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Edmonton, AB T6J 1A4
403-436-5652
FAX: 403-437-0719
December 01, 1991
On November 28th Federal Lubicon negotiator Brian Malone issued the
attached press statement denying that the Federal Government is refusing to
negotiate a fair settlement of Lubicon land rights, reiterating Federal
Government claims that the UN Human Rights Committee supported the Federal
Government's so-called "take-it-or-leave-it" offer and claiming that he'd
"personally held six meetings with Band lawyer James O'Reilly to canvass
means to re-open negotiations". "On the last occasion", Malone claimed,
"(O'Reilly) advised that his instructions from Chief Ominayak were to the
effect that he was not to meet with (Malone) further". "If these
instructions have changed", Malone said, "I urge Mr. O'Reilly to contact me
immediately".
What actually happened is as follows:
The UN Human Rights Committee decision was announced on May 3, 1990.
At the time the UN Human Rights Committee decision was announced there'd
been no negotiations with the Federal Government since the tabling of the
"take-it-or-leave-it" offer in January of 1989. Negotiations with the
Province had been meandering non-productively since the previous August
following an agreement between Chief Ominayak and Premier Getty to
negotiate a draft settlement agreement which both the Lubicons and the
Province could support. Provincial negotiators had been advised that the
Lubicon negotiating team was unilaterally preparing a draft settlement
agreement to try and pin down specific areas of agreement and non-agreement
between the Province and the Lubicons. And both levels of Canadian
Government were responding to news that the Lubicons were working on a
detailed draft settlement agreement by proposing to talk instead about
draft "agreements-in-principle" -- clearly in an effort to try and push the
process backwards towards discussion of non-specific, non-productive
generalities.
On May 24, 1990, Malone phoned O'Reilly and asked for a meeting. O'Reilly
told Malone that Lubicon Chief Ominayak wasn't "too enthusiastic" about
one-on-one meetings, given the history of Federal representatives later
misrepresenting what occurred at such meetings, but that "it would be
alright if Malone stopped by".
Malone typically wasn't alone when he arrived at O'Reilly's office but was
accompanied by Federal Government bureaucrat Bob Coulter. Malone presented
O'Reilly with a draft "agreement-in-principle" which was basically a point
form summary of the Federal Government's "take-it-or-leave-it" offer. For
the next day and one-half O'Reilly discussed the Federal Government's draft
"agreement-in-principle" with Malone and Coulter, as well as possible means
of arbitrating areas of disagreement. Malone told O'Reilly that "the Feds
are now prepared to reconsider arbitration". (This meeting is presumably
the first of the "personally held meetings" with O'Reilly to which Malone
refers in his November 28th press release.)
The Lubicons tabled their draft settlement agreement with the Province on
June 1st. Provincial Government negotiators asked for a couple of weeks to
study the Lubicon draft settlement agreement before discussing it.
On June 19th Provincial Government representatives asked for another week
before discussing the Lubicon draft settlement agreement. "What's taking
so long", Provincial negotiators said, "is that we're trying to develop an
alternate draft settlement agreement".
Also on June 19th Malone phoned O'Reilly and asked for a copy of the
Lubicon draft settlement agreement so that the Feds could "participate in
development of a joint counter proposal (with the Province)". O'Reilly
told Malone that the Lubicons wanted to first try and identify areas of
agreement and disagreement with the Province -- as per the Chief's
agreement with the Premier.
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 working to
develop. There was no discussion of the Lubicon draft settlement
agreement, however, and no "alternate draft agreement" was ever produced by
Provincial negotiators.
Instead Provincial 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 once again support the kind of
independent three person tribunal originally proposed by Alberta Premier
Getty in March of 1988, consisting of one person selected by the Lubicons,
one person selected by the Government and a third person selected by the
first two.
Lubicon negotiators indicated willingness to consider any sincere
arbitration proposal but also told Provincial negotiators that discussion
of an arbitration proposal was a step backward when there was a detailed
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
negotiators pointed out, would also be more in line with the agreement
between the Chief and the Premier to negotiate a draft settlement agreement
which both the Province and the Lubicons could support.
Moreover, Lubicon negotiators pointed out, the Federal Government would
have to be involved in any discussion of arbitration proposals and Federal
representatives had in the past only used discussion of arbitration
proposals 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 reminded Provincial negotiators
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 whose names had originally
been put forward by Federal officials. 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 a mutually acceptable 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 time multi-billion
dollar 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; would have to
be binding; would have to be final and couldn't be subject to deliberately
endless, 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 unextinguished aboriginal title to some 4,000
square miles of traditional Lubicon land, as the Lubicon people maintain,
or only have outstanding treaty rights over some 100 square miles of
reserve land as both levels of Canadian Government maintain.
Provincial negotiators asked for another couple of weeks to discuss the
possibility of an independent three person tribunal with Provincial Cabinet
and with representatives of the Federal Government.
On July 13th Provincial negotiator John McCarthy phoned O'Reilly and told
O'Reilly that Malone had "rejected the whole process of arbitration".
On August 2nd McCarthy phoned O'Reilly again, claiming that he'd "earlier
got (his) wires crossed". He said that "the Feds are prepared to consider
arbitration". However, he said, "instead of a three person tribunal, the
Feds want only one, mutually agreed mediator". Also, he said, "the Feds
will only agree to arbitration if the Province is involved and the Province
doesn't want to be involved in arbitration".
On September 4th McCarthy phoned O'Reilly a third time. This time McCarthy
told 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".
McCarthy told O'Reilly that he'd therefore contacted Malone and proposed a
meeting of the three negotiating teams to discuss suitable terms of
reference. He said that "Malone countered with a meeting of the legal
people only". He asked if O'Reilly could meet with "the legal people only"
on September 10th.
O'Reilly told McCarthy that he'd have to consult with the Lubicon people
about the proposed meeting and get back to McCarthy. As earlier indicated,
the Lubicon people don't like limiting participation in meetings especially
with representatives of the Canadian Federal Government because Federal
Government representatives have in the past later deliberately
misrepresented what transpired at those meetings.
O'Reilly then checked with Lubicon representatives who flatly opposed a
meeting of "the legal people only". O'Reilly was however unable to get
back to McCarthy about the proposed meeting and consequently assumed that
there'd be no meeting.
On September 10th a half-a-dozen members of the Federal and Provincial
negotiating teams -- including both lawyers and non-lawyers -- appeared at
O'Reilly's office for the proposed meeting. They appeared at O'Reilly's
office without benefit of the meeting being confirmed because they had
interests to pursue and calculated rightly that O'Reilly would not refuse
to meet them if they just appeared at his office. Demanding that
participation in the meeting be limited and then ignoring his own meeting
preconditions is standard practice for Malone, who regularly uses the
tactic to try and load the meeting in his favour and counts on people
essentially not doing anything about it. (This meeting likely accounts for
the second of the so-called "personally held meetings" with O'Reilly to
which Malone refers in his November 28th press release.)
The upshot of the September 10th meeting was that Federal Justice
Department lawyer Ivan Whitehall told O'Reilly that he was "prepared to
recommend arbitration" but only in the form of "one mutually agreed
person", and Provincial negotiator McCarthy told O'Reilly that "the
Province is prepared to put into the hands of a third person whether the
(take-it-or-leave-it) offer is fair or not". O'Reilly responded by asking
Federal and Provincial Government representatives to put their arbitration
proposals in writing.
On September 21st McCarthy sent O'Reilly a confidential "memorandum of
intent" essentially proposing that the Lubicons accept unacceptable Federal
and Provincial proposals and sign releases on everything but compensation
which would then be determined by a single, mutually agreed arbitrator
under the terms of the Commercial Arbitration Act. The McCarthy proposal
was thus in fact little different than the Federal Government's so-called
"take-it-or-leave-it" offer excepting only that compensation would be
determined by a single, mutually agreed arbitrator under the Commercial
Arbitration Act instead of the Canadian Courts.
Describing the McCarthy proposal as "quite different" than he'd expected
pursuant to the September 10th meeting, O'Reilly referred the McCarthy
proposal to Chief Ominayak. Chief Ominayak asked O'Reilly to have McCarthy
phone him directly for reaction to McCarthy's so-called arbitration
proposal.
On October 10th O'Reilly asked McCarthy to phone Chief Ominayak directly
for reaction to McCarthy's so-called "arbitration proposal". McCarthy
phoned Chief Ominayak. Chief Ominayak asked McCarthy for a reaction to the
Lubicon draft settlement agreement.
McCarthy told Chief Ominayak that "the parties are too far apart on the
numbers and consequently have to go to arbitration". Chief Ominayak told
McCarthy there'd been on-again off-again talk about arbitration for two
years which had gone nowhere and was going nowhere. The Chief repeated the
Lubicon request for a detailed reaction to the Lubicon draft settlement
agreement so that it would at least be possible to ascertain specific areas
of agreement and disagreement.
McCarthy agreed to discuss the Lubicon draft settlement agreement with
Malone and get back to the Chief with a detailed counter offer. To date no
detailed counter offer has been received.
On October 22nd Malone "dropped by" O'Reilly's Montreal office and told
O'Reilly that "the problem was the Lubicon position on aboriginal rights".
Malone indicated that the Federal Government wasn't prepared to submit the
key issue of the nature of Lubicon land rights to an independent
arbitrator. (This informal visit by Malone to O'Reilly's office is
presumably the third of the "personally held meetings" to which Malone
refers in his November 28th press release.)
At the end of October Daishowa-related companies started clear-cutting
unceded Lubicon territory. The Lubicons reacted by announcing that
resource exploitation companies operating in the unceded Lubicon territory
without Lubicon agreement would "be subject to removal at any time without
further notice". In addition Chief Ominayak instructed O'Reilly to advise
McCarthy that there'd be no further discussions unless Provincially-
directed logging activity was stopped.
O'Reilly met with the so-called legal committee one last time in Calgary on
November 8, 1990. Malone advised O'Reilly that the Feds were only prepared
to have an independent arbitrator consider compensation for "breach of
fiduciary responsibility under Treaty 8 related to the delay in setting
aside reserve lands in 1940". What this would of course mean is that the
Lubicon people would have to cede the aboriginal land rights upon which the
bulk of their right to compensation depends BEFORE the question of
compensation owing could even be considered. As per Chief Ominayak's
instructions, O'Reilly told McCarthy that there'd be no further discussions
until logging activity was stopped.
This last or fourth meeting on November 8th is likely the meeting during
which Malone claims in his November 28th press release that O'Reilly
advised Malone that "his instructions from Chief Ominayak were to the
effect that he was not to meet with (Malone) further". How these four
above indicated sessions variously involving Malone can be described as
Malone "personally (holding) six meetings with Lubicon lawyer James
O'Reilly to canvas means to re-open negotiations" isn't clear. Presumably
Malone is exercising a little creative licence and perhaps counting the
morning and afternoon sessions in an all day meeting as two meetings.
* * * * *
STATEMENT BY FEDERAL LUBICON LAKE LAND CLAIM NEGOTIATOR BRIAN MALONE, Q.C.
CALGARY (November 28, 1991) -- "As Canada's negotiator on the Lubicon Lake
Indian land claim, I want to correct a statement made by Lubicon Lake Chief
Ominayak on November 28, 1991 to the effect that the federal government is
not prepared to negotiate a fair settlement. The fact is that, following
the breakdown of talks in January 1989, the United Nations Human Rights
Committee observed that Canada had made an offer to the Band "to rectify
the situation by a remedy that the Committee deems appropriate". That
remedy included land, reserve infrastructure and socio-economic funds for
450 people.
"Since that decision, I have personally held six meetings with Band lawyer
James O'Reilly to canvas means to re-open negotiations. On the last
occasion I was advised that his instructions from Chief Ominayak were to
the effect that he was not to meet with me further. If these instructions
have changed, I urge Mr. O'Reilly to contact me immediately."
-30-
Ref.: Bob Coulter
DIAND
(819) 994-1241