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Transcript of Lubicon Settlement Commission of Review Public Hearing , November 02, 1992 Edmonton, Alberta
Commission Members Present
Jacques Johnson
Jennifer Klimek
Michael Asch
Sandy Day
Menno Wiebe
John MacMillan
Commission Members Absent
Regina Crowchild
Wilfred Barranoik
Theresa McBean
Don Aitken
Normand Boucher
Colleen McCrory
Lubicon Representatives Present
Chief Bernard Ominayak
Lubicon Community Members
Advisor Fred Lennarson
Others Present
The Hon. E. Davie Fulton
John Goddard
Jacques Johnson: I would like to call this meeting to order. I'm Jacques Johnson and I'm co-chair, along with Jennifer Klimek, for the Lubicon Settlement Commission of Review. I would like first of all to welcome Mr. Fulton and to thank him for taking the time to come and meet with us and to spend at least the whole day and perhaps more if need be to cover some of the work that he has done on behalf of the federal government to bring clarification into the process of negotiations for settlement of the Lubicon people. I would like also to welcome the public who are here today and also the media people. I would like you to feel at home. There's coffee and tea available for you. There's a woman's washroom over here and a men's washroom back there. I would like to introduce the Commissioners, or rather ask them to introduce themselves immediately.
Menno Wiebe: My name is Menno Wiebe. I represent the Aboriginal Rights Coalition which in turn represents nine of the national denominations across Canada formerly known as Project North. I'm here by appointment also of the Mennonite Central Committee of Canada. I serve in that capacity. We have connections in Lubicon Lake through some projects and communications directly with the Band on matters of land negotiation. I too welcome you here, Mr. Fulton, and I'm very glad that you're here.
Jacques Johnson: I'm an Oblate Priest, head of the religious order that's been working with Native people in Canada for over 140 years. We are presently also serving the area of the Lubicons in our ministry and have been since the last century.
Michael Asch: My name is Michael Asch. I'm a professor at the University of Alberta, teaching Anthropology and Native Studies and Law. I've worked for a number of years on issues relating to aboriginal rights, particularly in the North. I'm happy to welcome you here. Mr. Fulton.
Jennifer Klimek: My name is Jennifer Klimek. I'm a lawyer in the City of Edmonton. I too would like to welcome you here, Mr. Fulton.
Sandy Day: My name is Sandy Day. I live in High River, just south of Calgary. I run an environmental business and I've been involved in environmental issues for 7 years. Welcome.
John MacMillan: My name is John MacMillan. I was born and raised in Peace River. I've worked in the north all my life.
Jacques Johnson: I'd just like to say a word about our program. This morning we will conduct hearings until noon and then we'll resume again at 1:30 and go on until a reasonable hour -- 4:30-5:00 at the latest, I would imagine. We don't want to wear ourselves down.
Tomorrow at 9:00 we will welcome Mr. John Goddard, the author of the book "The Last Stand of the Lubicon". And at 1: 30 in the afternoon tomorrow we will welcome Mr. Bruce Koliger and Mr. John Krebes who represent two companies that the federal government and the Lubicons have agreed on to make an assessment of the costs that have been in great dispute for the last while and so they will make a presentation tomorrow afternoon at 1:30 of their findings.
Mr. Fulton has been a good public servant for a long time. He's had a very long and rich public career. It all started out with the war where he served for five years as a soldier. In 1945 he was elected as a Member of Parliament and has served as such until 1968. A total of 21 years, if you exclude 2 years that he was not serving during that period. He was Federal Justice Minister from 1957 to 1963. Twice he was a contender for the party leadership of the Conservative Party. He served as a Justice on the British Columbia Supreme Court for 8 years, from 1973 to 1981. He was in private practice for a few years. And then in 1986 he was named a Commissioner of the International Joint Commission. For 3 years. from 1989 to 1992, he was chair of that Commission, which monitors the water between Canada and the United States and has a lot to do with the environment, the water levels, and so on and so forth. We are very grateful for your appearance before our Commission, Mr. Fulton, and I'm sure you have a lot to share with us. I would like to invite you to perhaps make an opening statement if you would.
The Hon. E. Davie Fulton: Thank you, Mr. Chairman, Madam Chairman and members of the Commission. I very much appreciate your welcome this morning. I hope that I'll be able to do something that will clarify some of the issues and the problems that have impeded settlement so far. If I can make any contribution towards bringing about a settlement of the Lubicon claim this long-outstanding and absolutely uniquely terribly procrastinated settlement I shall be grateful indeed, grateful to you for giving me the opportunity.
You've asked me to make an opening statement. I'll be glad to do so. I haven't prepared a formal opening statement. But I think perhaps the best thing I could do would be to give an outline starting with the way in which I was commissioned. how we went about the job and how it concluded.
I was asked by the Hon. David Crombie in 1985 to conduct an inquiry into the claims of the Lubicon Indian Band. I think I had come to Mr. Crombie's attention as somebody interested in the affairs and the problems of aboriginal Canadians because when in private practice in the early 1970s I had the privilege of representing a group of British Columbia Indians and I made a submission on their behalf to the then Minister, the Hon. Jean Chretien. To my surprise and dismay, although we had made the submission personally and gone to Ottawa to do it, and left written copies -- at that time I did have a formal statement to make -- I never heard a word from the Minister nor did my clients. Not a word, for some years. When Mr. Crombie became Minister I thought I would let him know this concern about the absence of any reply or any action on the submission I'd made and in that way I suppose I came to his attention as a person having an interest in the problems of Native nations.
In any event, in 1985 Mr. Crombie asked me if I would be prepared to conduct an inquiry and I must say it came to me as a surprise -- I'd read something about it in the papers, but I had no knowledge of the details, of the problem at all. I went to Ottawa to meet Mr. Crombie at his request and he told me that it was an extremely complicated matter involving a number of legal actions in the courts ... and discussions pursued privately or outside the courts, and it was extremely complicated and he would be greatly obliged if I would conduct an inquiry to ascertain what were exactly the claims, to sort them out. What were the claims, what was the basis upon which the claims were rested -- not to pass an opinion upon but to find out on what basis the Indians, the Band made the claim, and also to ascertain the position of others who were involved with respect to those claims.
I agreed to undertake that task and after some consultation and preliminary notification of those concerned, I met with the Band and Mr. Lennarson who was then involved -- and still is, I believe -- and Mr. James O'Reilly, who was then acting as their legal representative. Also with the representatives of the government of Alberta, the Minister then responsible being the Hon. Milton Pahl. And of course with senior administrators in the federal Department of Indian Affairs. We worked it out that I would ascertain precisely what were the Band's claims, discuss then with the Band, then meet formally with the representatives of the two governments separately and find out what was their position with regard to the claims -- the Government of Canada and the Government of Alberta. And then meet with private interests affected, primarily the oil companies, the oil and gas development companies, plus a farming cooperative which was concerned, and anyone else who had interests that might be affected by the result of the outcome of the claims.
In the course of those discussions it was agreed that while my original mission had been to sort out the claims and make a report on that basis, that the opportunity should be taken. because it appeared to be somewhat in the cards at that time, to see the extent to which at any rate I could bring about a reconciliation of the different positions or the conflicting positions. That was agreed as the process that I would follow. And it was also agreed that I would start with the Band's discussion paper that had been submitted to Mr. Crombie sometime before, outlining their claims. I would take that as a starting point for the claims. The process involved, as I say, the individual meetings first. I would then prepare a discussion paper outlining the claims, the position of each of the parties and exploring the possibilities of reconciliation for settlement. I would then meet with representatives of all parties with that discussion paper before us and see where we could get, how far we could get towards reducing the differences and coming up with some possible agreement.
Then it proceeded accordingly. I held the necessary meetings and prepared a discussion paper which I think you have, some members of the Commission at any rate, which was supposed to serve as the basis for that final meeting, if you like, with the representatives of the parties. To my amazement and disappointment, although the discussions had proceeded amicably I thought, and constructively, the Alberta Minister -- Mr. Pahl -- took the position that he wasn't going to go any further with these inquiries, that it was a waste of time, that I had no authority in the matter, and that Alberta was not going to take any further part. After discussion with the Band and with Mr. Crombie, it was agreed that if Alberta would not take any part -- Alberta being so vitally affected and a concerned party -- there was really not any point in continuing my inquiry. That was where the matter was ended then. As far as I was concerned, I had delivered my discussion paper -- and incidentally, the question has frequently been asked why has that paper not been made public. Why can't you produce it? The paper is not my property. I was commissioned by the Federal Minister to make an inquiry and took the agreed course. I submitted my discussion paper. It is the property of the parties with whose agreement it was that I prepared that paper. I can't make it available but I understand you have it and I think it is fairly widely known to the public now. I will be referring to it, I expect, in the course of the proceedings here today.
So that's the brief outline of the origin and course of my participation in the matter to-date. I should just add perhaps that after the discussion paper was delivered, and although I did not take any further official part as I was still in private practice for a year or so afterwards. I was concerned, was in touch with the Lubicon Band and did what I could to offer them advice as to how matters might proceed. They were very interested in the possibility of mediation and asked me if I would serve as mediator. I said yes. At that time, I would be prepared to do or assist in any way that I could. The discussion paper was delivered in early 1986. In the fall of 1986 or mid-summer I was appointed to the Canadian section of the International Joint Commission which is not a civil service job, but a public service position and I felt I couldn't take any further part, any further official part in the Lubicon matter. That situation continued until September of this year when my second term with the Commission expired so I now am a free agent and am very pleased indeed to come and say what I can and do what I can to help in the process of your inquiry. I trust that gives you the picture.
Jacques Johnson: Thank you very much. It does indeed. Before we move into the meat of your report, I'd like to check out with the Commissioners if any of them would like to ask you further questions clarifying in certain senses your mandate, terms of reference or whatever.
I would like to ask you an opening question. The other Commissioners will feel free to pursue their questions after I raise this first one. What major topics or issues or claims were you able to identify when you met with the Lubicons and then with the two levels of government?
Davie Fulton: There were, as I recall, eight major areas of claim. They are outlined in the discussion paper and the structure was based on the paper submitted by the Band to Mr. Crombie which he showed me and asked me to sort out to find out what the claims are. As the discussion progressed. they resolved themselves into eight major areas.
The first is the entitlement to a reserve. They were promised a reserve back in 1940 and still haven't got it. What is to be the size and the basis upon which that size is to be determined and to some extent the exact location -- these were the issues in the first head of claim.
Secondly, sub-surface rights with reserve lands. Do they in fact have any entitlement to oil and gas rights and/or revenues from the reserve area?
Thirdly, and very largely to the Band's concern, was the matter of wildlife management and environmental protection programs, because one of the facts of their life was that although they were without a reserve or any other source of income for sustenance, they had been deprived of and had lost their traditional source of livelihood derived from trapping and hunting. Because of the oil and gas development most of the wildlife had left their traditional area, virtually left, and they had virtually no income coming from that. So the question of wildlife management and environmental protection was very large in their minds.
Next, employment opportunities and job creation. Here was a tremendous activity going on, particularly in the field of oil and gas development and they had virtually no employment nor opportunity for employment from it. Yet they had lost their livelihood, their means of livelihood from their traditional hunting and fishing and trapping activities. So the question is employment opportunities and job creation.
Then the question of compensation. Ever since the oil and gas development began in about 1978-79, as I recall, increasingly their livelihood had diminished. They had suffered increasing loss. They had no, or virtually no compensation therefore. So compensation generally, and then sub-divided into compensation for past loss with respect to lands claimed as a reserve. They had no revenues from that, although oil and gas development had taken place on that reserve area. Secondly, compensation with respect to lands claimed as their traditional area, traditional hunting and trapping area. Oil and gas revenues have been coming from that and they have had no share from it. Should they have any compensation (a) with respect to the loss they've suffered and, (b) from the revenues which they have not shared?
Next, compensation for future losses because they didn't know when there was going to be a settlement and these losses would presumably continue. That was a question.
Then they made a claim for compensation for trespass, waste, and destruction of their culture and lifestyle -- a somewhat difficult compensation claim. But they said in effect, "Here, without our consent" -- they claim that aboriginal title still existed in this province -- "Without our consent, you have come on our area. You have not only inflicted this measurable loss" -- which we have discussed so far and which I just mentioned -- "but you've also affronted us, you've ruined our lifestyle, you've trespassed on and damaged our way of life and our culture." So they claim some general compensation on that basis.
In addition they claim compensation for their costs to date of the litigation and all the other efforts that they've made. They've consulted with the lawyers and other experts and experts to advise them as to the nature and the basis of their claim and they had to borrow money extensively from the bank to pay their bills. Interest was mounting, so they wanted compensation for their costs to date.
Then with regard to the future, they had a claim for catch-up benefits -- sorry, development and social benefit programs. They'd been promised a reserve at that time 50 years ago. They hadn't been settled on a reserve but they knew there would be a tremendous job in moving from where they were onto the reserve, getting the reserve set up and all those things which they had not had. They wanted to have a settlement made and then the costs of getting that settlement on the reserve met and met adequately. Development and Social Benefit programs, in general and with respect to education.
And finally they claimed that they should have rights to self-government. including the right to determine who was a member or should be a member of the Band. That's a very controversial question because of the tremendous differences between the Band and particularly the government of Alberta and to some extent the government of Canada as to the size of the band, the number of members. This was of vital importance because under the treaty under which they were now claiming their entitlement to a reserve, the size of the reserve depends on the number of members in the band, the formula for determining. So you see how important it is to the Band to have some say in determining who are their members and the number of members.
Those are the 8 heads of claims that we discussed. I discussed with the Band and with the governments... (change tapes) ...
Jacques Johnson: Let's tackle the first issue here -- the first claim -- which is the reserve. From our knowledge it seems that there has been an accord, an agreement, which is acceptable to the Lubicons and also to the two levels of government. My understanding is that they've received acknowledgement for 95 square miles of land, all with sub-surface rights except for 16 square miles -- 79 square miles with sub-surface rights. And this seems to be acceptable to them. In regards to this issue of land, in the last federal offer that the Lubicons rejected on August 6th I believe, which claimed to be worth $73 million -- $10.5 million was ascribed to the value of those 95 square miles as part of the package. What is your reaction to this new introduction on the part of the federal government to give a value to the land and be part of the total value of the settlement package? What would be your reaction to that?
Davie Fulton: Well, personally I'm very pleased indeed that agreement has been arrived at as to the size and location of the reserve. During the time of my discussions, the location of the reserve was pretty well agreed upon, at the west end of Lubicon Lake and that any additional land would extend around the south and towards the east. But the size was only partially settled, and Alberta in particular at that time was taking a very intransigent position that only 127 members of the Band should be counted, 127 and no more, because that was the figure agreed upon way back in 1940 when the promise was first made. Indeed they said if more was claimed, Alberta would indeed question the 127. They said that they could prove that the Band wasn't as large as that. So this was a very vexed question. It so happened -- as I observed when informed afterwards -- that following the resignation of Mr. Pahl as Minister and Mr. Getty's succession to Mr. Lougheed as Premier of Alberta, the position of the government of Alberta changed fundamentally on that and some other questions I believe with regards to the Lubicon claim. And Mr. Getty met with the Chief -- I was advised of these things -- and indicated that there wouldn't be much difficulty in getting agreement on the size of the reserve based upon Band membership of something in the order of 500, I believe. And that I gather has now been agreed. So there is no more problem, as I understand it, with regard to the size of the membership of the Band which would form the basis of the claim, or area that is, and the location of the reserve and the size thereof. I had suggested -- it appeared to me that there was going to be a larger entitlement to a reserve in 1986 than had been the case in 1940 -- that the federal government should consider buying the extra land from Alberta over and above what was agreed in 1940 and I think that was something that would have been considered. I don't know if the federal government has offered that to Alberta or not. If they do then of course there will be some cost to the federal government. But again. coming to the question as to whether that amount -- $10 million as the value of the reserve land should be included as if it were part of an overall settlement that they were offering -- it seems that hardly follows, because back in 1940 the Band was promised a reserve as treaty Indians -- or that they will be -- treaty Indians ... when this is all settled and agreed. Then they will of course be entitled to a reserve. So it seems to me, that claim. if you like, that feature, is a special part of this whole settlement and it's not quite logical to say, "Look, we're offering you a settlement of X million or hundred million dollars of which a substantial portion is the reserve." Because that's not part of the settlement. The area has to be settled and the location, but not the entitlement. So I essentially object to that approach. It would be my recommendation...
Michael Asch: I want to go over with you the process again by which you were put into the position that you found yourself in and exactly what it was that you were expected to do. And then I want to address -- because no one here knows except those who have managed to read the document by hook or crook -- some of the things that you concluded. So it's not just a single question. This is the kind of thing that I'm trying to do.
So I understand that you were invited particularly by the Hon. Mr. Crombie, but with the acceptance of and invitation I presume by the Government of Alberta and the Lubicon Band to do an examination as a neutral party. as a party that would not have a vested interest in any settlement?
Davie Fulton: That's correct, yes.
Michael Asch: What kind of discussions did you go into with the parties, what kind of time, what kind of involvement did you have in order to try to gain some knowledge of the situation?
Davie Fulton: I met with them separately. I met with the Band first, and then I think the government of Alberta and then representatives of the government of Canada, in order to, as I said, to endeavour to arrive at an understanding of what were the Band's claims and the basis upon which they rested each claim. Then I would meet with the government of Alberta and outline to them what I had heard about the Band's claims and asked them what their position was. Whether they agreed or objected and on what basis they rested their rejection if any -- sorry, I should mention first I had met with them to discuss the process, and it was agreed that this would be the process, then I carried out the process of separate meetings with each of them. It was agreed also that in the course of all this process I would endeavour to suggest areas of agreement or possible compromise and settlement. So I would explore those and prepare a discussion paper on that basis, which is the discussion paper I presented. So that was the process I followed. Then, as I said, I met with the Band and discussed in detail what their claims were, what their position was. I met with Alberta and discussed in detail and found out what their position was and similarly with the government of Canada, on each one of the claims, these 8 claims that I've outlined. And that was the basis of my discussion paper.
The purpose of the paper at that time was not only to establish and clarify the claims, what were the claims and the positions of the parties, but also to suggest areas of agreement -- isolate and identify areas of agreement and suggest areas of compromise or possible settlement where there was no agreement.
Michael Asch: So that part of your mandate was indeed to provide input into trying to resolve the question. not just to fact-find and state where the parties were at. but to provide...
Davie Fulton: What could be sensibly based on what I'd heard. But not to suggest my own opinion or findings, not to make findings. That was not my function or mandate at any time. It was to explore possibilities of settlement.
Michael Asch: And the process that you went through, this encounter, it necessitated a number of meetings with these people at certain times?
Davie Fulton: Yes.
Michael Asch: Okay. I'm going to use the phrase 'what you found'....not in legal terms -- but what you found out, I suppose would be a way of putting it, because it would be very helpful to us -- although we've read the document -- to get some idea at that particular moment, which is, as far as I can see, the last time -- in fact the only time -- that we've had a party that's been agreed upon by all sides to go and look at this situation. That's an important snapshot of a particular moment to see where the various parties were at so that we might ourselves see, looking in the last 6 or 7 years, what changes have been made and where they're going now. If you wouldn't mind spending a few minutes going over what you saw in terms of the areas of agreement and disagreement and some avenues that you sought towards a solution if that's not too convoluted a question?
Davie Fulton: The discussion paper's a fair length -- I think it's 80 some pages.
Michael Asch: I realize that.
Davie Fulton: But I'll do my best and do my best to keep it brief also, reasonably brief.
On the reserve entitlement, I think that we discussed that and it appears now that that is no longer a problem in terms of the size of the reserve and the location and the fact that most of it carries sub-surface, mineral rights as well.
With respect to the wildlife management and protection programs, as the discussion paper makes clear, I felt very optimistic that there was going to be an agreement forthcoming there because while details were not agreed, it was generally recognized that the Band was dependent, and might be for some years, on income, livelihood, from wildlife; and that therefore the parties should explore the possibility of measures to preserve and/or restore the wildlife population and protect it as such. Indeed there was agreement in one area; that it might not be possible to reintroduce the moose because you can't move them around so readily, but there is a form of animal, an elk type of animal that might be introduced to take the place of the moose. Moose hides and meat had been a very important part of the livelihood, the living of the Band. And there was agreement that those measures, under the aegis of the government of Alberta. for the restoration and protection of the wildlife should be taken in consultation with the oil and gas industries and others who were concerned. That was about as far as actual agreement went. That those things should be discussed. One of the unresolved areas, of course, was where priority should be given to those conflicts -- to development or to protection of wildlife. I took the liberty in suggesting in my paper that wildlife should have the priority where there was an irreconcilable conflict, not just because of the fact of whatever right the Indians in the legal or technical sense had, but because of the nature of the environment itself. Usually one can proceed with development along certain lines, even if you limit development by not going into a certain area. You can get around the difficulties. But if you destroy the wildlife, then it's irreversible. And we're just coming to realize that surely in our environmental studies; that we cannot go on without any regard to the consequences of destroying our environment. So it seems to me that there is an argument that, where there's an irreconcilable conflict, wildlife should have priority and I made that suggestion. but there was no agreement on it.
With regard to employment opportunities and job training, I was glad to find that there was a very large measure of agreement, particularly with the oil and gas companies concerned, that in principle they should provide priority to Band members in terms of employment, if that's feasible, and indeed job training programs could be provided and would be provided by them. They were willing to do that, to train members of the Band so that they might qualify for employment. To an extent the livelihood of Band members had been ruined on the one hand by the activities of these companies, and the companies recognized that they had an obligation which they were prepared to accept that they should make an alternative means of livelihood available to these people. There was agreement there. One of the difficulties was the Alberta statute against discrimination in employment -- there was a problem with that statute if the oil companies gave preference to employment of the Indians. I believe there's a provision in that Act that the government can prescribe areas where it doesn't apply. So the way it was left in my discussion paper was that there was agreement in principle with the details still to be worked out.
Next was the question of compensation, but of course there was very little agreement on that. I think there was general acceptance of the claim with respect to compensation for loss of revenue from the reserve area. They had been promised a reserve in 1940. Had they been given it, then the title to the reserve, the technical, legal title would be vested in the government of Canada and held in trust for the Indians, so any revenues from oil and gas would be also held in trust for the Indians. And royalties and so on would have been for the Band. But they didn't have the reserve, not withstanding that 50 years had gone by, and development had gone on for 20 years or so -- 15 years probably -- without a cent coming to the Band. So there was general agreement on that head of compensation.
In the loss of treaty benefits and programs and services, the government of Canada seemed generally to accept in principle that they were responsible for providing those treaty benefits and programs and services that the Indians would have received had the reserve been set up within a reasonable time after the promise was made. The amount was in dispute on the basis of settlement, but not the principle as I recall.
Now with respect to the land claim of the traditional area, a much more difficult situation exists. There's no question, it was established. that the Band did use a very large area as its traditional hunting and trapping area. This was outside the reserve claim. They said, "That is our area. We still have Native title there. We were never party to the treaty, therefore our title was not extinguished, so we still have the right to claim the benefits of whatever goes on in that land. And since you have deprived us of the benefit of the hunting and trapping. although the treaty says that the Indians will have the right to hunt and trap as before on unoccupied Crown land' -- the Band took the position -- 'there you are, you must recognize our right. that we're entitled to compensation for the loss of that land, the loss has come to us as a result of the elimination of the wildlife." Both governments of course -- well, the government of Alberta said they have no claim against Alberta here because it's a claim against the government of Canada. The government of Canada took the position then, and I believe still does, that there's no claim based on Native title because by the treaty -- although the Lubicon Indians were not a party to the treaty, they were not discovered at that time. as it were -- nevertheless, by the treaty itself, Native title in the whole area of the treaty was extinguished. Therefore there can be no claims based on Native title and specifically no claims for loss of livelihood from the traditional lands. Or for loss of the oil and gas revenue from that area. That was the government of Canada's position. which Alberta of course totally supports.
I had, in my discussion paper -- and I won't go into the details here -- suggested that, while not wishing to say that the Indians don't have a claim based on Native title and only have a claim based on treaty rights -- I'm not saying that, I'm not taking that position -- but I had suggested that you don't need to take either one of those positions to find that the Indians have in equity a valid and recognizable and therefore sustainable claim. Because under the treaty Indians were promised the right to continue hunting and trapping as of yore, as formerly. When the land was transferred to Alberta in 1930, it was agreed between the governments of Alberta and Canada that that right of the Indians to hunt and trap should continue. And indeed the words were used, in effect, that "in order to insure the continuation the supply of wildlife to support the Indians' needs". The governments agreed -- there was recognition -- that the Indians had a right to continue that livelihood. If they had a right to the continuation of it, surely they had a right to expect the continuation of the source; namely the wildlife itself. In other words, if you drive the wildlife away or permit the wildlife to be driven away by issuing exploration and development permits, then you are depriving the Indians of a right which you have recognized they have. So let's not be formalistic as to whether it is title-based or treaty-based. There's a right which was recognized and which would give rise to an equitable claim - and law and equity are no strangers was the wording I used.
I also suggested -- not in the discussion paper but separately, and I think it should be considered again -- that while I hoped that the main effort would be made to arrive at settlement on the basis I have just outlined and outlined in the discussion paper, and that should be the basis and the governments should come up with the best offer they think they can make on that basis -- my view is that, if they make a generous offer the Band would accept it and that Native title might become a side issue. If an offer is made. If however it's found not to be acceptable after every effort has been made, then I think the government of Canada might consider a special reference to the Supreme Court of Canada on the question of Native title. Was Native title in these circumstances extinguished by the treaty? That's a question of law. They could get a relatively quick answer.
Next was the matter of compensation for future losses. I think again much the same reasoning applies -- that is if settlement is arrived at along the lines just discussed, especially with employment opportunities and job training and wildlife management and protection, then the claim for future losses I think you'll find doesn't amount to much. I had the feeling that the Band would not press those issues to any extent.
Next, compensation for trespass, waste and destruction of culture and lifestyle -- that's a very difficult claim. I discussed it with both the Band and the governments and of course there's no real area of agreement. I won't discuss the details that I discussed in the paper. As I said, it's a unique claim, an interesting one, but I find it rather difficult to contemplate that there could be a separate claim for that because in a sense every time that an Indian area has been settled by a white civilization which is different from the Native civilization -- whether it be in the east or the west, the north or the south -- changes in lifestyle have followed. It seems to be one of the inevitable features, if you like, of the society, the world that we live in. Therefore I don't know of any kind of claim on this basis that has been made. You come along and disturb their lifestyle, so we have a claim of trespass? I'm only saying that it seems to be a very difficult claim to maintain in court. But again. it seems to me that if there was a generous settlement -- and I don't mean unreasonably generous, I mean a settlement that takes into account all the suffering and the inequities that they have experienced -- if. there were that kind of settlement I would suggest probably the claim I just mentioned would not be pursued.
On the Band's costs to date, the facts seem to speak for themselves. To the extent that they have valid claims, they should be compensated for their costs of pursuing them.
The government of Canada has said -- and I believe the government of Alberta has agreed that where it's responsible it will give support -- that once overall agreement is reached. there will be as speedy as possible a settlement on the reserve and infrastructure necessary to support a way of life. So I don't think that will present any problem once an overall settlement is agreed upon.
The right to self-government, including the determination of membership -- again, while that was not -- at that time it was a very separate thing -- now it seems to be subsumed by the discussions going on -- and I hope they'll continue -- on the overall right of Native self-government.
Michael Asch: Still at the time when you...
Davie Fulton: Pardon?
Michael Asch: Still, at the time. when you did your report...
Davie Fulton: The claim then was for the right to self-government including such matters as self-policing, the right to administer the affairs of the reserve, housing and so on. It would seem to me -- as I said in the discussion paper -- the position was reasonable and I have no reason to change what I said in the discussion paper on that matter.
Michael Asch: That's really basically the information that I wanted -- it was my impression in reading the document that you had a -- excuse me for characterizing -- but it seems to me a fairly optimistic view, or at least there was a sense of optimism, that these issues could be resolved. That the distance wasn't so great that a settlement couldn't in fact be derived fairly soon. Was that the way you felt at that time?
Davie Fulton: Yes. Not in terms necessarily of time of implementation, because there would be lots of complicated discussions and negotiations based on such matters as genealogical studies and so on, plus the protection of wildlife, etc. But agreement in principle, I entirely agree, at that time I believed might be very soon forthcoming. I was obviously wrong there. Perhaps a little bit of history there won't hurt. As I said. with the change in the Alberta government -- Mr. Getty taking over the government and Mr. Pahl leaving -- the position of Alberta in certain very fundamental areas changed very positively and very constructively in favor of the Band. Unfortunately, the same did not seem to be -- at least in my impression -- the same could not be said in the federal area. Mr. Crombie was succeeded by Mr. McKnight as Minister responsible for Indian Affairs very shortly after my discussion paper was prepared. While I wasn't party to any of the negotiations between the government and the Band after the discussion paper, I was informed and from time to time, consulted if you like by telephone, particularly with regard to the possibility of mediation that would be discussed between the Band and the government of Canada. The Band asked if I would be prepared to serve in some capacity in the mediation process and I said yes. I would. Then I gather it was put before the federal government, about the possibility of my being chairman of a mediation panel. Mr. McKnight's position was "Never, Mr. Fulton is prejudiced." He used the word publicly. He made that statement publicly, that I was prejudiced in favor of the Band. He said, "We couldn't possibly have him as a mediator." To which my answer was, and I put it in a letter to Mr. McKnight, "You apparently don't understand the proper sense and meaning of the word 'prejudice', because prejudice is a position you take based upon a lack of the knowledge of the facts or deliberate disregard for the facts and you come to a conclusion notwithstanding what the facts may be; whereas sympathy, on the other hand, is a conclusion you arrive at based upon knowledge of the facts. And I'd be guilty of sympathy because I know the facts now. But I am not prejudiced." I never had an answer to that letter. But apparently the position then of the federal government became, you know, "What Fulton said in the discussion paper is not very useful."
Michael Asch: So you would conclude that there were some political changes that happened -- first the attitude of the Alberta government and then subsequently the attitude of the federal government -- that precluded continuing along the lines that you had laid out and that in fact stopped any optimistic possibilities?
Davie Fulton: It seems to me that that was the case.
Michael Asch: Do you have any idea right now about what we as a panel might do, what kinds of assistance we might give to create an atmosphere again where it might be possible to reach what I would consider, characterize as a high-water mark -- the possibility of solving the Lubicon situation that you achieved?
Davie Fulton: I can't help wondering whether one of the obstacles to progress has not been the fear of creating a precedent that might affect settlement of other claims. That word was used several times in my discussions I had with both Alberta and Ottawa -- with Departmental officers. My answer to that generally was that I can't see this being a precedent because this is an entirely unique set of circumstances. Never before in our history -- and let's hope never again -- has a situation existed where a Band was promised, over 50 years ago, a settlement and a reserve that would have given them a livelihood, set them up in that way so that they wouldn't have suffered so dreadfully from the loss of their other form of livelihood and they would have had other benefits follow from it -- promises which had not been fulfilled, which have been stymied, which have been met with obfuscation and difficulties by the very people responsible for implementing the promise. The federal government took various steps which abdicated the obligation that they had undertaken. Steps taken by the government of Alberta to make it impossible for the Band to pursue the claim, such as the passage of retroactive legislation. The Band had then filed a caveat against certain steps being taken to interfere with the area being claimed, the traditional area. and the government of Alberta passed legislation retroactively destroying the right to filing a caveat -- a dreadful sort of thing to do. Physical poverty resulting from the loss of livelihood. Disease. And all the obfuscation and destruction that's gone on. It seems to me that those facts -- plus, as I said, the very fact that never before, and I hope never again, has a promise been made and for 50 years never been fulfilled -makes this situation a unique one. So a generous settlement recognizing the equity of the situation could not possibly serve as a precedent for other settlements, because there's no other such situation.
If that fact could be explored and perhaps discussed with the members of the panel so that it would remove the fear of a precedent, then that might open the avenue towards a settlement.
Michael Asch: Thank you. I have lots of other questions but I think I'll share the microphone with others.
Jacques Johnson: We have been sitting for over an hour. Perhaps we deserve a little break, say a 5 minute stand-up. There's also coffee and tea available if you wish to avail yourself of it. We should resume in about 5 minutes or so.
Jennifer Klimek: Mr. Fulton, I'd like to elaborate a bit on the precedent discussion you were having before that this may not be a precedent for other land claims. But we've been hearing some people put forward that the other land claims which have been settled are much less than what the Lubicons are asking for and that should be used as a precedent for looking at their claim. Do you have any views on that argument?
Davie Fulton: Well, I think the answer I would make is that the Lubicon claim should be judged on its own merits. My impression is that if the facts are analyzed, it wouldn't be a precedent for other claims. If you get a generous settlement for the Lubicons, and then make some mathematical calculations and say that these would apply elsewhere, then you could probably show that it doesn't apply because other situations are not the same. It seems to me also, as I said, any settlement has to take into account the facts of the treatment to which the Lubicons have been exposed over all these years, or lack of treatment if you like, lack of progress in settling and dealing with their claim and then obfuscation and frustration once the claim became formalized. I'm proud to be a Canadian, but I'm dreadfully sorry about this instance, and I hope it's the only one in the history of our country. And that it will soon be settled and that there will never be another one.
Jennifer Klimek: Thank you. The second question -- this is back to the process a bit. Once the discussion paper was done, I understand the object was to come back and work on it. Did you get any feedback -- other than it's a waste of time from the provincial government -- as to why they didn't want to go ahead with it and from the federal government as to whether they were willing to advance with this had the province not scuttled it?
Davie Fulton: No, I got no feedback at all. I must say I was, from time to time, surprised at that, but I had no official communication. The only thing I've ever had was from the Band itself. And Mr. McKnight's statement made publicly that I was prejudiced. I've had no other communication officially from either government.
Sandy Day: Mr. Fulton, upon reading the discussion paper I couldn't help but be impressed by a sense of objectivity and also a sense of fury almost between the parties because there was a history of what had happened up to that point and I too feel such dismay that nothing happened. It doesn't seem like there is a logical explanation. I'd also wondered was the paper studied at all? Was there any report done on it?
Davie Fulton: Not to my knowledge. I dare say it was studied. I dare say it was considered at least in the Department. But I don't know what report was made to the Minister on it. As I say, my impression was from time to time that senior officials in the Department were concerned about the matter of precedent. Would this be a precedent for settlement, say, with one of the other six isolated communities in this general area? That sort of thing. And indeed for treatment perhaps with respect to other Indian claims. But again my general position has been that I don't see how it could be a precedent because there's no parallel to their position.
Incidentally, I understand and I might make a comment, that there is a formal federal offer with reasons and a considered position on the table. And there's also a formal and considered Band analysis and response to that offer. I would -- it seems to be that perhaps one should start from there now, and try and bring the parties together and see if you can mediate a settlement or make some finding perhaps on the basis of the two positions that are outlined. I don't want to appear to say that the government of Canada has made no move. They may not have moved in the direction that one would like, but I understand now that they have made this formal offer. Perhaps that needs analysis and response on the basis of the facts.
Sandy Day: Thank you for that information. I'd also like to address specifically the wildlife management and environmental protection program. I'd like to just revisit that. I'd like to read from your paper if I may.
"The wildlife resource is the vulnerable one. If it is not protected it ceases to exist and with it goes the whole lifestyle and living which depend upon it. It is the continuation of wildlife which is threatened by development, not development which is threatened to the point of extinction by continuation of wildlife. There must be very few, if any, situations where development cannot be effectively continued notwithstanding the necessity of modification of a particular program or alteration of a particular location."
When I read those words I find them very poetic and profound. I also see where they spread out beyond even that situation. I'd like to ask from your dealings with trying to set this up, look at this management program, can you expand on it or let us know where it led you to? You seem to sound very hopeful on that. Is there a possibility of continuing into that area?
Davie Fulton: On the basis of my discussions with the government of Alberta in particular, which is summarized in that portion of the paper, I was led to hope and believe that Alberta was sympathetic to the idea of a joint wildlife management program which would be operated under their supervision with the cooperation of the Band and the development companies. Up until the time that I filed the discussion paper, I had no reason to suppose otherwise. I've never heard that Alberta rejected that. It's simply that nothing has happened, I gather. I don't know why. I suppose perhaps because it would only happen as part of an overall settlement.
Sandy Day: That's a thought that arises in my mind, too -- that some of these issues seem like they could proceed but they all hinge on a whole. Do you have any perception of that? Is there a way to unhinge some of them? Do you have a sense of that? Or does it all have to go as one complete package?
Davie Fulton: I don't think it does. Looking at it from the outside and trying to be impartial, I would agree with you that there are some areas, such as this one I think, which could be taken and dealt with separately. But then you get, I suppose, into a bargaining position. I regret to say that that may be what's happening, that those who are asked to make the overall settlement and at whose cost it will be don't want to give away anything first. Maybe they want to keep everything on the bargaining table until an overall agreement is arrived at. I don't know. I see no reason in principle or in law or in anything else why this could not be dealt with separately. And some of the other issues. Incidentally, one of the things I think that might be again emphasized is the Band's own positions and statements that they do not anticipate that they will be insisting in perpetuity on the right and the need for hunting and trapping as their main support and livelihood. They expect that their people might well want, in fact, to follow another way of life. But they don't want them to be forced into the 20th century. They want it to be of their own accord. But there are people in the band now who know no other way of life. Therefore this management program is of vital importance to them. That should be taken into account...
Jennifer Klimek: Mr. Fulton, when you were looking at this did you have any sense of the negotiation strategies or the processes, because it seems there is an impasse now. My sense of it is that every day that goes by, the Lubicons fall further and further behind. At this point, the government doesn't have -- the status quo benefits them. Do you have any sense of that or how that could be dealt with?
Davie Fulton: I'm afraid that I haven't. It's a statement, a position which I hope is not the actual one because it is so appalling to think that a government would take the position. "As long as we stall, the less Lubicons there will be." But what you've said is, from my knowledge, quite true, because the facts came to my attention after I started the inquiry, as to just how appalling this situation is for the Lubicons and the crunch that they're undergoing, increasing hardship as a result -- still births, disease, and so on, indications of poverty. That surely should make any government desirous of making an immediate settlement. I find it appalling that the suggestion should be made that they're prepared to let this go on and just let matters take their own course. And yet that's the conclusion, I suppose, that must be drawn if in fact a settlement is inevitably postponed. But I can't reach any conclusion. I'm just amazed. It's almost impossible to believe the government could take that position. But I'd have to say facts speak louder than words.
Menno Wiebe: Mr. Fulton, I would like to follow up a little further on the wildlife management matter. Given the principle that you established in your report that conflicts, if they arise, should be resolved by giving priority to wildlife over development, you also recommended that there be a joint management of wildlife -- observations from other land claim agreements elsewhere makes one a little leery of joint management programs because it almost always means advisory status rather than authority on the part of the Native groups. Could you see an authority structure in the wildlife management that would be a counterpart to what you recommended in principle; namely that the actual management of wildlife be accorded to the Lubicon people with technical expertise as they would require it, but that actual decision making rather than advisory capacity would be their own?
Davie Fulton: That would be a matter that would have to be settled between the parties. It seems to me that it would be difficult, probably, to agree that the Lubicons should have all the decision-making because the question of conflicts would arise. The proposal is, in my discussion paper, that where there can be a compromise then that be worked out. In other words, if a proposal, say by a developer, is going to result in some damage to wildlife, then see if some compromise could be worked out. They could offer to have the proposal altered somewhat, and maybe the wildlife management altered somewhat if that could be done without permanent damage or unacceptable damage to either. But where there is no such compromise, then I suggest that the priority should be given to wildlife. But as to who would make the decision as to whether compromise is possible or advisable, it seems to me that it would be difficult to think that one of the interested parties should make that decision by themselves. I would agree with you, however, that the execution of the wildlife management program could well be left with the Band, if that was their objective and their desire. That would be part of the decision-making process between three parties with opposing interests.
Menno Wiebe: Maybe I could just clarify. I ask that question on the principle that we think Canada or the Provinces appoint those people who are most knowledgeable about the areas of expertise when the people who have hunted for 20,000 years probably know most about the landscape and the environment but their wisdom is often not acknowledged in the actual administration. But we will take into consideration what you said.
Davie Fulton: In the management of it, I think the Band should have the major, if not the sole, responsibility. But in the decision-making it seems to me it would have to be a joint process or an arbitration or a mediation process, where irreconcilable conflict arises.
Menno Wiebe: If permitted I'd like to ask another non-related question, and that goes back to the reserve allocation. You made reference in your findings to the 1930 Resource Transfer Act, which I understand obligates the Province to allocate reserve areas in those areas or with reference to those Bands that have treaty land by way of entitlement?
Davie Fulton: Yes.
Menno Wiebe: However, in your recommendations, you suggest that some of the land be transferred, and that would be done at the expense or the Province would have to allocate, but the remainder was to be paid for out of the federal coffers -- if I understand your report correctly. In other words, divided. How does that reconcile with the Resource Transfer Act?... (change tapes) ...
Davie Fulton: My point was that had the federal government undertaking been carried out at the time that Alberta agreed to it, then that would have been the end of it and Alberta would have accepted that. What Alberta was then subjected to, in my discussions with them, was that they would now be asked to devote a substantially larger tract of now known valuable land. In 1940, the value was not known. Oil and gas had not been discovered yet. It did seem to me that in fairness or equity, if you like, that payment should be made by the federal government because they were responsible for the delaying of a settlement, therefore they should bear the cost. I put that forward as a possible ground that might make it acceptable for Alberta to agree to the larger area. But I understand now that agreement has been made, or arrived at, on the basis of the area. So I would be a little bit leery of reopening that question if in fact there is agreement between the Band and the two governments.
Menno Wiebe: If I'm permitted, I'd like to ask a third question of a very general nature, but which underlies what we're doing here. That has to do with the Department of Indian Affairs and Northern Development. We have observed over the long haul that this dual portfolio of Indian Affairs and Northern Development is often quite paradoxical in nature but housed within one Department. As an expert in the area of law, second to none, and with your status in government, I'm wondering if you would give some clarification as to the paradoxical nature of these often conflicting two portfolios within one Department as it pertains to the Lubicon case.
Davie Fulton: What you're saying is that the idea of a Department having joint responsibility for Indian Affairs on the one hand, which is below the Territories, and Northern Development which includes the Territories, is incongruous and somehow in conflict?
Menno Wiebe: I'm suggesting the Indian Affairs sector of the division by mandate is to undergird the justice for aboriginal Peoples, but Northern Development almost always is on the side of development, and those two are frequently in conflict.
Davie Fulton: I hope that as I understand it, there's some ground for it, that increasingly Northern Development will take account of the interests and position of the Inuit and other Native peoples there. So to some extent it seems to me there is a parallel, it not exactly a similarity. The interests of the Natives in the north have to be reconciled with the interests of development. And here, in this area anyway, the problem of development and the interests of Natives, again, have to be reconciled and justice done to the Indians. I haven't done an analysis of the matter or a close study of it so I couldn't go beyond that. It seems to me that there is room for the other as well.
Jacques Johnson: I would like to ask you about the membership of the Band. How do you see the decision as to who is part of the Band be made? By the Band alone? What is the role of the government in it? You have certainly studied that. What would be your recommendation on the basis of your studies?
Davie Fulton: I think I put it in the discussion paper. I'm not quite sure what progress has been made on it since. I speak with some hesitation, because I don't want to take a position contrary to any desirable progress that's been made in resolving the dispute. But my suggestion at that time was that a panel of genealogical experts be convened or on the other hand, that those who had been responsible for the studies to that date be called forward so discussions could take place on the basis of information as to how the conclusions were arrived at. And then a decision made as to which is the correct conclusion. The studies are necessary because the detail is -- I think the facts, I think it's correct to say that the facts support the Band's contention that over the years numbers of their members were included on other Band lists who did not desire to be on those Band lists and who made no move to become members of those Bands. This was because they attended treaty functions at which time treaty benefits would be paid out -- the Lubicons, not being recognized by the treaty, did not receive those benefits and no such function ever involved them. They went to meetings where other Bands were being paid and asked for treaty benefits. And because they were there with other Bands, they were automatically put on that Band list, although that was not their intention or desire when they went there. Now their descendants are told, "Here, you are descendants of people who were members of another Band. Therefore you cannot be Lubicon.' That was the position taken in a number of cases. And genealogical studies, I believe, have supported the contention that in many cases it can be proven that those people who now ask to be recognized as Lubicon are descendants of people who should not have been included in other Bands. So that's the kind of study that's necessary and I understand has been carried out. And what I'm suggesting is that those who carried out the study be called together and then a decision be made as to what was the actual proper number of the Band on that basis. But a decision would involve some further negotiations of course, or if agreement doesn't come that way then arbitration or mediation. Your Commission might want to have that kind of expert hearing, a hearing of experts, if there is still a dispute. But as I say, if in fact there's agreement on the size of the reserve and the numbers to be counted on that basis, then perhaps it's not wise to open it up. I don't know what the situation is.
Jacques Johnson: Well, there seems to have been an agreement between all parties concerned, because when the size of the land was decided it was on the basis of a certain number of people, in the area of 500 people. But from what I understand now the government is questioning the membership again. The understanding is that they want to question this all over again. I think this came out this summer. So I was wondering if you had any knowledge on this, or at least any opinion on how membership should be arrived at.
Davie Fulton: I think on the basis that I said, on the facts that would be established by that study, the genealogical facts of the situation, whether those people who are now registered members of other Bands should have been so categorized. Then there is a definition of membership, I think, in the Indian Act which I suppose tends to be ignored. But it's a matter, it seems to me, of a count made on the basis of ascertained facts, who in fact are members of the Band on the basis of the stated facts.
Michael Asch: I'm mindful of the fact that it's ten minutes to twelve. We agreed that we would break for lunch at noon. We didn't ask you a really simple question when you explained to us what process you had gone through; and that is, how long did it take you to go through the process from the time that you agreed to undertake this to the time that you wrote your report? Or submitted your report, I should say. Or your discussion paper.
Davie Fulton: I thought probably the discussion paper would say when I started, but it doesn't. My recollection is that it was late '84 or early '85 when the Minister first commissioned me to do this.
Michael Asch: Then you spent at least a year talking to the parties, so this occasioned a number of discussions?
Davie Fulton: Yes.
Michael Asch: I'm just wondering because we are hoping that we will have the opportunity to speak to provincial and federal representatives. I'm not sure whether this will happen. But at the time, from some of your answers, I'm just wondering if you would feel it fair -- if you had occasion to hear answers to these two questions I'm going to ask you -- if it would be fair for you to report. Two issues that trouble me -- and I would like to ask the appropriate representatives -- is the theory that you mentioned and that you have in your report, that Native title was extinguished by the signing of the treaty notwithstanding that the Lubicon didn't sign it. Did you have any occasion to discuss the legal or philosophical basis upon which the federal government came to this conclusion?
Davie Fulton: No. I don't recall that I did. But I believe there is some law in support of the idea that -- some precedent, it you like, cases -- that support the idea that Native sovereignty can be extinguished, or title can be extinguished, not only by treaty, by agreement, but by the de facto exercise of sovereignty. And the federal position, as I appreciate it, is that although the treaty was only made with certain Bands in the area, not all of them, the federal government exercised de facto sovereignty over the whole area. After the transfer to Alberta. the provincial government exercised de facto sovereignty without question. That was the case initially, certainly. And it's by that fact that Native title was extinguished: that seems to be the federal position.
Michael Asch: Fair enough. I would like to hear from them, of course, but I just wondered if you had had an occasion. The other thing is about retroactive legislation...
Davie Fulton: May I just interrupt? I'd like to say that having said that, to go back to the position I outlined to you earlier that I don't think that can be a basis for settlement. I think the equitable principles that I've discussed should be looked at first.
Michael Asch: Yes, I understand that and appreciate that. I see that as an avenue to resolve the problem. These are things that I'm hoping just to ask you because if we don't have a chance to talk to them, I thought you might have some information that would be helpful to us.
The other question is on the retroactive legislation. Clearly it had a very important practical impact on the case that the Lubicons and the Isolated Communities had developed in the court system. Was there anything that you had discussed in the basis upon which the Provincial government had decided that this was a reasonable course of action?
Davie Fulton: No. I didn't see any point in raising something there where I felt that the outcome would show an indication of my horror, if you like, my disapproval of what was done and therefore sour the atmosphere. So I didn't raise the matter.
Michael Asch: They didn't volunteer any information?
Davie Fulton: No.
Michael Asch: Thank you.
Sandy Day: As I see it, it seems to me that before negotiations can go anywhere there has be reestablished an element of trust on all sides. It seems like that is something that is not there, has not been there. I'd like to ask your advice or your opinion as to how to reestablish a sense of trust with the parties.
Davie Fulton: That's a difficult question, isn't it? I don't think that can be done unless you have discussions with the parties. I understand you had some difficulty in approaching or in getting a meeting with federal officials. I don't know what's the situation with Alberta. I can only urge you to take every effort to try and bring about a meeting between appropriate federal officials and Ministers or other levels of both governments and endeavour to have the kind of discussion that you want and see if you can reestablish a basis of confidence and mutual readiness to negotiate. Perhaps the examination, as I say, a detailed examination of the position of the federal government on the one hand and the Lubicon on the other, and then you can go to them and say. "Look,. we want to discuss this with you. Won't you come to a meeting?" And see if you can work out something. I would think they would find it very difficult to avoid such an invitation. And if you made it then you would perhaps establish some avenues of reconciliation. Otherwise I don't see how you can establish the desired atmosphere.
Jacques Johnson: Mr. Fulton, I would like to thank you for this morning's hearing that I would like to bring to an end. It's five to twelve. We will resume this afternoon at 1: 30. I would like to take this opportunity, however, to welcome the Lubicon people who have come in at the end of this last hour or so and their Chief, Bernard Ominayak. I would be so bold as to suggest that perhaps after we have completed the testimony of Mr. Fulton, we may ask Mr. Ominayak if you would like to maybe come forward to answer a question or two that we may have, particularly in regards to the progress of negotiations if he is able to share with us any of that progress. We'll see you at 1:30. Thank you.
Jacques Johnson: I would like to thank Mr. Fulton again for the very important input that he presented us with this morning. We have two more questions maybe to begin and perhaps to ask if when you visited with the Lubicon people that first time, can you tell us what you saw? Can you tell us what you found there? What sort of people? In what sort of condition were they? That was in 1985. The development in their traditional area had begun around 1979 so there had been about 6 years of very rapid and intense oil development, in particular. I wonder if you have anything to tell us about this, about the people themselves, as you saw them?
Davie Fulton: My impression was of a people who were definitely the victims of poverty, hardship, who found it difficult to contemplate anything that they could do in the present circumstances to improve their position and who felt that their future and welfare depended on settlement of their claim. That was the only thing that held out any hope for a future for them. In discussions with them and from what observations I was able to make it did become perfectly clear to me and certainly was my impression and still is, that up until recent years they had been almost entirely dependent upon the traditional Indian way of life -- hunting and trapping, living in harmony with nature and finding the presence of wildlife in various forms which was the main if not the sole source of their livelihood. However, one of the things that impressed me, not only from the formal statements that were made but from my discussions and observations was that they did not insist that forever they must follow that old way of life. They indicated that they were prepared to make adjustments and to live with development provided development would allow them to live. In other words, they could not make the transition to an entirely new way of life overnight. There was a realization that generations to come, if they have adequate support and livelihood -- in other words, if they could live -- they might well be ready to live with the new way of life in conjunction with development and derive their livelihood from that development and other sources of income from what we might call the modern, white way of living. But their position was that they did not want to be bulldozed into a new way, they wanted to be able to make the transformation of their own accord, their own free will, and decently and with dignity. That impressed me very much, the fact that they were not insisting upon the maintenance of their historic traditional way of life forever. They were prepared to make adjustments. And to do so cooperatively. This approach I found realistic and encouraging.
The other thing that impressed me -- and I must confess that I had a certain reluctance to believe this -- was the history of abuse, of misunderstanding -- not misunderstanding so much as unrealized hopes. The belief that they were dealing with honorable people in negotiations and that the things that were said were meant. Then they would find that they were not meant or were not realized and that had a tremendously discouraging and disillusioning effect on them. So I found that there were reservations on their willingness to make to governments full disclosure. I wanted, for instance, to ask them and encourage them to meet with Alberta, in particular, and then go into a full discussion with full disclosure of all the facts and records with regard to Band membership. I found them extremely reluctant, indeed unwilling, to do that because of their suspicion of what would be done with certain information that they might reveal in that process and how it would be used to undermine and weaken their claim instead of being used for the purpose of arriving at an overall solution. That suspicion, that attitude, I found at first, let's say, difficult to believe and accept. I came -- as I learned more and more about the history of past so-called negotiations and dealings by government with the land question -- I found that there was cause for their suspicion. So I became extremely concerned about the possibility of making progress, and some of this is expressed in my discussion paper. In summary, I found people who were desperately in need of a sincere, honest and simple approach to and response to their problems, and a process of honest and open negotiations with a sincere desire to make a settlement. That's what I tried to work towards in my meetings and in my discussion paper.
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 it 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 livable 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 of 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 f or 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 benefited 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) ...
Go to: Transcript of Lubicon Settlement Commission of Review Public Hearing - Day Seven