Reproduced for your continued information on the struggle of the Lubicon Lake Indian Nation is a detailed account of negotiations between the Lubicon Lake Nation and the Province of Alberta, as well as some background on the current impasse. ************************************************************************ Lubicon Lake Indian Nation Little Buffalo Lake, AB 403-629-3945 FAX: 403-629-3939 Mailing address: 3536 - 106 Street Edmonton, AB T6J 1A4 403-436-5652 FAX: 403-437-0719 September 19, 1990 On June 1, 1990, Lubicon representatives presented the Alberta Provincial Government with a draft settlement agreement. ( Media reports and other materials pertaining to presentation of that draft settlement agreement are attached to the actual mailout package). Excepting only wildlife management and environmental protection, which are the subjects of a separate agreement between the Alberta Government and the Lubicon people, this Lubicon draft settlement agreement covers in detail all of the issues which must be resolved to achieve a full and final settlement of Lubicon land rights. If both levels of Canadian Government were to sign this document, it could literally serve as a final settlement agreement. Provincial Government negotiators asked for a couple of weeks to study the Lubicon draft settlement agreement before discussing it. Lubicon representatives agreed. On June 19th Provincial Government negotiators asked for another week before meeting to discuss the Lubicon draft settlement agreement. "What's taking so long", they said, "is that we're trying to develop an alternate draft agreement". Again Lubicon representatives agreed. Lubicon and Provincial Government negotiators then met on June 26th to discuss the Lubicon draft settlement agreement and the "alternate draft agreement" which Provincial negotiators had supposedly been "trying to develop". There was no discussion of the Lubicon draft settlement agreement, however, and no alternate draft agreement was ever produced by Provincial Government negotiators. Instead Provincial Government negotiators simply advised Lubicon negotiators that "The parties are too far apart on the issues and we therefore have to look at some kind of mediation or arbitration of outstanding issues". They asked if the Lubicon people would be prepared to again support the kind of independent three person tribunal proposed by Alberta Premier Don Getty in March of 1988, consisting of one person selected by the Lubicons, one person selected by Government and a third person selected by the first two. Lubicon negotiators indicated willingness to consider any sincere arbitration proposal but also told Provincial Government negotiators that discussion of an arbitration proposal was clearly a step backward when there was a complete draft settlement agreement on the table. A more productive approach, Lubicon negotiators said, would be for Provincial negotiators to make detailed counter proposals. Making detailed counter proposals, Lubicon representatives said, would also be more consistent with the agreement made the previous July between Alberta Provincial Premier Getty and Lubicon Chief Ominayak to negotiate a draft settlement agreement which both the Province and the Lubicons could support. Moreover, Lubicon negotiators said, the Federal Government would have to be involved in any arbitrated resolution of the issues and Federal representatives had in the past only used discussion of arbitration models to buy time and avoid dealing with the issues -- always in the end refusing to agree on necessary arbitration terms and conditions. They reminded Provincial negotiators that the Federal Government had earlier rejected the three person Getty tribunal, proposing instead the selection of "one mutually agreed mediator". They pointed out that Federal officials then used agreement to select "one mutually agreed mediator" to block proposed mediation by systematically rejecting the names of suggested mediators, including even those which Federal negotiators had themselves originally put forward. Under these circumstances, Lubicon negotiators said, the Lubicon people now had little choice but to conclude that efforts to achieve a negotiated settlement had failed, and that they must therefore once again start making preparations to protect vital Lubicon interests on the ground -- at least unless and/or until full agreement on the details of an arbitration process had been achieved. Thirdly, Lubicon negotiators said, after years of deliberate delay on the part of both levels of Canadian Government during which development activity had proceeded apace and essential Lubicon interests had been irreparably damaged, any such arbitration would now have to be conducted within a reasonable, pre-agreed time frame; be binding; be final and not be subject to deliberately endless, deliberately fruitless appeal through the Canadian courts. And finally, Lubicon negotiators said, in order to decide issues like compensation, any such arbitration would have to first determine whether the Lubicon people retain aboriginal title to some 4,000 square miles of traditional Lubicon land, as the Lubicon people maintain, or only have outstanding treaty rights over approximately 100 square miles of reserve land, as both levels of Canadian Government maintain. Provincial Government negotiators asked for another couple of weeks to discuss the possibility of an independent tribunal with Provincial Cabinet and with representatives of the Federal Government. Lubicon representatives agreed. On July 13th Provincial negotiator John McCarthy phoned Lubicon lawyer James O'Reilly and advised that Federal officials had "rejected the whole process of arbitration". On August 2nd Mr. McCarthy phoned Mr. O'Reilly again, claiming that he'd "earlier got (his) wires crossed". He said that "the Feds are prepared to consider arbitration if the Province is involved as well". However, he said, "instead of a three person tribunal, the Feds want only one, mutually agreed mediator". Mr. McCarthy said that he would "now be taking information on the Federal Government position back to the Province for instructions". "Earlier", he said, "the Province didn't want to be involved in arbitration". On September 4th Mr. McCarthy phoned Mr. O'Reilly a third time. This time Mr. McCarthy told Mr. O'Reilly that he'd gone back and "got new instructions from Alberta". He said that the Provincial Government was now prepared to "reconsider" its position that arbitration only be between the Feds and the Lubicons. He said that he'd been asked "to work out suitable terms of reference". Mr. McCarthy told Mr. O'Reilly that he'd therefore contacted Federal negotiator Brian Malone and proposed a meeting of the three negotiating teams to discuss suitable terms of reference. He said "Malone countered with a meeting of the legal people only". He asked if Mr. O'Reilly could meet with "the legal people only" on September 10th and 11th. Mr. O'Reilly told Mr. McCarthy that he'd have consult with the Lubicon people about the proposed meeting and get back to Mr. McCarthy. Normal Lubicon policy is to refuse one-on-one meetings with Federal Government representatives since in the past Federal Government representatives have deliberately misrepresented what transpired at such meetings. Mr. O'Reilly then checked with Lubicon representatives who opposed a meeting of "legal people only" to work out suitable arbitration terms of reference. He was unable to get back to Mr. McCarthy about the proposed meeting, however, and therefore simply assumed that there'd be no meeting. On September 10th half-a-dozen representatives of both levels of Canadian Government -- including both lawyers and non-legal technical support people -- appeared at Mr. O'Reilly's office for the proposed meeting. They appeared at Mr. O'Reilly's office without benefit of the meeting having been confirmed, and with non-legal people in tow, because they had interests to pursue and knew from previous experience that Jim O'Reilly is too civil a man to simply slam the door in their faces. Taking advantage of the decency and civility of Lubicon representatives is a tactic which they've employed before. Federal Justice Department lawyer Ivan Whitehall told Mr. O'Reilly that he's "prepared to recommend arbitration" but wanted "only one mutually agreed person". Provincial negotiator McCarthy told Mr. O'Reilly that "The Province is prepared to put into the hands of a 3rd person whether the ('take-it-or-leave-it') offer was fair or not". Mr. O'Reilly told Federal and Provincial Government representatives to put any arbitration or mediation proposals they might have in writing. As of the date of this document, nothing in writing has been received. There are therefore now no substantive negotiations between the Lubicon people and either level of Canadian Government. Consequently there is no hope for a negotiated settlement to protect vital Lubicon interests. Given the history involved it's very hard to take current talk about an arbitrated settlement seriously, and it's very easy to conclude that the only purpose of such talk is to hold out a little bit of hope to the Lubicon people so that they don't take action on the ground. And, in light of documented Lubicon experience with the Canadian judicial system, there's clearly no hope for legal redress through the Canadian Courts. In the meantime massive resource exploitation of unceded Lubicon lands is continuing apace. Representatives of Norcen Energy Resources have indicated that they intend to re-open shut-in Norcen wells in the near future -- under force of arms if necessary. And, contrary to an agreement made with the Lubicon people in March of 1988, Japanese forestry giant Daishowa is busy constructing bridges intended to transport huge amounts of timber out of the traditional Lubicon area as early as this fall. The Lubicon people are thus basically in the same position as they were on October 14, 1988 -- the day before Lubicon assertion of jurisdiction and establishment of blockades at key points of entry into the traditional Lubicon area. They must act on the ground to defend themselves and their vital interests or accept extinction as a viable, independent society. Background on the current impasse is as follows. On January 24, 1989, representatives of the Canadian Federal Government effectively terminated Lubicon land negotiations with a surprise "take- it-or-leave-it" settlement offer which they knew in advance could not be accepted, because it made no provision for the Lubicon people to replace the shattered Lubicon economy and way of life with a hopefully viable new economy and way of life. Since that time there've been no substantive negotiations between the Lubicon people and the Federal Government, although talks have continued until now between the Lubicon people and the Alberta Provincial Government. Immediately following collapse of negotiations between the Federal Government and the Lubicon people, Federal Government representatives made clear by their actions that they'd never been serious about a negotiated settlement in the first place. Rather they'd only used the pretence of serious negotiations to set the stage for an all-out Canadian Government effort designed to subvert duly elected Lubicon leadership and discredit the Lubicon cause. This Canadian Government effort to subvert duly elected Lubicon leadership and discredit the Lubicon cause included a massive disinformation campaign spearheaded by a professional propagandist named Ken Colby, and the sending of Federal Government agents into northern Alberta to try and organize the overthrow of duly elected Lubicon leadership. The effort to politically overthrow duly elected Lubicon leadership failed on May 31, 1989, when current Lubicon leadership was unanimously re-elected, but on-the-ground efforts by the Canadian Government to subvert Lubicon land rights have continued and soon reappeared in the form of a new Band created by the Federal Government called the Woodland Cree Band. In early March, 1989, Premier Don Getty contacted Lubicon Chief Bernard Ominayak and asked if there was anything he could do to help re-start negotiations between the Lubicon people and the Federal Government. Premier Getty reaffirmed his commitment to achieving a negotiated settlement of Lubicon land rights and proposed to arrange a meeting between himself, Chief Ominayak and Canadian Prime Minister Brian Mulroney. Chief Ominayak agreed to participate in such a meeting but Prime Minister Mulroney refused, taking the position that Chief Ominayak should contact the Prime Minister's newly appointed Indian Affairs Minister Pierre Cadieux if the Lubicon people wished to communicate with the Federal Government. Mr. Cadieux then immediately issued a public statement repeating that the Federal Government's unacceptable "take-it- or-leave-it" settlement offer was final and wouldn't be changed. Chief Ominayak and Premier Getty met again on July 23, 1989, to discuss the continuing problem created for them both by Federal Government unwillingness to engage in good faith negotiation of Lubicon land rights. The Chief and the Premier of course each represent interests in northern Alberta which ultimately can only be protected through successful negotiation of Lubicon land rights; however, under the Canadian Constitution, only the Federal Government is legally empowered to negotiate a settlement of aboriginal land rights. On July 24th the Chief and the Premier decided to continue the negotiations which Federal negotiators had prematurely terminated the previous January with the Federal Government's surprise "take-it-or- leave-it" offer, inviting the Federal Government to join negotiations between the Lubicons and the Provincial Government, but also agreeing to proceed with or without Federal Government involvement. While negotiations not involving the Federal Government of course couldn't bind the Federal Government, agreement between the Provincial Government and the Lubicon people on all outstanding issues, including issues for which the Federal Government carries primary if not exclusive constitutional responsibility, would clearly place the onus for lack of settlement on the Federal Government. In a very real sense the Chief and the Premier were proposing to proceed with a more comprehensive version of their Grimshaw negotiations. At Grimshaw the Premier and the Chief developed a framework for settlement of the key reserve land issue by agreeing that the Provincial Government would transfer 95 square miles of land from Provincial to Federal jurisdiction for purposes of a Lubicon reserve; that the Lubicon people would accept a reserve of 95 square miles; and that the Federal Government would buy out third party interests in the 95 square mile area -- primarily oil company leases. The Chief and the Premier were now in effect proposing to approach all remaining settlement issues in the same way. Grimshaw infuriated representatives of the Federal Government, not only because the Chief and the Premier had taken the initiative away from the Federal Government in an area of exclusive Federal Government responsibility under the Canadian Constitution, but also because the Chief and the Premier had taken away from Federal officials the ability to blame others for lack of settlement. Grimshaw particularly incensed Federal Lubicon negotiator Brian Malone, who'd earlier been blaming the continuing Lubicon tragedy on supposed lack of Provincial Government and Lubicon willingness to negotiate, and who's been whining and complaining ever since that the Province and the Lubicons solved the key reserve land issue by sending the Federal Government the bill. The day after the Chief and the Premier announced agreement to proceed with what amounted to a more comprehensive version of the Grimshaw negotiations, representatives of the Federal Government announced creation of a so-called new Band with a supposedly competing claim to traditional Lubicon lands. The so-called new Band was called the Woodland Cree Band. The leaders of this new Band were the same individuals whom agents of the Canadian Government had earlier tried to organize in their unsuccessful efforts to politically overthrow duly elected Lubicon leaders. While the Federal Government has never released a full list of Woodland Cree Band members, known members of the so- called new Woodland Cree Band include individuals belonging to a half-a- dozen other organized aboriginal societies with traditional territories located in the area surrounding traditional Lubicon territory. Creation of the so-called new Woodland Cree Band had clearly been in the works since at least the Lubicon election at the end of May. However announcement of its creation the day after the Chief and the Premier agreed to proceed with negotiations was obviously an effort on the part of the Canadian Federal Government to counter proposed negotiations between the Province and the Lubicons. Unable to overthrow Lubicon leadership in a duly called free election, Federal officials were conjuring-up a whole new aboriginal society to challenge the Grimshaw Agreement. The Grimshaw Agreement was of course the basis for the proposed new round of negotiations between the Province and the Lubicons. Asked by both the Provincial Government and the Lubicons to provide a list of the members of the so-called new Woodland Cree Band so that the substance of this new Federal Government manoeuvre could be properly assessed, representatives of the Federal Government refused, taking the position that the Woodland Cree membership list was privileged and confidential. They did not refuse, however, to provide representatives of the Woodland Cree with a Lubicon membership list which was then used by representatives of the Woodland Cree to contact Lubicon Band members and try to entice them into having their names transferred from the Lubicon membership list to the membership list of the Woodland Cree Band. Unwilling to be deflected by the Federal Government's nameless, faceless challenge to the Grimshaw Agreement, representatives of the Lubicon people and the Provincial Government proceeded to organize negotiations as agreed by the Chief and the Premier. On July 27, 1989, Provincial Lubicon negotiator John McCarthy wrote Federal Lubicon negotiator Brian Malone inviting Federal Government participation in proposed negotiations and asking Mr. Malone for "a schedule of convenient dates...after the 15th of August". Mr. Malone responded to Mr. McCarthy's invitation a couple of weeks later -- clearly after Federal officials had devised a Federal Government strategy for derailing proposed negotiations. In his response to the McCarthy invitation Mr. Malone first sought to re-cast the nature of the agreement between the Chief and the Premier. He inaccurately characterized Mr. McCarthy's invitation to join pre- agreed negotiations between the Province and the Lubicons as "relaying the Lubicon Lake Band's request for the resumption of tripartite talks". He inaccurately "recalled" that Lubicon negotiators "unilaterally broke off settlement talks "by refusing to accept the Federal Government's "take-it-or-leave-it" settlement offer". He inaccurately "assume(d) therefore that the Band now wishes to present a meaningful counter- proposal within the bounds of Canadian law". And he then agreed to hear but not necessarily negotiate the supposed counter-proposal which he "assumed" the Lubicon people now "wished" to "present". Next, in order to give Federal officials the time required to formally establish the already announced new Woodland Cree Band -- targeted for August 28th -- Mr. Malone sought to postpone commencement of negotiations until at least September 7th. And third, anticipating that the Lubicon people would object to the continuing presence of professional Federal Government propagandist Colby in closed door negotiations from which the legitimate media was barred, Mr. Colby was "promoted" from "media spokesman" to "assistant negotiator". Lubicon negotiators responded to the Machiavellian machinations of Federal representatives by proposing to commence negotiations in mid- August with or without Federal Government involvement -- as earlier agreed by the Premier and the Chief. If the Federal Government wished to again involve professional propagandist Colby, Lubicon representatives said, the negotiations should be opened-up to members of the legitimate media as well. Negotiations between the Province and the Lubicons commenced on August 23rd. Taking the position that the Federal Government could not officially join the negotiations until September 7th, Mr. Malone sent a pasty-faced Federal Government bureaucrat named Bob Coulter to act as a Federal Government "observer". During the negotiating session on August 24th Mr. Coulter acted to set the stage for Federal Government derailment of the negotiations. First he asked for "a counter proposal from the Band to the Federal Government's January 24th ('take-it-or-leave-it') settlement offer". Next he asked for "a list of people represented by the Band". And then he advised that "The Federal Government is hesitant to proceed with the media present". Lubicon representatives told Mr. Coulter that the Federal Government should stop playing political games and simply return to the negotiating table. They told Mr. Coulter that the Lubicon position on settlement issues was well known and had been spelled out in detail to Federal negotiators the previous December. They told Mr. Coulter that the Federal Government already had a Lubicon membership list, and, if the Federal Government had reason to believe anyone on the Lubicon membership list wasn't represented by duly elected Lubicon leadership, that Federal officials should provide information to that effect. Regarding involvement of the media, Lubicon representatives said, the Lubicon people were prepared to proceed with or without the media present, but not to again bar members of the legitimate media while Federal officials involved their own private, bought-and-paid-for "media man". Mr. Coulter asked for Lubicon representatives to "at least spell out what it will take to settle". Lubicon representatives told Mr. Coulter that the Lubicon people had spelled out many times what it would take to settle. Mr. Coulter asked the Lubicon people to "spell out for the September 7th meeting what it will take to settle". Lubicon representatives indicated that the Lubicon people would be prepared to spell out once again for the September 7th meeting what it will take to settle. On September 1st Mr. Malone formally advised Mr. McCarthy that "Canada will not participate in negotiations at which the media is present". Mr. McCarthy advised Lubicon representatives of Mr. Malone's position. Lubicon representatives told Mr. McCarthy that Mr. Malone had the option of not involving Mr. Colby. On September 6th Mr. McCarthy told Lubicon negotiators that Mr. Malone had reiterated in a telephone conversation that "the Feds will not participate if the media is there". He asked if the Lubicons would object to Provincial negotiators meeting privately with Federal negotiators. He said that he "sensed some movement". He said that he wanted to see if he was right. Lubicon negotiators told Mr. McCarthy that the Lubicon people would not object to Provincial negotiators meeting privately with Federal negotiators. Representatives of the Federal and Provincial Governments then met privately the morning of September 7th at an undisclosed site in Edmonton, after Federal Government spokesmen falsely told reporters that the Federal Government's negotiating team had been delayed by plane trouble and therefore wouldn't be arriving in Edmonton until later that afternoon. Following the meeting between the Federal and Provincial negotiating teams, Mr. McCarthy told the Lubicon negotiating team that Mr. Malone wanted a written statement from the Lubicon people "on what it will take to settle". A statement reiterating the Lubicon position on settlement issues, and predicting that Federal officials only wanted the Lubicon statement in order to release an already prepared response, was delivered to Mr. McCarthy the next morning. Mr. McCarthy delivered the Lubicon statement to Mr. Malone. A couple of hours later Mr. Malone responded with a slightly revised Federal "offer" which had obviously been drafted prior to receipt of the Lubicon statement. As expected the Federal Government's revised "offer" was essentially a carefully crafted political missile designed to torpedo proposed negotiations. It dismissed the requested Lubicon statement as "merely" a reiteration of the Lubicon position "containing no specifics which would advance negotiations". It put forth the newly created Woodland Cree Band as having equally valid rights to the traditional Lubicon area. It stated that the membership of the Woodland Cree and Lubicon Bands will have to be "validated" by both levels of Canadian Government before any "meaningful future discussions" can take place. It asked whether the Provincial Government was prepared to transfer more land to provide a reserve for the newly created Woodland Cree Band or was going to take back some of the reserve land committed to the Lubicon people at Grimshaw. It made clear that the Federal Government's "take-it-or- leave-it" offer would be adjusted downward to take into account a supposedly reduced number of Lubicons resulting from transfers to the newly created Woodland Cree Band. It proposed to amend a section of the "take-it-or-leave-it" offer requiring a full and final release of all Lubicon legal rights which was obviously in conflict with official Federal Government claims about what the so-called offer contained. And it proposed to replace the easily criticized "Socio-Economic Program" included in the earlier offer -- worth approximately ten million dollars if taken at face value -- with an equally inadequate but more shrewdly worded blanket offer of the interest on a ten million dollar fund. Release of the revised Federal "offer" was then immediately followed by a press conference called by Mr. Colby. Mr Colby's press conference had clearly also been planned well in advance. In a typically contrived and practised performance, Mr. Colby sadly told reporters "I don't see what else (the Federal Government) can do". Consequently, he said, "Ottawa won't take any further steps to re-start talks". Under these circumstances, he said, Federal negotiators "see no reason to be here in Edmonton and available to meet with the Band and so we'll return to our homes". On October 28, 1989 -- with no prospects of a negotiated settlement in sight and yet another winter development season about to commence -- Chief Ominayak wrote Prime Minister Mulroney notifying Mr. Mulroney that the Federally-owned oil company Petro Canada would no longer be allowed to operate in unceded Lubicon territory without first obtaining retroactive operating leases and permits from the Lubicon people, respecting Lubicon wildlife management and environmental protection laws, and arranging to pay the Lubicon people royalties for resources extracted -- both past and future. The Chief gave Petro Canada 30 days to comply and indicated that "Failure to meet any of these conditions will make involved projects subject to removal as unauthorized developments on unceded Lubicon territory". The Chief and the Premier then met again on November 16th to discuss the impasse in negotiations between the Federal Government and the Lubicon people. Following the meeting Premier Getty responded to transparent Federal Government manoeuvres by publicly reaffirming the Grimshaw Agreement (which Federal Government officials were seeking to undermine with creation of the so-called new Woodland Cree Band), by agreeing with the Lubicon position that the Federal Government's offer was "deficient" (in that it would clearly not allow the Lubicon people to once again become economically self-sufficient), and by asking Provincial Attorney Ken Rostad to contact Federal Indian Affairs Minister Pierre Cadieux as soon as possible to again try and re-start negotiations. Messrs. Rostad and Cadieux met on November 22nd. Mr. Cadieux agreed to talk but only about implementation of the Federal Government's "take-it- or-leave-it" offer, reiterating that the Lubicon people should go to court if they weren't prepared to accept the Federal Government's "take- it-or-leave-it" offer. Chief Ominayak declined talks to discuss implementation of an offer already known to be unacceptable. He rejected the Canadian Courts as a viable way of settling Lubicon land rights. And he reaffirmed Lubicon intentions to enforce Lubicon jurisdiction over unceded Lubicon territory in lieu of a negotiated settlement. On November 24th Petro Canada announced that it would be shutting down its wells rather than recognize Lubicon jurisdiction. On November 27th the RCMP advised the Lubicon people that they were setting up a special detachment in the Lubicon area to protect Petro Canada wells. On November 28th representatives of the Lubicon people and the Alberta Provincial Government met to review on-going discussions between the Federal and Provincial Governments. Provincial Attorney General Rostad expressed hope of movement on the part of the Federal Government but admitted that there'd been none so far. On November 29th Norcen Energy Resources announced that it would be shutting down the wells which it owned jointly with Petro Canada rather than recognize Lubicon jurisdiction. (These are the wells which Norcen is currently threatening to put back in operation under force of arms.) On November 30th talks between the Federal and Provincial Governments ended without having achieved agreement on making a revised offer to the Lubicon people. Further talks between the Federal and Provincial Governments were held on December 7th and 8th, again without achieving agreement on a revised offer. Still further non-productive talks were held between the Federal and Provincial Governments on December 14th. On December 19th Premier Getty phoned Chief Ominayak and advised the Chief that Provincial negotiators hadn't been able to make "much progress" with the Federal Government. However, Mr. Getty said, he did have "an idea" which he wished to discuss with the Chief. A meeting was agreed for the following day. On December 20th Premier Getty presented Chief Ominayak with a one page, five point written proposal for supposedly bridging the gap between the Lubicon position and the Federal Government's so-called "take-it-or- leave-it" offer. Premier Getty said that Federal officials had not agreed to his proposals but that he thought they would. Premier Getty's first and by far simplest proposal was that "Canada and Alberta would implement the provisions of the Grimshaw accord by establishing a 95 square mile Reserve". Premier Getty's second proposal pertained to "Reserve Construction" valued at $39 million in 1988 Canadian dollars and consisting basically of residential housing, community facilities and community infrastructure. The Premier proposed that the Federal Government "firm up certain elements...(and)... contribute $34 million as provided in its current offer". In addition, he said, the Provincial Government "would supplement Canada's offer through existing programs...(with)...commitments of $1 million for the construction of an access road to the new reserve and up to $3 million for an employment and training program for Band members". On the surface Premier Getty's second proposal seemed to bring the Federal offer to within one million dollars of being adequate to complete required residential housing, community facilities and community infrastructure. This was an impression which Provincial Government negotiators initially sought to encourage. It turned out not to be the case. First the one million dollars for construction of a Provincially owned and maintained access road TO THE NEW RESERVE was not and never had been included in reserve construction costs. Construction of an access road TO THE NEW RESERVE is rather related to providing the Provincial Government with access to the shores and bed of Lubicon Lake -- in accordance with the Grimshaw Agreement. It therefore made no contribution to closing the gap between the $39 million needed and the $34 million supposedly offered by the Federal Government for residential housing, community facilities and community infrastructure. Second it wasn't clear from Premier Getty's written proposal whether the "up to $3 million for an employment and training program" could be used for construction of the required combination Community Shop and Vocational Training Centre, or if the Premier was taking a page from the Federal Government's "take-it-or-leave-it" offer and basically offering to let the Lubicon people "access" existing Provincial Government vocational training program funds. Money to build the combination community shop and vocational training centre would make a major contribution to Lubicon plans for once again achieving economic self- sufficiency. However being able to access existing Provincial Government program funds -- while important to help cover operating costs once the combination Community Shop and Vocational Training Centre was built -- would again contribute nothing to construction of the necessary facility, or to closing the $5 million dollar gap between Lubicon requirements and the Federal Government's so-called "take-it-or- leave-it" offer. Chief Ominayak asked Premier Getty whether the "up to $3 million for an employment and training program" could be used for construction of the combination community shop and vocational training centre. Premier Getty answered that there would have to be talks "at the technical level" about how required vocational training might best be provided. Premier Getty's third proposal pertained to socio-economic development valued at 20 million dollars in 1988 Canadian dollars and consisting basically of commercial and agricultural development. "In lieu of Canada's offer of (the interest from) a $10 million dollar fund", the Premier said, "Canada and Alberta would provide the Band with 2 million per year for a period of ten years". Again apparently simple, the Premier's third proposal also begged several important questions. Chief Ominayak pointed out that the $20 million dollar socio-economic development budget was based on 1988 Canadian dollars, and that the proposed $2 million a year for ten years took into account neither the significant, multi-million dollar effect of inflation nor the actual annual cash flow requirements of related project development. Premier Getty said that he appreciated the Chief's concern regarding inflation and actual annual cash flow requirements of project development. He agreed that annual cash flow could be adjusted in his proposal to take into account actual cash flow requirements of project development. And he wrote by hand across the bottom of his five point proposal that "Construction be guaranteed as to complete projects rather than a dollar amount". Premier Getty's fourth point pertained to the issue of cash compensation and read "Canada would leave open for the Band the option of proceeding against Canada in the Courts on the specific issue of cash compensation". Chief Ominayak rejected this approach to resolution of the cash compensation issue, both because of previous Lubicon experience with the Canadian courts, and because it failed to include consideration of compensation owing from the Province. The Chief made clear to the Premier that any arbitrated settlement of the cash compensation issue would have to include the question of compensation owing from the Province. He asked the Premier if the Premier was still prepared to have the issue of cash compensation determined by the independent three person tribunal originally suggested by the Premier in March of 1988. The Premier told the Chief that he was still prepared to have the issue of cash compensation determined by the earlier proposed three person tribunal. However, he said, recalling earlier Federal Government rejection of his tribunal proposal, he doubted the Federal Government would agree. Premier Getty's fifth and final point said that "releases would be required for all 490 members currently on the Band's membership list...(and)...Alberta would be released fully of any obligations by both Canada and the Band". Chief Ominayak responded to this point by simply reiterating that the Lubicon people are prepared to provide appropriate releases as part of any final settlement agreement. On December 21st Chief Ominayak presented the Getty proposals to the Lubicon people. The Lubicon people decided to seek clarification of unanswered questions before formally responding to the Premier's proposals. Chief Ominayak therefore phoned Premier Getty on December 22nd to again discuss unanswered questions. The Premier proposed to refer these questions to the Provincial and Lubicon negotiating teams for resolution. Due to the Christmas holidays it was not possible to schedule meetings with the Provincial negotiating team until January 15, 1990. On January 15th representatives of the Lubicon people met with Provincial Government negotiators to seek answers to the questions raised by Premier Getty's December 20th proposals. Premier Getty's first proposal regarding creation of a 95 square mile reserve seemed straightforward and therefore raised no particular questions. Regarding Premier Getty's second proposal that the Federal Government actually provide the 34 million supposedly included in the so-called "take-it-or-leave-it" offer, Provincial Government negotiators said that they "believe(d) it will be acceptable to the Feds provided that the releases indicated in (Premier Getty's) point 5 are provided". They said "Full and final releases will be required with the exception that the right to sue for compensation would be deleted". Lubicon representatives asked if Provincial negotiators were proposing that the Lubicon people first fully and finally cede their aboriginal land rights and then try to sue for compensation on the basis of those already ceded aboriginal land rights. Provincial Government negotiators said that the Lubicon people were being asked "to provide a release for land and things provided but not anything more". They said "The Province only wants a release as to obligations regarding land". Lubicon representatives asked about the question of cash compensation from the Province. Provincial Government negotiators said "The Province will require a full and final release with regard to everything -- land and money". They said "The Lubicons could sue the Feds for money but not the Province". Lubicon representatives pointed out that dozens of oil companies had illegally expropriated billions of dollars of resources from unceded Lubicon lands based on leases issued by the Province. They asked about the Provincial Government's position on the Lubicon people suing these oil companies for compensation. Provincial Government negotiators said "The Provincial Government position is full and final release for both the Province and the oil companies". "Otherwise", they said, "The Lubicons could sue the oil companies and the oil companies could sue the Province". They said "It's our position that the Province can't be sued directly or indirectly". They said "It's our position that the Province is out -- fully, finally and forever". Provincial Government negotiators said "We think if the Lubicons went to an independent tribunal they would get less than the 95 (square miles committed at Grimshaw)". They said "We think that the additional land is effectively compensation for the difference between the smaller amount of land owed and the larger amount of land provided". They said "We think the Lubicons are being treated generously and would have one of the largest reserves in the Province". Lubicon representatives told Provincial Government negotiators that all Indian reserves in Alberta had in fact been calculated on exactly the same basis; namely, 128 acres of land per person at the time of first (reserve land) survey with the aboriginal society involved determining its own membership. Since there were many aboriginal nations in Alberta at treaty making time with significantly larger populations than the current Lubicon population, they said, there are in fact many aboriginal nations in Alberta with significantly larger reserves than the proposed Lubicon reserve. They said that any aboriginal nation in Alberta currently with less than 128 acres of reserve land for each of their members had either increased in population, been cheated out of their full reserve land entitlement or lost reserve land typically as a result of outright theft by non-aboriginal people working in collusion with non-aboriginal governments. They pointed out that there are a number of aboriginal land cases pending in Alberta as a result of reserve land being stolen and/or aboriginal people being cheated out of their full reserve land entitlement. Next Lubicon representatives pointed out that the Lubicon people had consistently taken the position that they were not prepared to accept less reserve land than had been retained by other aboriginal people as determined by the same criteria. They pointed out that there had still been no reserve land survey and the known Lubicon population now exceeded 500 -- with the result that the Lubicon people were in fact agreeing to retain less rather than more reserve land per capita than had been retained by other aboriginal societies in Alberta. In spite of the fact that they would be retaining less reserve land than other aboriginal nations, they said, the Lubicon people were still prepared to honour the agreement made with Premier Getty at Grimshaw. However, they said, they were not prepared to let Provincial Government negotiators suggest that the Lubicon people were being treated "generously" when in fact it was the other way around. Similarly, Lubicon representatives said, they were not prepared to let Provincial negotiators suggest that Premier Getty had been "generous" with the Lubicon people at Grimshaw when in fact the truth was again the other way around. At the time of the Grimshaw Agreement, they said, 27 people had been arrested and countless others were headed to the Lubicon area to join the barricades. They said that the situation could clearly no longer be contained simply by force of arms and Provincial Government officials were desperate for a way out of the untenable situation which they'd so unwisely created for themselves. In this context, they said, the Lubicon people had in fact agreed to compromise on the traditional criteria for determining reserve land size, giving up 16 square miles of valuable subsurface rights specifically and deliberately in order to make a deal which would allow Provincial officials to save face. Lastly, Lubicon representatives said, it was offensive and unacceptable to suggest that neither the Provincial Government nor the oil companies carried any financial responsibility for the current plight of the Lubicon people. They pointed out that the Provincial Government and the oil companies are in fact largely responsible for destruction of the traditional Lubicon economy and way of life, and that they are also the primary financial beneficiaries of that destruction -- now to the tune of an estimated six billion dollars. Lubicon representatives concluded their reaction to the suggestion that the Lubicon people were being treated "generously" by proposing to proceed to other issues in an effort to determine if a greater measure of agreement couldn't be achieved in other areas. In that way, they said, it would at least be possible to clearly define areas of agreement and disagreement. Regarding the one million dollars for construction of a Provincial Government access road to the new reserve, Provincial negotiators acknowledged that this amount hadn't ever been included in reserve construction costs and was rather related to providing the Provincial Government with access to the shores and bed of Lubicon Lake -- as per the Grimshaw Agreement. Consequently, Provincial negotiators agreed, the one million dollars for construction of an access road to the new reserve made no contribution to closing the gap between Lubicon requirements and the Federal Government's so-called "take-it-or-leave- it" offer. Regarding whether the "up to $3 million for an employment and training program" could be used for construction of the proposed combination community shop and vocational training centre, Provincial negotiators said "We're aware that the need is for the construction of a facility". "However", they said, "where the vocational training centre is to be located is up in the air". They said "Locating it just off the reserve, perhaps in Little Buffalo, would be cleaner". Lubicon representatives challenged the view that locating the combination community shop and vocational training centre "just off- reserve" would be "cleaner", pointing out the multi-purpose nature of the proposed facility. In addition to being a vocational training facility for both secondary and post-secondary students, they said, the proposed community shop/vocational training centre was intended to serve as a public works facility, where, among other things, elements of the on-going Lubicon construction program would be prefabricated and essential community capital equipment repaired and maintained. In order to effectively serve as a public works facility, they said, the involved building would have to be available to the Lubicon people 24 hours a day and consequently be under Lubicon control. On June 1st, after nearly 6 months of hemming and hawing about what might or might not be possible with the Premier's offer of "up to $3 million for an employment and training program, Provincial Government negotiators advised Lubicon representatives that "The Province cannot build the (community shop/vocational training) building". What they proposed instead was $2 1/2 million dollars over a five year period to support a Provincially owned and operated trailer located just off- reserve which would offer the Lubicon people academic up-grading courses. Provincial Government negotiators acknowledged that provision of a Provincially owned and operated trailer located just off-reserve and offering the Lubicon people academic up-grading courses had little to do with Lubicon vocational training plans, made no contribution to construction of the required community shop/vocational training centre, and did nothing to close the gap between Lubicon requirements and the Federal Government's so-called "take-it-or-leave-it" offer. Regarding Premier Getty's third point about a twenty million dollar fund for commercial and economic development, Provincial negotiators first asked Lubicon representatives to delineate actual annual cash flow requirements of project development over a ten year period. Lubicon representatives agreed to provide the requested information but proposed instead an eight year development period. (Original Lubicon projections had been for a five year development period, which in the area of agricultural development had been extended to eight years during negotiations with the Federal Government in December of 1988.) Cash flow requirements over an eight year period were then prepared, presented, explained and discussed -- all of which of course took time. In light of subsequent developments, and in retrospect, it now seems likely that the time it took to do such work was the primary reason for requesting that it be done. Regarding the effect of inflation on the 1988 budget figures, explicitly discussed and agreed by the Chief and the Premier during their December 20th meeting, Provincial negotiators agreed on January 15th to consult with their Federal Government counter parts about "up-dating the figures" to take inflation into account. On March 19, and contrary to the explicit agreement between the Premier and the Chief, Provincial negotiators advised Lubicon representatives that any Provincial Government contribution to Lubicon socio-economic development would not take inflation into account. They said "We understand that the Lubicons are talking current day numbers, but the Province is talking the value of money over a period of time -- which is less". On June 26th Provincial negotiators reported on discussions with their Federal counter-parts regarding the inflation issue. They said "There is no evidence of willingness on the part of the Feds to move except that they might be willing to spread out the dollar figures (included in the so-called "take-it-or-leave-it" offer) over a longer term in order to let the Band save face". "Spreading out the dollar figures over a longer period of time", they explained, "would make the numbers look bigger, although they would not actually be bigger". In was in this context, with Premier Getty's December 20 proposals clearly contributing little of substance to resolution of outstanding issues, and with no evidence of progress towards negotiation of a draft settlement agreement which both the Lubicons and the Province could support, that the Lubicons decided to prepare the draft settlement presented to Provincial Government negotiators on June 1st. The explicit purpose of the draft settlement agreement was to try and proceed in a more ordered and orderly way so that there would at least be a beginning and an end to the discussions, with clear conclusions regarding where the Province and the Lubicons stood on all outstanding issues. The draft settlement agreement now stands as a detailed statement by the Lubicon people responding to the question "What do the Lubicons want?" It also provides the information necessary for people to independently assess whether the Lubicons are proposing a reasonable settlement of Lubicon land rights, or, as the Federal Government claims in its professionally prepared anti-Lubicon propaganda campaign, are just being "greedy". A copy of the Lubicon draft settlement agreement is available upon request, although special arrangements will have to be made to cover the cost of photocopying and postage since it's a big document. ************************************************************************ For more information contact web:car by e-mail or in writing Aboriginal Rights Support Group Committee Against Racism P.O. Box 3085, Station B Calgary, Alberta T2M 4L6