Countering The Counterarguments

Countering The Counterarguments1

 

Hopefully, you’re here because you support the Lubicon and their struggle for recognition of their rights. What you’ll find here are some of the criticisms and arguments made against the Lubicon Lake Nation’s attempts to secure a land settlement and implement self-government. We hope it will be a useful tool in the work you do to help the Lubicon. Taking action can be as simple as engaging in a conversation with people you know, be they your family or government officials. You can build from there, and we’ve got some tools and resources on this Website to help you do just that. And, if you’re here because you are a skeptic, hopefully some of these ideas will help to change your mind.

 

1. What gives the Lubicon Lake Nation the authority to run its own affairs? Is this realistic?

2. Why is the Lubicon Lake Nation looking for rights based on an ancient way of life in this modern day and age?

3. Is selecting a Chief for life undemocratic?

4. Why can't the Lubicon Lake Nation move to another location? Why such a strong connection to this piece of land?

5. Why hasn’t the Lubicon Lake Nation agreed to a settlement yet?

6. Why should the Lubicon have a say over resource development and projects that are important for all Canadians?

7. How can it be right to have some laws for some people and different laws for others?

 

1. What gives the Lubicon Lake Nation the authority to run its own affairs? Is this realistic?

The question shouldn’t really be what gives the Lubicon authority over their own affairs. Instead, a better starting point would be to ask if there has been anything to take that right away.

The Lubicon have exercised self-determination and self-governance since time immemorial. In other words, the history of the Lubicon Nation, in what is now the province of Alberta, extends beyond memory or record.2 In fact, one of Canada’s earliest constitutional documents, the Royal Proclamation of 1763, recognizes Indigenous sovereignty and nationhood.3 Even if this recognition didn’t exist under Canadian law, the right of peoples, and in particular Indigenous peoples, to self-determination is clearly set out under international law.4

These rights can be given up only with a nation’s consent (i.e. through treaty)5 or taken way by the federal government if the intension to do so is made very clear.6 As well, section 35(1) of our Constitution also recognizes and affirms Aboriginal rights as they existed in 1982.7 Because the Lubicon never signed a treaty giving up any of their rights, and their rights were never clearly extinguished by the federal government, the Nation still very much has the authority, and the right, to run its own affairs.

Is it realistic for the Lubicon to run their own affairs? Yes. The Nation has a well-developed system of laws based on long-standing Cree legal traditions. Sometimes, it may be difficult for people who aren’t familiar with these legal orders to see and understand them, but that doesn’t mean they don’t exist.8 Besides, the Nation existed, and got along just fine, long before Canada came into being. The biggest obstacle to the health and well-being of the Lubicon Nation is the impact of the unchecked oil industry.9

 

2. Why is the Lubicon Lake Nation looking for rights based on an ancient way of life in this modern day and age?

There’s an assumption built into this question that Lubicon laws are old and antiquated; things of the past. This isn’t true. Just as Canadian common and civil laws are built on custom and tradition, so too is Cree law. What the Lubicon are looking for is a recognition of their contemporary rights based on long standing principles, values and traditions. And, while a person’s way of life may have firm roots in the past, is important to recognize that rights must be allowed to change just as the world around us does the same. It would be unfair not to allow for a recognition of this evolution.10 Even the Canadian courts recognize this fact.11

The other important thing to keep in mind is that laws need to be culturally relevant to work.12 In other words, the rules need fit the people they govern. The Lubicon must have the right to determine laws that work best for them based on their national identity, history and culture.

 

3. Is selecting a Chief for life undemocratic?13

First, Chief for life doesn’t mean Chief forever. According to Cree legal traditions, it is the citizens who give a Chief the authority to govern so long as he or she is able to maintain the respect of the people, with no set term of office.14 And, just as easily as this authority has been given to Bernard Ominayak, it can be taken away.

Lubicon leaders are supported and encouraged by the community from an early age.15 The selection of a Chief takes place in accordance with tradition and the Lubicon Lake Nation General Election Code as overseen by the Elders’ Council.16 On June 25, 2009, Lubicon citizens came together in the Community Longhouse to determine who would be Chief.17 This kind of direct, broad-based participation can be seen as democracy in its truest form.18

Besides, isn’t it the Nation’s right to determine how it selects its leaders? According to international law, yes.

 

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions. - United Nation’s Declaration on the Rights of Indigenous Peoples, Article 18.19

 

4. Why can't the Lubicon Lake Nation move to another location? Why such a strong connection to this piece of land?

The piece of land in question, known as the “Teardrop” is the traditional territory of the Lubicon people.20 Their ancestors’ dust is in this land.21 The territory has sustained the Lubicon for as long as they have existed and their history is written there.22 If they lose this land, they will lose their way of life and their identity. This is their rightful home, and has been since time immemorial.23

International law recognizes this special connection Indigenous people have to their land as well as the obligations nation states have to ensure that these places, and corresponding rights, are well protected.24

Canadian law also recognizes a special kind of Aboriginal right called “Aboriginal title.”25 Generally, in order to prove the right, an Indigenous nation has to show that it had exclusive occupation of the land at the time Canadian sovereignty was declared, and that there is a substantial connection between that historic occupation and current land use by the nation.26 The Lubicon can meet these criteria. And, because they have never given anything up through treaty nor had rights taken away by an act of the federal government, the Lubicon still have unextinguished rights to their land.27

 

5. Why hasn’t the Lubicon Lake Nation agreed to a settlement yet?

The Lubicon deserve a settlement that clearly addresses their needs and fairly accounts for their losses.

In 1940, Ottawa recognized the Lubicon as a distinct band and agreed to establish a reserve.28 Since that time, however, no treaty has been signed.

In 1988, the Nation was able to reach an agreement with the Alberta government. The Grimshaw Accord set out terms for the amount of land owed to the Lubicon as well as an agreement for sub-surface resource rights.29 But, in order for these things to become reality, the federal government must agree. This still hasn’t happened despite urging and criticism from organizations like the United Nations and Amnesty International.

The last round of negotiations broke off in 2003. This was primarily because the government wouldn’t agree to clear terms regarding self-government rights or fair compensation for the damage done by oil and gas drilling on their traditional territory.30

The Lubicon is seeking a deal that accounts for every citizen of the Nation and is capable of providing for future generations as well.31 And, according to international law, they are entitled to nothing short of a fair and equitable settlement.32

Considering it was the federal government who failed to account for the Lubicon way back in 1899, and assumed jurisdiction over their territory without an agreement, the real question should be: Why hasn’t the government agreed to a settlement yet?

 

6. Why should the Lubicon have a say over resource development and projects that are important for all Canadians?

The main reason, is that the Lubicon are entitled to have a say over what happens on their territory, land they never gave up jurisdiction over. (See the answer to question #4.)

Another good reason is that even a road isn’t benign. The development and resource extraction taking place on their land has tremendous and devastating effects on the Lubicon people.

The health implications are perhaps the most startling. Illness and death rates have shot up. A shocking number of pregnancies have ended in stillbirths,33 nearly one third of the community suffered as a result of a tuberculosis outbreak in the late 1980’s,34 and clean drinking water is 100 km away.35

As well, the alterations to the natural environment have dramatically impacted the Lubicon’s traditional way of life. Hunting, trapping, and fishing were drastically curtailed by the introduction of industry in the region and its subsequent impact on local wildlife.36 And, within the first four years of oil development in the area, the percentage of families relying on social assistance as their main source of income jumped from 10 to 90 per cent.37

Canadian Courts have recognized that the government can’t knowingly contemplate doing anything that might adversely impact Aboriginal rights without consulting with the affected nation.38 Yet, with nearly 2000 oil and gas wells already on Lubicon land, the Alberta government approves an estimated 100 new wells each year.39 Development occurs everyday at the expense of Lubicon rights.40

 

 

 

7. How can it be right to have some laws for some people and different laws for others?

The fact is Canada already has different laws for people living in different parts of the country. For example, while most provinces have common law courts, Quebec uses civil law.

Diversity is one of Canada’s biggest strengths. And, we accommodate our regional legal differences through our federal structure.41 The Supreme Court of Canada has recognized that this “principle of federalism” allows for a better ability to address the unique needs of Canadians living in different jurisdictions.42 This same principle could be applied to extended powers of governance to Indigenous nations within Canada.43

As well, Canadian courts have recognized the legitimacy of Indigenous legal orders in general, and Cree law in particular, since at least as far back as 1867.44

And, even if we didn’t have a tradition of accommodating different laws within Canada, the fact remains that nations, big or small, have a right to oversee their own laws.45

1 Professor John Borrows sets out five categories regarding the challenges that are often faced in obtaining recognition for Indigenous legal orders. They are: intelligibility, accessibility, equality, applicability, and legitimacy. The criticisms we attempt to address here fall under these lager, more encompassing categories and, in some cases, can be seen to be covered by more than one of these broader headings. John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, forthcoming) at 110-139 [Borrows, CIC].

2 The term “time immemorial” is also a legal term that denotes “a point in time beyond which legal memory cannot go.” Black’s Law Dictionary, 8th ed., s.v. “time immemorial”.

3 Royal Proclamation of 1763, R.S.C., 1985, App. II, No. 1; The Courts have also articulated the fact that First Nations were historically treated as “sovereign nations” by the English Crown. See Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 195 D.L.R. (4th) 135 at para. 51, 51 O.R. (3d) 641[Chippewas]; and R. v. Sioui, [1990] 1 S.C.R. 1025 at para. 69, 70 D.L.R. (4th) 427; James O’Reilly, a lawyer for the Lubicon Nation also made reference to the mention of the word “Nations” in the Royal Proclamation of 1763 in John Goddard, Last Stand of the Lubicon Cree (Vancouver: Douglas & McIntyre, 1992) at 175 [Goddard].

4 International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, arts. 9-14, (entered into force 23 March 1976, accession by Canada 19 May 1976) art. 1; Declaration on the Rights of Indigenous Peoples, GA Res. 61/295, UN GAOR, 2007, UN Doc. A/61/L.67, arts. 3-4 [UN Declaration].

5 See e.g. Chippewas, supra note 3 at para. 59.

6 The test for extinguishment of an Aboriginal right is set out in R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385; The Supreme Court of Canada clearly states that only the federal government, not provinces, may extinguish an Aboriginal right in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 178, 153 D.L.R. (4th) 193 [Delgamuukw].

7 Constitution Act, 1982, s. 35(1), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

8 Val Napoleon, “Thinking About Indigenous Legal Orders”, Research Paper (Ottawa: National Centre for First Nations Governance, 2007) at 3-4 [Napoleon]; John Borrows, Justice Within: Indigenous Legal Traditions (Ottawa: Law Commission of Canada, 2007) at 23.

9 Goddard, supra note 3 at 110, 132.

10 John Borrows, “Physical Philosophy: Mobility and the Future of Indigenous Rights” in Benjamin J. Richardson, Shin Imai & Kent McNeil, eds., Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oregon: Hart Publishing Ltd., 2009) 403 at 405, 419.

11 See R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220 at paras. 25, 48, 255 D.L.R. (4th) 1. 25; See also R. v. Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686 at para. 49, 274 D.L.R. (4th) 75.

12 Napoleon, supra note 8 at 4.

(1 August 2009) online: Calgary Herald <http://www.calgaryherald.com/tale+chiefs/1852150/story.html>.

14 Sharon Venne, "Understanding Treaty 6: An Indigenous Perspective” in M. Asch, ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver: University of British Columbia Press, 1997) 173 at 178-179 [Venne]; Marie Smallface Marule, “Traditional Indian Government: Of the People, by the People, for the People” in Leroy Little Bear, Menno Boldt & J. Anthony Long, eds., Pathways to Self-Determination: Canadian Indians and the Canadian State (Toronto: University of Toronto Press, 1984) 36 at 36, 41.

15 John Goddard writes about the grooming and encouragement of Chief Bernard Ominayak in Last Stand of the Lubicon Cree (Vancouver: Douglas & McIntyre, 1991) at 57.

(October 2009) at 2, online: Lubicon Lake Nation <http://lubiconlakenation.viviti.com/files/documents/Newsletter-October-2009.pdf>.

(November 2009) at 1, online: Lubicon Lake Nation <http://lubiconlakenation.viviti.com/files/documents/Newsletter-November-2009.pdf>.

18 Sharon Venne takes her definition of democracy from Black’s Law Dictionary. As she writes, democracy is, “that form of government in which the sovereign power resides in, and is exercised by, the whole body of free citizens directly or indirectly through a system of representation, as distinguished from a monarchy, aristocracy, or oligarchy.” Black’s Law Dictionary 5th ed., cited in Venne, supra note 14 at 179, 267, n. 10.

19 UN Declaration, supra note 4 art. 18.

20 According to law professor Val Napoleon, an Indigenous group’s traditional territory would be comprised of the area they could defend according to their legal orders. Napoleon, supra note 8 at 16.

21 This phrase is attributed to law professor Tracey Lindberg (lectures as part of Advanced Aboriginal Law course, Faculty of Law, University of Ottawa, September-December 2009).

22Anishinabek law professor John Borrows writes about how Indigenous law is recorded on, and read from, the land. John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, forthcoming) at 30; According to the work of Willie Ermine, site specific learning is also integral to Cree pedagogy and the effective learning of language, customs, and traditions. Willie Ermine, “Pedagogy from the Ethos: An Interview with Elder Ermine on Language” in Lenore A. Stiffarm, ed., As We See... Aboriginal Pedagogy (Saskatoon: University of Saskatchewan Extension Press, 1998) 9.

23 See note 2 for the legal meaning of the term “time immemorial”.

24 Brenda L. Gunn, “Protecting Indigenous Peoples’ Lands: Making Room for the Application of Indigenous Peoples’ Law Within the Canadian Legal System” (2007) 6 Indigenous L.J. 31 at 67. See e.g. UN Declaration, supra note 4 art. 26; and, International Labor Organization, Convention (No. 169) Concerning Indigenous and Tribal Peopls in Independent Countries, 27 June 1989, adopted by the General Conference of the ILO at its 76th session (entered into force 5 September 1991) at art.14.

25 See especially Delgamuukw, supra note 6.

26 Ibid.

27 See notes 5 and 6 for relevant case law.

28 Goddard, supra note 3 at 19.

29 Ibid. at 192-193.

“Frequently Asked Questions on the Lubicon struggle” (30 October 2009) online: Amnesty International <http://www.amnesty.ca/lubicon/resources/Lubicon_FAQ.pdf>; Darlene Abreu Ferreira, “Oil and Lubicons Don’t Mix: A Land Claim in Northern Alberta in Historical Perspective” online: (1992) 12:1 The Can. J. Native Stud. <http://www2.brandonu.ca/Library/cjns/12.1/ferreira.pdf>. (“[T]he band insists on being compensated for what they consider to be irreparable damage to their way of life.” at 28).

31 Goddard, supra note 3 at 185-186.

32 UN Declaration, supra note 4 art. 28.

33 Our Land, My People: The Struggle for the Lubicon Cree, DVD (Edmonton: Amnesty International, 2009) [Our Land, My People].

34 Goddard, supra note 3 at 153-154.

35 Our Land, My People, supra note 33.

“Land and Way of Life Under Threat: The Lubicon Cree of Canada” (October 2008) at 3 online: Amnesty International <http://www.amnesty.ca/lubicon/resources/Lubicon_FAQ.pdf>.

37 Ibid.

38 See Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 at para. 35, 245 D.L.R. (4th) 33.

39 Our Land, My People, supra note 33.

40 Ibid.

41 Borrows, CIC, supra note 1 at 101.

42 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 58, 161 D.L.R. (4th) 385.

43 Borrows, CIC, supra note 1 at 158.

44 Connolly v. Woolrich, (1867), 17 R.J.R.Q. 75, 11 L.C.J. 197.

45 See note 4 regarding a nation’s right to self-determination.

 

Welcome to the website for the Lubicon Lake Nation

We are the Lubicon Lake Nation: a sovereign and self-determining peoples. The Lubicon Lake Nation is a distinct Indigenous Nation with a well-defined traditional Territory in what is now known as north-central Alberta, Canada (see Map). We are Cree peoples, Neheyiwak, and were and have been hunting, fishing and trapping on our Traditional Territory long before the creation of Canada. We continue to occupy and protect our Traditional Territory today. We have never surrendered or ceded our land to a foreign government. Our Nation maintains jurisdiction over, authority for, and autonomy of our Traditional Territory, Nation and peoples.

Latest Tweets