I was in Edmonton last month and caught bits of the last two days
of the ERCB hearings on the UNOCAL sour gas plant permit being
contested by the Lubicon. The decision of the board is expected
at the end of February, I've heard. Feel free to reprint or use
this article as you will, with the proviso that it be in the
service of truth, justice and all that stuff. I wouldn't mind
being given credit, either.
Alan Dixon
adixon@web.apc.org
__________________
The first principle of nonviolent action is noncooperation with
anything humiliating. -- Gandhi
Power never concedes anything without a demand. It never has and
it never will. -- Frederick Douglas
It is safer to be feared than loved. -- Macchiavelli
Dec 1, 1994. The Alberta ERCB (Energy Resource Conservation
Board) is holding public hearings involving the Lubicon Lake Cree
and UNOCAL Canada as the main participants. The Lubicon are
contesting a permit the ERCB has granted to UNOCAL for
"upgrading" a natural gas plant located near the Lubicon reserve
in northern Alberta. The hearings are taking place in the
Continuing Education Building of the Northern Alberta Institute
of Technology, a short bus ride north from downtown Edmonton. A
cold snap has just arrived and the temperature is -20, -30
overnight.
The Positions
I've arrived after about 10 days of hearings - hearings that were
expected to take a week. It's been long and nasty, I gather from
the Lubicon supporters. From their point of view, the situation
is pretty clear. About a year ago the Lubicon were approached by
UNOCAL representatives, inquiring about the possibility of
upgrading their existing natural gas plant that lies just upwind
of the reserve. This is a "sweet" gas plant - basically just a
pumping station.
Northern Alberta contains a great deal of the world's supply of
natural gas. Some of it is in the form of "sweet" gas, which can
be used with little or no processing, but most of it is "sour"
gas, containing up to 20% sulfur, which must be removed. The
Lubicon lands are in the middle of the rich oil fields north of
Slave Lake, between the Peace and Athabasca rivers, which include
both sweet and sour reserves. Until now, UNOCAL has left its sour
gas wells "capped", saving them until they are more economical.
The processing is expensive, and until recently, the price of
sulfur has been low. Recently, however, sulfur prices have gone
up, creating more incentive to tap these reserves.
Last November in these initial inquiries, according to the
Lubicon, UNOCAL made no mention about sour gas. Last June
however, when construction began, it became evident that it was
not just an "upgrade", but a new plant built over the existing
one, that would be processing sour gas from the surrounding
wells. The processing releases some of the sulfur into the air in
the form of sulfur dioxide, the familiar smell of rotten eggs,
and poisonous in sufficient doses.
According to UNOCAL, emissions will be well below official
standards for such emissions. As part of the hearings, the
Lubicon and supporters have challenged these calculations, and
claim that the various models used to arrive at these figures are
both frequently wrong, and at best accurate within a factor of
two. And in addition, that these figures can only calculate
average emissions over hours, and that the actual amounts
experienced downwind at any given 5 minute period may be much
higher - and this is all that is needed to cause damage to the
health of the plants and animals that the Lubicon depend on, not
to mention the health of the Lubicon themselves.
Quite apart from these differences of opinion, the main point of
contention is whether the Lubicon actually consented to the
plant, or at least, whether UNOCAL believed that they had.
According to UNOCAL, they went beyond their lawful requirements
in consulting with the Lubicon, and on the basis of what UNOCAL
(perhaps mistakenly) believed was Lubicon consent for the plant,
they have now invested a large amount of money. According to the
Lubicon, UNOCAL is lying - UNOCAL never mentioned "sour" gas when
they originally approached the band, and when it became apparent
to the Lubicon last June that it was in fact a sour gas plant,
UNOCAL accelerated the building process in order to present a
"fait accompli" to the ERCB. The ERCB had granted the original
permit to UNOCAL on the basis of statements by UNOCAL that they
had already received permission from the Lubicon.
Some Relevant History
The fact that UNOCAL felt any need to consult with the Lubicon at
all is more a result of the Lubicon's continual struggle over the
past 15 years or so to retain some measure of control and
autonomy over their lives and land, than any sense of fair play
from UNOCAL. For example, there was no consultation when
exploration and exploitation in the area first began in the 70s,
and then boomed after the increase in oil prices in 79/80. Even
as recently as 2 years ago, the Alberta government sold logging
rights to a large portion of northern Alberta to Daishowa without
any consultation or recognition of Lubicon rights.
Oil company respect for Lubicon rights probably dates from mid-
1985, when UNOCAL (then called Union Oil) had made plans to build
a pipeline through the Lubicon reserve lands. They backed down
only after demonstrations in front of their head office in
Calgary, media attention, and Lubicon preparations to block roads
to the pipeline construction. The following year, the Lubicon
unilaterally declared that all new oil company activity in
traditional Lubicon territory would need the band's approval. The
ERCB supported the Lubicon by ordering all companies applying for
new work in Lubicon territory to check with the band first, and
the Lubicon has routinely approved all projects that do not
interfere with grave sites or trappers cabins. The result was a
new relationship of trust between the oil companies and the
Lubicon.
The Proceedings
The room is fairly large, and only about half full. There are
about 6 ERCB members at the front of the room (all men), with a
woman taking a transcription. Mr. Frank Mink is the chair. There
are about 40 other people in the room, with the UNOCAL people at
the front right behind their lawyer Mr. O'Farrell and the Lubicon
and supporters on the left behind their lawyer Mr. Schacter and
across the back.
The morning opens at about 9:12 am, with Lubicon intervenors from
the group "Friends of the North", casting doubt on the emission
calculations that UNOCAL had earlier presented. Mr. O'Farrell,
the UNOCAL lawyer, asks about the education of the intervenors
and various technical questions about the models used in the
calculations. My favourite moment is when Mitch Bronough, on
behalf of the Lubicon, quotes an Alberta government publication
about one of the models used by UNOCAL: "Model should not be used
where realism is required".
After this, there is a question about the intervention requested
by a Mr. Hoyda, president of a small family oil business. He
wishes to present evidence on the movability of the UNOCAL plant
- a key issue, since UNOCAL had earlier stressed that the plant
could not be moved. There is some confusion about whether he
wants to testify as to the logistics of moving the physical
structure of the plant, or about the viability of alternate
locations for the plant, which never gets clearly resolved for
the ERCB.
The UNOCAL lawyer is vehemently opposed to the intervention. He
claims that Mr. Hoyda knows the rules and should have presented
his planned intervention at the appropriate time - as it is
UNOCAL would not have time to prepare a response, and further,
that if Mr. Hoyda is to be heard and the issue of alternate
locations brought into discussion, then all the other oil
companies in the area need to be heard, since they are affected.
The implication is that Mr. Hoyda has knowingly planned his last-
minute intervention in a self-interested way to persuade the ERCB
to move the plant to a location more favourable to his own
company. For fairness therefore, all the other oil companies
should be allowed to present their views on the question, a
process that will tie up the hearings for weeks more.
The Board recesses, and after a while postpones the decision till
after lunch. I've got another commitment for the afternoon, but
I hear later that they choose not to hear Mr. Hoyda.
Friday. Everyone seems keen to wrap up the hearings today and go
home. The morning begins with a wrap up of some UNOCAL witnesses,
a biologist challenging Lubicon claims about moose-hunting, and
Fritz Perschon, president of UNOCAL Canada, who I presume was
present for the entire hearings. Then the final arguments begin,
with Mr. O'Farrell for the UNOCAL side.
The World According to UNOCAL
The thrust of Mr. O'Farrell's argument is that the Lubicon Chief
Bernard Ominiyak is "sophisticated" and aware that the ERCB
decision could only be overturned under "extraordinary
circumstances", and that is why he has chosen to claim that
UNOCAL actively misrepresented their plans to the Lubicon,
instead of it being a mistake or misunderstanding. He represents
UNOCAL as having more than complied by the guidelines, and that
the responsibility for the situation is therefore with the Board.
In case this is not already clear, he reiterates the effects of a
Board decision in favour of the Lubicon: loss of millions of
dollars of UNOCAL investment, adversely affecting investor
confidence, loss of jobs and economic activity in the area, and
loss of millions in provincial royalties. In reference to the
board's environmental conservation role, he insists that the
board should not disallow the permit because of the resulting
"waste" of resources.
He also insists that the plant has only positive economic and
social effects, and no negative ones - for the Lubicon as well as
the rest of the province. The implication is that UNOCAL knows
better than the Lubicon what's good for them, although I'm
thinking that a recent history of the Lubicon community since the
beginning of oil company activity in the area would perhaps
clarify this issue.
Mr. O'Farrell also makes reference to a recent recommendation of
an advisory committee, that royalties and taxes on sour gas
should go to the communities affected. I presume that this is a
vague promise that maybe there will be some compensation to the
Lubicon in the future, although it occurs to me that the
implication of the recommendation is that there's a negative side
to the processing after all.
And finally, after stating earlier that "the only basis for
refusal" of the permit is environmental reasons, he concludes his
presentation with the real bottom line: UNOCAL has made a
considerable investment and expects to generate revenues with the
plant.
Lubicon Defense One: The Legal Incisor
The Lubicon lawyer follows next. Mr. Schacter concentrates his
arguments on the question of whether the Lubicon had been
adequately informed of the nature of the proposed plant. His
thesis is that UNOCAL knew that the Lubicon would not knowingly
have accepted the plant, and therefore deliberately obscured the
fact that it was to be a sour gas plant. To support this, he
cites testimony and letters to try and reconstruct what happened
at the various meetings between UNOCAL and the Lubicon,
concluding that the Lubicon never gave informed consent to the
plant and that UNOCAL's behaviour was either reckless or
malicious in claiming to the ERCB that consent had been given.
For both these reasons, the permit should be revoked, and the
plant should not continue functioning until a decision is
reached.
Lubicon Defense Two: The Big Picture
Next comes Dr. Joan Ryan, an anthropologist from Calgary who has
been working with and studying the Lubicon for many years. In her
concluding comments, she makes two main points. First of all, she
observes that the "quasi-legal" process of the hearings have not
been useful for obtaining information - the adversarial set-up
does not lead to a fair picture because of the power and money
imbalance between the interested parties. She is particularly
unhappy with the treatment of Chief Ominiyak in cross-
examination, where he was repeatedly asked the same question over
and over. In addition to being annoying and pointless, it was
also extremely insulting - it implied without actually saying so
that the Chief was lying. I also heard that he had been asked
about his mother - presumably to cast doubt on his Indian Status
credentials.
The second point she makes is that "the core of the decision is
the public interest", and that this interest has not been clearly
defined. UNOCAL's unstated assumption about public interest is
that their right to make money is paramount over the survival of
the Lubicon Cree. Dr. Ryan thinks that this may not be the belief
of the rest of Albertans. She also thinks that this is the key
question here, despite the Board's earlier statement that money
vs. lives is not the basis of their decision.
UNOCAL has submitted as evidence a document prepared by a Mr.
Thiessen, who at some point worked for the province contesting
the Lubicon land claims. This document, I understand, presents
the Alberta government's position that the Lubicon are in no
danger of extinction as a people and are not a real native group
anyway.
The fact that this document presents old, selected and often
clearly false statements as a "summary" of the situation is
"frightening in its implication of the relationship between the
province and the oil and gas companies," according to Dr. Ryan.
Bluntly put, the province is supportive of UNOCAL in this case as
an ally in defeating the Lubicon land claims. In fact, if you
look around the world at the effect of oil and gas development on
indigenous people, you can see pretty clearly the genocide,
environmental destruction, and the cultural genocide.
A Native Perspective
Donna McPhee is the next intervenor, she's a native from Calgary.
She's pretty angry - angry about the lies, about the treatment of
native people, about aboriginal rights not being recognized. She
concludes by saying that for her people, who have been so long
locked up in reserves, that "for us, resisting is winning".
Quakers, Christians, and Manufacturing Consent
Mitch Bronough, who has earlier testified about sulfur emission
models, now takes the stand in a completely different vein. He
begins by distributing a Far Side cartoon, showing a lifeboat
surrounded by circling shark fins. In the lifeboat is a man
defending himself with a paddle from a shark sitting at the
opposite end of the boat who's saying "OK. I'll go back and tell
my people that you're staying in the boat, but I warn you they're
not going to like it."
His presentation is long and I'm not sure I understand it all.
He wishes that UNOCAL subscribed to his Quaker belief in speaking
plainly, and he's disturbed about how Mr. O'Farrell, who he
considers a friend, is so intimidating in his cross-examination
of Bernard Ominiyak. He observes that this style was not used on
anyone wearing a suit. In a characteristic aside, he also admits
that Mr. O'Farrell was in fact more correct than he was on an
earlier point about the incidence of respiratory diseases.
I'm warming up to his style now, and he makes interesting
comments about Christianity, and comparing the current
proceedings to the Inquisition, and the extraction of confessions
through torture and drowning - i.e. a belief in the end that
cares little for the means. I rather like this way of naming
what's going on here. I'm thinking of another case, of the Innu
in Quebec and the Hydro-Quebec development of the Sainte-
Marguerite river - the illusion of consent to development
projects, manufactured by the process of narrowing the terms of
reference, and then pouring money at it until it breaks. He
quotes Mr. Perschon, UNOCAL-Canada president, "Anything is
feasible if you have enough money."
Mr. Bronough is in no hurry and after about three-quarters of an
hour we break for lunch. I've got afternoon commitments again, so
I miss part II, as well as the UNOCAL rebuttal, which I'm told
was very animated.
Conclusion
The hearings have ended, and it's now a couple of weeks later
that I'm writing this up. A decision is not expected for a
couple of months. If the permit to UNOCAL is affirmed, this might
have been the "last stand" of the Lubicon Cree, or it might not.
In preparing to write this article, I read a book called "Last
Stand of the Lubicon Cree" by John Goddard, from which I have
drawn my historical information and obvious sympathies. I
recommend it. Maybe the threat to the Lubicon and the evil
intentions of the government and corporations seems overstated at
times, but the more I learn about the history of aboriginal
peoples in North America, the more I realize how little I'm aware
of the destruction that has gone on, and continues today to these
peoples and the land they once thought they were sharing with the
Europeans and their descendants. Didn't the Europeans wipe out
the entire Beothuk people? What about the passenger pigeon, the
buffalo, and most of the prairie soil? The salmon in the rivers,
the whales in the St Lawrence, the lakes in Ontario that died
from acid rain, the trees in British Columbia, the Atlantic cod?
Look for our last remaining gifts of creation, and there you'll
probably find some native people defending it from a corporation
and their governments. I wonder when we'll begin to wake up to
this tragedy that we're living today?