further steps...to advance (TransCanada’s) NCC application through the AUC’s process would therefore even be possible until at least April 25th -- three days after the last date TransCanada was proposing to agree it would take no further steps.

I responded to the last version of your April 15th letter on April 17th in the letter you now say "surprised" TransCanada "considering our most recent discussions". For the benefit of others reading this letter my April 17th response reads as follows:

"The Lubicon position is simple and straightforward and has been spelled out to officials of TransCanada many times, including yourself. Our position will not change no matter how many different ways TransCanada officials come at us.

"If TransCanada wants to operate in unceded Lubicon Territory, it must recognize Lubicon land rights and show respect for Lubicon land rights by first obtaining Lubicon agreement not to oppose an application to provincial regulatory agencies before applying to Provincial regulatory agencies for authority to proceed in unceded Lubicon Territory or, since TransCanada has already knowingly disrespected Lubicon land rights by applying to provincial regulatory agencies for authority to proceed in unceded Lubicon Territory over Lubicon objections, by now agreeing not to proceed with that provincial application until Lubicon agreement not to oppose that application to the province has been obtained. Anything less is effective Lubicon acceptance of provincial jurisdiction over unceded Lubicon land and that’s something the Lubicon people won’t do unless and until rights to our lands and resources have been voluntarily ceded to Canada by us through treaty in the way provided under Canadian law.

"TransCanada agreement to "not initiate any further steps before April 22...while TransCanada seeks...Lubicon...agreement not to oppose..." is not the same thing as we all know. Not even close. With the Alberta Utilities Commission contemplating process and status until at least the end of next week, there aren’t even any steps for TransCanada to take "before April 22nd". What TransCanada is effectively proposing is to proceed with its application to the province while talking to us as though -- as your Mr. Kendel put it during a meeting with us last December 17th -- there’s ‘no relationship’ between talking to us about our rights and applying to the province for authority to proceed with construction of a pipeline across unceded Lubicon Territory without Lubicon consent. There is a relationship between recognizing Lubicon land rights and building a pipeline across unceded Lubicon Territory and TransCanada will have to start recognizing and respecting Lubicon land rights if TransCanada wants to operate in unceded Lubicon Territory.

"Please let us know if TransCanada is ever prepared to recognize that the Lubicon people have rights, and that TransCanada is prepared to start respecting those rights by obtaining Lubicon agreement not to oppose an application to provincial regulatory agencies before proceeding with its application to provincial regulatory agencies. The Lubicon people will then be prepared to meet with you and negotiate Lubicon agreement not to oppose an application to provincial regulatory agencies. We are not prepared, however, to keep meeting with TransCanada officials to discuss our rights while TransCanada proceeds with an application to provincial regulatory agencies that is based on a denial of our rights, however TransCanada tries to disguise that reality with various enticements, tricky proposals, tricky wording and different kinds of pressure."

You phoned Fred Lennarson later in the day on April 17th, indicated that TransCanada was "somewhat surprised at the letter and the response", and said "we’re going to give it some thought and we will reply by the end of the day tomorrow in a letter".

You phoned Fred Lennarson again at 5:20 pm the next day and said you’d like "a little more time on the letter to get it right and to get it on the computer". You asked "Would it be OK to get back to you first thing Monday morning?"

At 4:22 Monday afternoon, April 21st, we then received your short two paragraph, three sentence letter formally advising us of TransCanada’s "surprise" at our response to the second version of your April 15th letter, telling us that you required "some time" to "consider the options" available to TransCanada and saying that you will now "respond to the Lubicon Nation during the week of May 4th, 2008". In the interim, we presume, TransCanada will be proceeding with its provincial application to proceed with construction of a major new 42" gas pipeline through Lubicon Territory without Lubicon consent.

Given the specifics of the "recent discussions" to which you refer in your letter of April 21st, perhaps you can explain to us, and to TransCanada shareholders as well, what it is that surprises you about the April 17th Lubicon response to the latest offensive word game TransCanada tried to play in the second version of your April 15th letter.

Sincerely,

Original Signed By

Bernard Ominayak, Chief, Lubicon Lake Indian Nation

cc: Mary Corkery, Executive Director, KAIROS Ecumenical Justice Initiatives (mcorkery@kairoscanada.org)

Br. Pierre Viau, Regroupement pour la responsabilitè sociale et l’èquitè (RRSE)(viapr@simpatico.ca)

Rev. David Schilling, Interfaith Center on Corporate Responsibility (ICCR)(dschilling@iccr.org)

Peter Chapman, Shareholder Action, Research and Education (SHARE) (pchapman@share.ca)

Ms. Leslie Lowe, Interfaith Center on Corporate Responsibility (ICCR) (llowe@iccr.org)

Francois Meloche, Groupe Investissement Responsable (fmeloche@investissementresponsable)

Nancy Palardy, Michael Jantzl Research Associates (npalardy@jantziresearch.com)

Chantal Watson, Freedonia Corporation (info@freedonia.ca)

 


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