Jacques Johnson: Thank you. I'm wondering if you have any reaction to the fast-tracking of other Bands surrounding the Lubicon people, like the Woodland Cree and the Loon River, I think they call it, on the east side of -- Woodland Cree on the west. Do you have any comment on that? Davie Fulton: My comments would be limited and somewhat guarded because I don't know all the facts. On the face of it, what I heard about the Woodland Cree development -- it certainly could be interpreted, and I'm not in a position to say was, but it could be interpreted as an attempt to undermine the Lubicon position by drawing off persons who would otherwise be members of that Band and persuading them to become members of another Band, a newly constituted Band I believe, with the effect of severely diminishing the numbers the Lubicon were able to say were their members and therefore supported their claim, firstly to decide the reserve and secondly to measure the compensation and programs of the future. I cannot prove that, but I can only say what I heard. That suggests that that was the result. It seems strange to me. It can form reasonable grounds for the suspicions or the reaction of the Lubicon Band that these things would be done with a Band that had never existed at the very time when the Lubicons were trying get attention to and a settlement of their claim, which had been long overdue. That's all I can say. Jacques Johnson: I would like to ask some questions about compensation, but before I do I just want to see if on the two questions I've asked if there is anymore that the Commissioners would like to ask. In regards to compensation, could you sum up for us the different grounds for a claim that the Lubicon people are asking for? What are those grounds? I think they are in your paper but we would like to have them on record here and for the people here to hear what are the grounds again. And then I would like to ask you a follow-up question -- if you think that the amount that the Lubicons are asking for -- I believe it's in the area of $100 million in compensation -- if that figure is reasonable or if it's really overly exaggerated. Davie Fulton: I thought I had summarized the grounds in my opening statement this morning. But in case it wasn't clear, I'll try and do so. First is the claim for a reserve. Of course the grounds for that claim are that they were promised one. In 1933, I believe it was, they first applied for recognition as a Band which would give them status as Treaty 8 Indians who would be treated in accordance with Treaty 8 and would entitle them to a reserve in accordance with the Treaty 8 formula. They were recognized as a Band in 1940 and an undertaking was given and according to that they would be given a reserve -- the area was agreed upon, the general location was agreed upon -- and indeed the size of the reserve, the membership of the Band, 127 I think was the then agreed figure -- and therefore the size of the reserve, 25.4 square miles was also agreed upon. And then the process provided for in the Treaty and relevant legislation was that the federal government would make a formal submission, request to the government of Alberta to set aside that land in accordance with the Transfer of Resources Agreement of 1930 between Canada and Alberta, to set aside that land for a reserve. That's what Alberta had agreed to do in that previous agreement. All that was necessary was for the federal government to make a survey and make the official request. That was not done. That has never been done. So that for 52 years now the Band has been the victim of an unfulfilled promise that they would have a reserve. I suppose you might say the basis or the core of their claim is that they were never given this reserve that they were promised. However, they are also claiming now that the size of the reserve should be dependent upon the present population of the Band, because that is the precedent that the size of the reserve is determined by the population of the date of the creation of the reserve. That now would be 1992, and the information I have is that there is no question that there is a substantial increase in the number of the Band now as compared to the number in 1940. So that's the basis of it. That claim also gives rise to, or is the foundation for the claim for compensation for oil and gas revenues which have come from the reserve, the area that was promised them in 1940, which has been subject to oil and gas development for fifteen or more years now, and very substantial revenues in terms of royalties and actual values have been derived from the oil and gas that has been taken from that reserve area, the area promised in 1940. So that claim is also based on the undertaking to create a reserve. The other claim for compensation with respect to the loss of income from hunting and trapping in their traditional hunting and trapping area -- on that basis it is primarily that Native title was not extinguished in their case because they did not subscribe to the Treaty, they were not included in the Treaty. They still haven't been. Therefore, they say, the rights that they were given in the Treaty of hunting and trapping as formerly have not been fulfilled; they have suffered loss, miserable financial loss; they've suffered physical loss also, physical damage, therefore giving rise to further claims. Whether that could be based on Native title of treaty rights or whatever, they have a claim in equity which I think should be recognized and negotiated and settled. Other claims then such as compensation for lack of treaty entitlement. Under the treaty the Bands that were recognized and dealt with were promised certain assets in the way of agricultural implements and assistance, also assistance with regard to trapping facilities and various other things which were prescribed by the treaty. Had the promise made in 1940 been fulfilled, the Band would have come under the treaty and been entitled to those benefits. A measurement of the financial value is difficult, but it can be done -- what have they missed as a result of not having the benefits. So that claim is based upon the failure to fulfill a promise. There certainly is, as far as I know, a substantial legal basis for the claim for damages. The claim -- a claim or a request or whatever you want to call it -- for the right to a voice of importance, a powerful voice in the management and rehabilitation of the wildlife population -- a program which begins with rehabilitation and maintenance -- is on the face of it a reasonable one because that is the basis of their living. How long will it be after they're on a reserve before they can make a living off agriculture and the other things which are the normal result of setting up a reserve is an open question. How long will that be? In the meantime, up until now, they have been dependent upon their livelihood from the wildlife. Therefore they want a voice in the management of that wildlife because it's perfectly obvious to them that unless they get it, they're not going to -- there's a question anyway whether unless that's recognized, they won't have any restoration of that wildlife population and maintenance thereof. So therefore they want a say in the management and restoration of a maintenance program with respect to wildlife, because that is a fundamental support for their lifestyle. The reason, therefore, for that claim is that you only have to look at the record of debilitation, poverty, sickness and so on they have suffered over these last years since they haven't had that means of subsistence and support. Then they also claim, in addition to the claim for loss of treaty benefits, they submit a claim we call a request -- I think it's right to call it a claim -- for an adequate program, a sufficient program of settlement on their reserve when they get a reserve, for development of infrastructure, housing, schools, roads, sewage, all that's necessary to make a liveable and sensible reserve. They want an undertaking that that will be done and that will be done quickly and effectively so they can move from their present poverty- ridden state on to a reserve and back to a situation which would be in conformity with Canadian standards, whether they be Canadian standards or white Canadians or Native Canadians -- because the standards that they have been compelled to accept and have been for years now have certainly not been in conformity with that of a civilized country. That covers most of the areas. Is there any area you might like to ask me about? Jacques Johnson: My next question was, is there any evaluation or appreciation in terms of dollars that has been done by yourself in terms of what the value of compensation might add up to, looking at all this long list of compensation bases? Davie Fulton: No. I never went through that process, but I did know, or did observe and see from other calculations sufficient to convince me that it would be a very substantial sum. The revenues from oil and gas on the reserve alone are very considerable. If there be a claim, if the claim is recognized for the loss of revenues in their traditional area, they would be even greater. The loss of revenue from wildlife -- I have seen the figures there. They're summarized in my report. I didn't do a final calculation in total. All that needs to be extrapolated over the years -- I believe for 3 and 4 and 5 years there were examples of what happened. That would need to be extrapolated over the years. It's dangerous, I think, to speculate -- you've mentioned, or I've heard mentioned, the figure in the area of $100 million. I do not think that would be a great exaggeration of the claim. It might be generous, but I don't think it would be unreasonable... Jacques Johnson: Thank you. Davie Fulton: When I mention that figure, even if it's generous -- and I think it might have some element of generosity -- but that is on the basis that is justifiable on the basis of the hardships they've suffered, the indignities to which they've been subjected, and the misery they've endured over these past years through faults entirely other than their own. Jacques Johnson: Thank you. Menno Wiebe: Maybe just an elaboration on Jacques' question. You have mentioned several times that a generous settlement, though not excessive, generous though reasonable settlement would resolve some of the other questions. The figure that was mentioned here is somewhere within the ballpark of what you were talking about or thinking about? Davie Fulton: I don't know. I never got from them any actual figures. It was my impression, however, that if they got generous treatment on the main substance of their claim, other elements of it might be abandoned or settled or put aside. It was my impression that if they got a generous response to their claims with respect to the reserve, to the entitlement for loss of oil and gas revenues there, other claims for loss of livelihood, etc. they might be inclined to settle on the question Native title to their traditional area, provided they're compensated for loss of livelihood. Menno Wiebe: I have some other questions, but there may be some more on the matter of compensation... Davie Fulton: (inaudible) Menno Wiebe: I would like to then ask another question if I may. We were shocked and surprised that the unusual document which you produced was shelved, that it didn't go further than the office in effect. We think that there isn't a person with better credentials than yours and with not a better status than yours to have done this kind of survey and made recommendations. How do you feel about us pursuing the main contents, the principles of your report as a basis for recommending further negotiations? Davie Fulton: Well, I'd have to say, sir, that I have had no discussions with the federal or provincial people after that report, which I regret very much. Therefore I have never seen nor known of any basis upon which it would fall. I can't say that everything in it should be taken quite literally, because there may well be areas where I failed to appreciate some aspects of the federal or provincial position or didn't give it full effect. But on the whole I've endeavoured seriously in that report to take account of all the positions that I heard and endeavoured to come up with a reasonable approach to a compromise. So all I can say is that as far as I'm concerned, it would still stand as a sound basis for further negotiation, and that I'm not aware of any demonstration having been made that it doesn't stand on a solid basis...(change tapes)...would hear from them what part of it they don't accept. And that should create the opportunity for further discussion. Menno Wiebe: Well, if they haven't responded to you we wonder about a similar lack of reply. If I can ask another question -- one of the findings of this Committee so far has to do with the nature of the negotiating structures. To us it looks like considerable imbalance with two levels of government having resources and legal expertise almost inexhaustible representing the majority population and all of the industrial powers to go with it, versus a very small group of people who are geographically removed from the main centers and have considerable obstacles in terms of style, resources, etc. What recommendations would you have for improving what seems to be a lop-sided, one-sided type of negotiation? Maybe if I can just elaborate a little further. The legal process, the matter you mentioned about the retroactive legislation by a government who shore up support for the courts, or "take-it- or-leave-it" kind of offers which represents a power block, or the highly confrontational nature of the negotiations resulting in the kind of deadlocks. Can you offer some alternatives that this Commission might consider by way of a different style of negotiating, or different mechanisms? Davie Fulton: Well, the Band has asked already for compensation for the costs -- legal and related costs -- which they've incurred to present their case both in court and in preparation for my hearings and for any subsequent hearings, so if they would get compensation for that it might put them in a position where they could retain for themselves further services if necessary, because these things are expensive. Another approach would be to ask the governments to undertake that cost themselves. Now mind you the federal government has taken a position -- I think I referred to it in my discussion paper -- that they do not pay the costs of the people who sue them unless so ordered by the courts. But now we're talking about negotiation, not a court process. So it might well be that it would be healthy to reflect on it and decide that it is not unreasonable to ask that some financial assistance be given to the Band for this purpose. Another alternative approach which has been put forward and not accepted -- it might be the basis for further discussion -- is mediation, the mediation process. with the Band's interests, then again, the cost of presenting their position to be underwritten by the government. All I can think of there is simply asking the governments to put the Band in a more equitable position by undertaking to meet at least a part of the costs, their costs, of whatever negotiation or settlement process is agreed upon. Menno Wiebe: Thank you. Now that your federal responsibilities have come to an end, or at least with the Commission, I wonder what you see as your continuing role in this Lubicon case, if any? Davie Fulton: That's not a matter that I am in a position to respond to because I haven't been, no one's suggested to me that I might have any position or part in it. I can only say that in the past I have said, and I have meant with utmost sincerity, that I would do anything I could to assist in the process of settlement. The years have moved on. I'm now in an area where I'm contemplating retirement or indeed am retired already. I think it would depend upon what I was asked to do, what was involved. All I can do in a positive way in response to your question is say that I have the utmost good will in the world towards the Band and towards a fair settlement, a fair settlement; and I would be prepared certainly to consider, entertain any request for assistance that I might give. Jacques Johnson: Sir, I think that the Commissioners seem to be very satisfied with the answers you've provided us. For this we're very grateful. Before closing off though I was wondering if you would have any last words that you would like to share with us about any area that perhaps you would like still to add to what you've already said? Davie Fulton: I think only this -- if I have taken an extreme position or said any extreme things, I regret it. I've tried to be moderate in what I've said here. I say that by way of introduction to a thought that I've had for some time. And that is the need for moderation on all sides. I know that the Band has had dreadful experiences and all I can say with regard to that is it is understandable if sometimes their attitude or statements seem somewhat harsh or accusatory. But even taking that into account, I have feelings sometimes that some of the methods of statement of their claims and the ways stated are extreme. I think also some of the actions of government have been extreme. I think therefore that what should be urged is moderation in approach on all sides -- not moderation of your effort, not moderation of an intent to get a settlement but rather a reasonableness in expressing your position. I'm not talking about you. I'm talking about the participants -- the people in the three parties. And some evidence of good will. Evidence of readiness to accept compromise, if you like, provided it's fair and it's matched by concessions from the other side. In other words, a real desire to reach a negotiated settlement on all sides, not just on the Band's part but on the governments' parts as well. Anything that can be done to encourage that, that approach, would I think be most productive. And that approach requires, again as I say, moderation in the way one expresses oneself. Evidence of good will is one of the essentials for further progress in this matter. Jacques Johnson: Thank you, sir. If I may conclude by saying that a spirit of moderation, evidence of good will is evidenced in your report, fairness, good balance, respect and an intense desire to come up with a solution that will be equitable and acceptable to all. We have had further evidence of this attitude as you stated it to us today, and we'll certainly keep that in mind. I would like to thank you, therefore, on behalf of the Commission for accepting to appear and to give us all the excellent evidence that you've given today on a process for a successful negotiation. Davie Fulton: Thank you for your very generous comments, Mr. Chairman. If I, with what I have said or done here today, is of any assistance to bring about progress in the process of settlement, I shall feel most privileged to have had the opportunity, and that any effort involved was worthwhile. Thank you very much. Jacques Johnson: Thank you, sir. We will now take a short break. In about ten minutes, at 2:30, if Chief Bernard is willing to take the stand we would have a couple of questions to raise with him. Thank you. Jacques Johnson: I would like to invite Chief Ominayak to please take the stand. Chief Bernard, we're very happy that you've accepted to be with us again today. The invitation that we are extending to you is the same invitation that we're extending to the federal government as well as to the provincial government. Both have been invited more than once. In fact last week we reiterated in writing an invitation for them to come and meet with us. We are happy that one of the three parties is here today. If there are federal or provincial people in the crowd here that would like to take the stand you may identify yourself and we would be happy to hear from you. I have one main question and it is to ask you if you are able to give the Commission any idea about the progress of the negotiations with the federal and provincial governments? Bernard Ominayak: I'd like to thank the Commission for the invitation. I'm also glad that Mr. Fulton is here and has shared his thoughts and his experience throughout the process that he had undertaken some years ago. It's unfortunate that the recommendations that he made were never dealt with. So I thought I'd thank the Commission. Again, I guess it's unfortunate that federal government representation isn't here or the Alberta government, but I'm not surprised. I think that's the experience that we've had for a long time. We get into situations where the truth is sought and then they're nowhere to be found. Regardless of lack of interest on their part in this process, I hope that the Commission is going to be able to follow through and come out with recommendations and I hope that the input that has been made will make this possible, meaning that the public has been invited to be part of this and listen to the Commission and their hearings throughout this Province. I hope that things do turn out in the very near future for the Lubicon people, because that's what this whole process is about. In so far as your question itself about negotiations I'm not aware of any secret or delicate negotiations taking place at this point in time. The last time I met with the Minister there wasn't much that took place. It was a lot like the other meetings. One of the things that we had agreed to some time ago is to hire independent assessors to assess the Lubicon proposals, our counter-proposal to the federal government which has been before them for a number of years, and also the "take-it-or-leave-it" offer the federal government has tabled before us. I believe that the assessors are going to be appearing before you tomorrow to explain what their findings are between the two proposals. My understanding the last time that the negotiators met was that there was the possibility of maybe the federal government funding their portion or their earlier proposal with the cost estimators' findings -- that's somewhat different between the two proposals. I think they're still trying to stick to their own agenda. They're not so much questioning how much a road is going to cost, but rather the width and the size of the road itself, and the length of the road. So they're trying to get out of that whole process again. That was where things were. I'm not aware of any further negotiations. The last time I met with the Minister there was a suggestion that we meet again at some point, but as you all know, the referendum has taken everybody's time and I haven't had any contact with the Minister since the last time I met with him. The negotiators I think did talk with the Regional Director, or Acting Regional Director, Mr. Kirby, since then. Now whether there's anything set up between the negotiators, I don't know. But I'm not aware of any negotiations taking place at this point. It's the same line that has been taken for a number of years -- that there are serious and delicate negotiations, therefore they cannot jeopardize those negotiations by participating in any kind of a function such as this Commission. It's just a way of trying to not deal with the issue in public. Jacques Johnson: We were asking Mr. Fulton if his report could be the basis of renewed negotiations. I would like to ask you the same question, as one of the three parties, a question I'm sure the Commission would be happy to ask the two levels of government, if they might consider going back to that paper and building on that. What would be the Lubicons' view on this? Bernard Ominayak: We certainly had hoped that the federal government could take action after involving Mr. Fulton to do the inquiry and then upon producing his findings. They made sure Mr. Fulton was not involved any longer. And of course -- as a basis to start some serious negotiations we'd welcome that opportunity to start with the recommendations that Mr. Fulton had made in the past. We are somewhat a ways from that, but that's not to say the possibility isn't there, and we would welcome that opportunity. Sandy Day: A question arises about the Grimshaw Agreement that was made with Premier Getty. To your knowledge is that still agreed upon in principle by the Alberta government? And if so, does Mr. Getty stepping down affect that, jeopardize it? Bernard Ominayak: Again, I can't say for sure whether it's jeopardized or not. But the latest that we've heard, and also what the Premier has stated over and over again, is that the Grimshaw Accord stands. I would think that whoever should get in to replace him would have to maintain the same position. Now, even though the Grimshaw Accord is there, it has not benefitted our people in any way. Until the federal government has an agreement with the Lubicon Lake Nation, then that Accord, I don't imagine, will do much good, because the whole traditional territory is still in question. As long as we don't have a signed deal, then that whole traditional territory, our title to that whole traditional territory, is going to have to take precedence over all these lands. Sandy Day: I have another question related to our trip to Little Buffalo. We had the opportunity to come out there and the dust on the roads was just something that affected all of us. I made some phone calls looking into that. I guess I'd like to ask your opinion -- how far is it okay to keep pursuing it to find out if there's anything that can be done for dust control? Because I just feel where I live we wouldn't allow it to happen, have dust affect people's lives like that. One of the women spoke about having the laundry out and having it affect them and having to close windows at night. I'd like to just ask your opinion if it's okay to pursue that? Bernard Ominayak: We get more than dust with the logging trucks and the oil development. If at all possible, Sandy, if you can keep them off the roads and keep them out of our area, that would be our preference. No, we certainly don't have any problem. With all the traffic that does take place between our community and the town of Peace River and also to the east of us, it's funny they haven't paved that road. Apparently there were some plans to do that a few years ago but I guess that was one of those rainy days that the Premier had talked about and it was close to an election at that time. So I guess now we're back on the back burner. But I would think that maybe people other than the Lubicon people pushing that kind of idea would get better results. Michael Asch: I don't have a question so much, Bernard, as a brief comment. As I mentioned to you the last time I saw you, I was in Europe at the World Uranium hearings. I was in Austria. I was quite surprised, happily surprised, to have so many people come up to me and say that they knew about your situation. They wondered how you were doing. How people were doing. And they knew about this Commission. There certainly are a lot of warm feelings amongst Europeans for the struggle you are going through, I can report from my experience. Bernard Ominayak: Thank you, Michael. It's nice to know that there're other people outside of Canada who are concerned about what is happening to the Lubicon people. That's why it's always been very important for our people to hear and know that there are other people besides us who are aware of the kind of battle that we've gone through. I was glad to hear that they know of the Commission. Sometimes I get the feeling that the Commission feels that there's not much that they can do and that there's not much hope of encouraging the governments to try and do something, but I think there're a whole lot of people who are very much interested as to the kind of recommendations or what kind of report you may produce through this process. I can only say that I would like to encourage the Commission to continue and to continue pursuing the governments to make their side of the story known to you. Jacques Johnson: Thank you. In all fairness to the government, I was informed by my secretary at noon that Mr. Getty's office had sent a fax in this morning saying that he was unable to attend because he was out of the country. I just wanted to say that for the record. I'd like to thank you Bernard for answering our invitation to answer a few of our questions. You've done so to a very large extent on a couple of occasions before, in our first hearing here earlier this summer and also in August when we went to visit your people at Little Buffalo. Before closing the hearings today I just wanted to know if you wanted any last word? Bernard Ominayak: No. I would just like to thank you for the invitation. I'm here with some of our other members from the community. Fred is here. Maybe if you have any questions about the community and so on, the ladies are here. I think they appeared before you when you visited the community, so if you have any questions in regards to the community, maybe they would better respond to those kinds of questions if the interest is there on your part. With that I thank you. Jacques Johnson: Thank you very much. We will be adjourning at this time and convening again at 9:00 tomorrow morning with John Goddard...(end of tape)...