Decision on merits; Substantive issues: effective remedy minorities minorities, right to enjoy own culture self-determination; Articles: 1 (1) 27; Procedural issues: abuse of the right of submission exhaustion of domestic remedies victim status interim measures; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
and Political Rights
A. Communication No, 1677/1984. Bernard Ominayak, Chief
of the Lubicon Lake Hand vy, Canada (views adopted
on 26 March 1990 at the thirty-eighth session)
Submitted by: Chief Bernard Ominayak and the Lubicon Lake
' Band (represented by counsel)
Alleged victim: Lubicon Lake Band
State party concerned: Canada
Date of communication: 14 February 1984 (date of initial iatter)
Date of decision on admiagibility: 22 July 1987
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 26 March 1990,
Having concluded its consideration of communication No. 167/1984, submitted to
the Committee by Chief B. Ominayak and the Lubicon Lake Band under the Optional
Protocol to the International Covenant on Civil zad Political Rights,
Having taker into account all written information made avaiiable to !t by the
author of the communication and by the State party,
Adopts the following:
Views under article 5. paragreph 4. of the Optional Protocol*
1. The author of the communication (initial letter dated 14 February 1964 and
subsequent correspondence) is Chief Bernard Ominayak (hereinafter referred to as
the author) of the Lubicon Lake Band, Canada. He is represented by counsel.
2.1 The author alleges violations by the Government of Canada of the Lubicon Lake
Band's right of uvelf-determination and by virtus of that right to determine freely
ite political status and pursue its aconomic, social and cultural development, as
well as the right to dispose freely of its natural wealth and resources and not to
be deprived of its own means of subsistence. ‘These violations allegedly contravene
Individual opinions submitted by Mr. Nisuke Ando and
wr. Bertil Wennergren, respectively. are appended.
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Canada's obligations under article 1, paragraphe 1 to 3, of the International
Covenant on Civil and Political Rights.
2.2 Chief Ominayak is the leader and representative of the Lubicon Lake Band, a
Cree Indian band living within the borders of Canada in the Province of Alberta.
They are subject to the jurisdiction of the Federal Government of Canada, allegedly
in accordance with a fiduciary relationship assumed by the Canadian Government with
respect to Indian peoples and their lands located within Canada’s national
borders. The Lubicon Lake Band is a self-identified, relatively autonomous,
socio-cultural and economic group. Its members have continuously inhabited,
hunted, trapped and fished in a large area encompassing approximately
10,000 square kilometres in uorthern Alberta since time immymorial. Since their
territory ie relatively inaccessible, they have, until recently, had little contact
with non-Indian society. Band members speak Cree as their primary language. Many
@o not epeak, read or write Euglish. The Band continues to maintain ita
traditional culture, religion, political structure and subsistence economy.
2.3 It is claimed that the Canadian Government, through the Indian Act of 1970 and
Treaty 8 of 21 June 1899 (concerning aboriginal land rights in northern Alberta),
recognised the right of the original inhabitants of that area to continue their
traditional way of life. Despite these laws and agreements, the Canadian
Government has allowed the provincial government of Alberta to expropriate the
territory of the Lubicon Lake Band for the benefit of private corporate interests
(e.g., leases for oi2 and gas exploration). In so doing, Canada is accused of
violating the Band's right to determine freely its political status and to pursue
its economic, social and cultural development, as guaranteed by article 1,
paragraph 1, of the Covenant. Furthermore, energy exploration in the Band's
territory allegedly entails a violation of article 1, paragraph 2, which grante all
peoples the right to dispose of their natural wealth and resources. In destroying
the environment and undermining the Band's economic base, the Band is allegediy
being deprived of its means to subsist and of the enjoyment of the right of
self-determination guaranteed in article 1.
3.1 The author states that the same matter has not heen submitted for examination
under another procedure of international investigation or settlement.
3.2 With respect to the exhaustion of domestic remedies, it is stated that the
Lubicon Lake Band hag been pursuing its claims through domestic political and legal
avenues. It 4s alleged that the domestic political and legal procese in Canada is
being used by government officials and energy corporation representatives to thwart
end delay the Band's actions until, ultimately, the Band becomes incapable of
pursuing them, because industrial development at the current rate in the area,
accompanied by the destruction of the environmental and economic base of the Band,
would make it impossible for the Band to survive as a people for many more years.
3.3 On 27 October 1975, the Band's representatives filed with the Registrar of the
Alberta (Provincial) Land Registration District a request for a caveat, which would
give notice to all parties dealing with the caveated land of their assertion of
aboriginal title, a procedure foreseen in the Provincial Land Title Act. The
Supreme Court of Alberta received arguments on behalf of the Provincial Government,
contesting the caveat, and on behalf of the Lubicon Lake Band. On
7 September 1976, the provincial Attorney General filed an application for a
postponement, pending resolution of a similar case; the app]ication was granted.
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On 25 March 1977, however, the Attorney General introduced in the provincial |
jegislature an amendment to the Land Title Act precluding the filing of caveats;
the amendment was passed and made retroactive to 13 January 1975, thus predating
the filing of the caveat involving the Lubicon Lake Band. Consequently, the
Supreme Court hearings were dismissed as moot.
3.4 On 25 April 1980, the members of the Band filed an action in the Federal Court
of Canada, requesting a declaratory judgement concerning their rights to their
land, its use, and the benefits of its natural resources. The clair was diemissed
on jurisdictional grounds against the provincial government and all energy
corporations except one (Petro-Canada). The claim with the federal Government and
Petro-Canada ag defendants was allowed to stand.
3.5 On 16 February 1982, an action was filed in the Court of Queen's Bench of
Alberta requesting an interim jnjunction to halt development in the area until
iseues raised by the Band's land and natural resource claims were settled. The
main purpose of the interim injunction, the author states, was to prevent the
Alberta government and the oil companies (the "defendants") from further destroying
the traditional hunting and trapping territory of the Lubicon Lake people. This
would have permitted the Band members to continue to hunt and trap for their
livelihood and subsistence as a part of their aboriginal way of life. The
provinoial court did not render its decision for almost two years, during which
time oi] and gas development continued, along with rapid destruction of the Band's
economic base. On 17 November 1983, the request for an interim injunction was
denied and the Band, although financially destitute, was subsequently held liable
for all court costs and attorneys’ fees associated with the action.
3.6 The decision of the Court of Queen's fench was appealed to the Court of Appeal
of Albertay it was dismissed on 11 January 1985. In reaching ite decision, the
Court of Appeal agreed with the lower court's finding that the Band's claim of
aboriginal title to the land presented a serious question of law to be decided at
trial. None the less, the Court of Appeal found that the Lubicon Lake Band would
suffer no irreparable harm if resource development continued fully and that the
balanve of convenience, therefore, favoured denial of the injunction.
3.7 The author states that the defendants attempted to convince the Court that the
Lubicon Lake Band has no right to any possession of any sort in any part of the
eubject lands, which, logically, included even their homes. In response, the Court
pointed out that any attempt to force the members of the Lubicon Lake Band from
their dwellings might indeed prompt interim relief, as would attempts to deny, them
access to traditional burial grounds or other special places, or to hunting and
trapping areas. In its complaint, the Band alleged denial of access to all of
these areas, supporting its allegations with photographs of damage and with several
uncontested affidavits. Yet, the Court overlooked the Band's evidence and
eoncluded that the Band had failed to demonstrate that such action had been taken
or indeed threatened by the defendants.
3.8 The author further states that the legal basis for the Court of Appeal's
decision was its own definition of irreparable injury. This test was: injury that
is of euch a nature that no fair and reasonable redress may be had in a court of
law and that to refuges the injunction would be a denial of justice. The author
submits that the Lubicon Lake Band clearly met this test by demonstrating, with
unconteated evidence, injury to their livelihood, to their subsistence economy, to
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their culture and to their way of life ne a social and political entity. Yet, the
Court found that the Band had not demonstrated irreparable harm.
3.9 On 18 February 1985, the Band presented arguments to a panel of three judges
of the Supreme Court of Canada, requesting leave to appeal from the judgement of
the Alberta Court of Appeal. On 14 March 1985, the Supreme Court of Cana’. refused
leave to appeal. Generally, the author states, the criteria for granting leave to
appeal are: whether the questions presented are of public importance, whether the
case contains important issues of law or whether the proceedings are for any reason
of such a nature or significance as to warrant 1 decision by the Supreme Court of
Canada. He states that the issues presented by the Lubicon Lake Band involved such
questions as the interpretation of the constitutional rights of aboriginal peoples,
the existence of which was recently confirmed by the Constitution Act, 1982; the
remedies available to aboriginal peoples) the rights of aboriginal peoples to carry
out traditional subsistence activities in traditional hunting and trapping grounds;
the legal régime applicable to a large area of land in northern Alberta; conflicts
between Canada's traditional, land-based societies and its industrial society;
public interests and minority interests; the competing rights of public authorities
and individuals; considerations of fundamental and equitable justice; equality
before the law; and the right to equal protection azd benefit of the law. The
author submits that at least the first four questions have not yet been adjudicated
by the Supreme Court of Canada and that they undeniably fall within the criteria
for granting leave to appeal.
4. By decision of 16 October 1984, the Working Group of the Human Rights
Committee transmitted the communication under rule 91 of the rules of procedure to
the State party, requesting information and observations relevant to the question
of the admissibility of the communication. The main points reflected in the
invormation and observations received from the State party are set out in
paragraphs 5.1 to 5.7 and 6.1 to 6.4 below.
Exhaustion of domest’.c remedion
5.1 In its submission dated 31 May 1985, the State party contends that the Lubicon
Lake Band has not pursued to completion domestic remedies commenced by it and that
responsibility for any delays in the application of such remedies does not lie with
the Government of Canada. The State party recalls that the Lubicon Lake Band,
suing in ite own legal right, and Chief Bernard Ominayak, suing in his personal
capacity, and with other Band councillors in a representative capacity, nave
initiated three different legal procedures and pointe out that only the litigation
concerning the caveat filed by the Band has been finally determined. ‘fwo other
legal actions, one in the Federnl Court of Canada and one in the Alberta Court of
Queen's Bench, were said to be still pending.
5.2 With regard to the Federal Court action referred to in the communication, the
State party recalls that the Band and ite legal advisers, in April 1980, sought to
sue the Province of Alberta and private corporations in proceedings in the Federal
Court of Canada. It is submitted that in the circumstances of this case, neither
the province nor private entities could have been sued as defendante in the Federal
Court of Canada. Rather than reconstitute the procoedings in the proper forum, the
State party submits, the Band contested interlocutory proceedings brought by the
defendants concerning the issue of jurisdiction. These interlocutory proceedings
resulted in a determination against the Band in November 1980. An appeal by the
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Band from the decision of the Federal Court of Canada was dismissed by the Federal
Court of Appeal in May 1981.
5.3 Following the interlocutory proceedings relating to the jurisdiction of the
Federal Court, a new action was instituted on 21 February 1982 against the province
and certain corporate defendants in the Court of Queen's Bench of Alberta. As
indicated in the communication, the Band sought an interim injunction. In
November 1983, after extensive proceedings, the Band's interim application was
dismissed by the Court of Queen's Bench based on the case of
Adjustments Ltd. (1980) 6 W.R.R, 188, which set out the criteria that must be
present for a court to grant an interim injunction. Pursuant to that case, an
applicant for an interim injunction must establish:
(a) That there exists a serious issue to be tried;
(b) That irreparable harm will he suffered prior to trial if no injunction is
granted;
(c) That the balance of convenience between the parties favours relief to the
applicant.
The State party points out that the Alberta Court denied the Band's application on
the grounds that the Band had failed to prove irreparable harm and that it could be
adequately compensated in damages if it was ultimately successful et trial.
5.4 Rather than proceed with a trial on the merits, the Band appealed against the
dismissal of the interim application. Its appeal was dismissed by the Alberta
Court of Appeal of 11 January 1985. The Band's application for leave to appeal the
dismissal of the interim injunction to the Supreme Court of Canada was refused on
14 March 1985. Almost two months later, on 13 May 1985, the State party adds, the
Supreme Court of Canada denied ancther request by the Band that the Court bend its
own rules to rehear the application. Thus, the State party states, the Court
upheld its well-established rule prohibiting the rehearing of applications for
leave to appeal.
5.5 The State party submits that, after such extensive delays caused by interim
proceedings and the contesting of clearly settled procedural matters of law, the
author's claim that the application of domestic remedies is being unreasonably
prolonged has no merit. It submits that it has been open to the Band as plaintiff
to press on with the substantive steps in either of its legal actions so as to
bring the matters to trial.
Additional remedies
5.6 The State party submits that the term “domestic remedies", in accordance with
the prevailing doctrine of international law, should be understood as applying
broadly to all established municipal procedures of redress. Article 2,
paragraph 3 (b), of the Covenant, it states, recognises that in addition to
judicial remedies a State party to the Covenant can also provide administrative and
other remedies. Following the filing of its defence in the Federal Court action,
the federal Government proposed late in 1981 that the claim be settled by providing
the Band with reserve land pursuant to the treaty concluded in 1899. The
conditions proposed by the province (which holds legal title to the lands) were not
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acceptable to the Band and it accordingly rejected the proposed resclution of the
dispute.
5.7 The Band's claim to certain lands in northern Alberta, the State party
submits, is part of a complex situation that involves competing claims from several
other native communities in the area. In June 1980, approximately two months after
the Band commenced ite action in the Trial Division of the Federal Court, six other
native communities filed a separate land claim with the Department of Indian
Affairs asserting aboriginal title to lands that overlap with the property sought
by the Lubicon Lake Band's claim. Subsequently, in June 1983, the Big Stone Cree
Band filed a claim with the Department of Indian Affairs - this time claiming
treaty entitlement - to an area that also overlaps with land claimed by the Lubicon
Lake Band, The Big Stone Cree Band allegedly represents five of the native
communities that filed the Jane 1980 claim based on aboriginal title. To deal with
this very complex situation, in March 1985 the Minister of Indian and
Northern Affairs appointed a former judge of the British Columbia Supreme Court as
a special envoy of the Minister to meet with representatives from the Band, other
native communities and the province, to review the entire situation and to
formulate recommendations. The State party submits that consideration of the
Lubicon Lake Band's claim in isolation from the competing claims of the other
native communities would jeopardize the domestic remedy of negotiated settlement
selected by the latter.
Right of self-determination
6.1 The Government of Canada submits that the communication, as it pertains to the
right of self-determination, is inadmissible for two reasons. First, the right of
self-determination applies to a “people” and it is the position of the Government
of Canada that the Lubicon Lake Band is not a people within the meaning of
article 1 of the Covenant. It therefore submits that the communication is
incompatible with the provisions of the Covenant and, as such, should be found
inadmissible under article 3 of the Protocol. Secondly, communications under the
Optional Protocol can only be made by individuals and must relate to the breach of
a right conferred on individuals. The present communication, the State party
argues, relates to a collective right and the author therefore lacks standing to
bring a communication pursuant to articles 1 and 2 of the Optional Protocol.
6.2 As to the argument that the Lubicon Lake Band does not constitute a people for
the purposes of article 1 of the Covenant and it therefore is not entitled to
assert under the Protocol the right of self-determination, the Governmant of Canada
points out that the Lubicon Lake Band comprises only one of 582 Indian bands in
Canada and a small portion of a larger group of Cree Indians residing in
northern Alberta, It is therefore the position of the Government of Canada that
the Lubicon Lake Indians are not a "people" within the meaning of article 1 of the
Covenant.
6.3 The Government of Canada submits that while self-determination as contained in
article 1 of the Covenant is not an individual right, it provides the necessary
contextual background for the exercise of individual human rights. This view, it
contends, is supported by the following phrase from the Committee's general comment
on article 1 (CCPR/C/21/Add.3, 5 October 1984), which provides that the realisation
of self-determination is "an essential condition for the effective guarantee and
observance of individual human rights and for the promotion and strengthening of
those rights". This general comment, the State party adds, recognizes that the
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rights embodied in article 1 are set apart from, and before, all the other rights
in the Covenant on Civil and Political Rights and the Covenant on Economic, Social
and Cultural Rights. The rights in article 1, which are containud in part I of the
Covenant on Civ!1 and Political Rights are, in the submission of Canada, different
in nature and kind from the rights in part III, the former being collective, the
latter individual. Thus, the structure of the Covenant, when viewed as a whole,
further supports the argument that the right of self-determination is a collective
one available to peoples. As such, the State party argues, it cannct be invoked by
individuals under the Optional Protocol.
6.4 The Government of Canada contends that the Committee's jurisdiction, as
defined by the Optional Protocol, cannot be invoked by an individual when the
alleged violation concerns a collective right. It therefore contends that the
present communication pertaining to self-determination for the iLubicon Lake Band
should be dismissed.
7. In a detailed reply, dated 8 July 1985, te the State party's submission, the
author summarized his arguments as follows. The Government of Canada offers three
principal allegations in its response. It alleges, first, that ti » Lubicon Lake
Band has not exhausted domestic remedies. However, the Band has, in fact,
exhausted these remedies to the extent that they offer any meaningful redress of
its claims concerning the destruction of its means of livelihcod. Seconaly, the
Government of Canada alleges that the concept of self-determination is not
applicable to the Lubicon Lake Band. The Lubicon Lake Band is an indigenous people
who have maintained their traditional economy and way of life and have occupied
their traditional territory since time immemorial. At a minimum, the concept of
self-determination should be held to be applicable to these people as it concerns
the right of a people to their means of subsistence. Finally, the Government of
Canada makes allegations concerning the identity and status of the comnunicant.
The "communicant" is identified in the Band's original communication. The
"victims" are the membere of the Lubicon Lake Band, who are represented by their
unanimously elected leader, Chief Bernard Ominayak.
8.1 By interim decision of 10 April 1986, the Committee, recalling that the State
party had informed it that the Minister of Indian and Northern Affairs had
appointed a special envoy and given him the task to review the situation, requested
the State party to furnish the Committee with tho special envoy's report aud with
any information as to recommendations as well as measures which the State party had
taken or intended to take in that connection.
8.2 In the same decision the Committee requested the author to inform it of any
developments in the legal actions pending in the Canadian courts.
9.1 In his reply, dated 30 June 1986, to the Committee's interim decision, the
author claims that there has been no substantive progress in any of the pending
court proceedings. He reiterates his argument. that:
"The Band's rsquest for an interim injunction to halt the oil development, -
which has destroyed the subsistence livelihood of its people, was denied and
the Supreme Court of Canada refused to grant leave to appeal the denial ...
The development and the destruction, therefore, continue unabated. The Band's
attorney is continuing to pursue the claims through the courts despite the
fact that the Band is unable to provide financial support for “he effort and
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that there is no possible hope of resolution for the nezt several years.
Therefore, the Band has no basis for altering its previous conclusion that,
for all practical purposes, its domeatic judicial remedies have been
exhausted."
9.2 The Band also points out that the Federal Government's special envoy,
Mr. E. Davie Fulton, was relieved of his responsibilities following the submission
of his "discussion paper".
"In the discussion paper ... Mr. Fulton reached much the same conclusion as
the Band itself, that the Canadian Government must bear the blame for the
situation at Lubicon Lake and that the resolution of the probiem is up to the
Federal Government. His report also suggested a land settlement based on che
Band's current population and recognised the importance of providing the Band
with wildlife management authority throughout ita hunting and trapping
territory. The land settlement proposed by Mr. Fulton, which would result in
a reserve significantly larger than the 25 square mile reserve the Band was
promised in 1940, is consistent with the position of the Ba:d@ with regard to
thie issue ... Mr. Fulton also recommended that Alberta compensate the Band
for damage caused by the unrestricted oil and gas deveiopment for which it has
issued leases within the Band's territory. In addition to relieving
Mr. Fulton of his responsibility in the matter, the Federal Government, to
date, has refused to make his discussion paper public."
10.1 In its reply to the Committee's interim decision, dated 23 June 1986, the
State party forwarded the text of Mr. Fulton's report and noted that it had
appointed Mr. Roger Tassé to act as negotiator. Furthermore, it informed the
Committee that on 6 January 1986 the Canadian Government had made sn ex gratia
payment of $1.5 million to the Band to cover legal and other related costs.
10.2 In a further submission of 20 January 1987, the State party argues that
following the rejection of the Band's application for an interim injunction:
"The Band should then have taken steps with all due speed to seek its
permanent injunction before seeking international zecourse. The Band alleges
in ita submission ... that the delay in the litigation will cause it
irreparable harm. Its action for a permanent intunction would, if successful,
permanently prevent that harm."
11.1 In submissions dated 23 and 25 February 1987, the author discussed,
dnoter alia, matters of substance, such as the Fulton discussion paper, and argued
that "Canada has abandoned key recommendations contained in the Fulton discussion
paper”, and that “Canada is attempting retroectively to subject the Band to a law
which this Committee has held to be in violation of article 27 of the International
Covenant on Civil and Political Rights and which Canada amended in accordance with
the findings of this Committee".
11.2 With regard to the pending litigecion proceedings, the Band contends that a
permanent injunction would not constitute an effective remedy because it would come
too late, explaining that:
"The recognition of aboriginal rights or even treaty rights by a final
determination of the courts will not undo the irreparable damage to the
society of the Lubicon Lake Band, will not bring back the animals, will not
restore the environment, will not restore the Band's traditional economy, will
not replace the destruction of their traditional way of life and will not
repair the damages to the spiritual and cultural ties to the land. ‘The
consequence is that all domestic remediea have indeed been exhausted with
respect to the protection of the Band's economy as well as its unique,
valuable and deeply cherished way of life."
12. In a further eubmission, dated 12 June 1987, the author states that:
"The Lubicon Lake Band is not requesting a territorial rights decision.
Rather, the Band requests only that the Human Rights Committee assist it in
attemptinc to convince the Government of Canada that:
“(a) The Band's existence is seriously threatened by the oi] and gas
development that has been allowed to proceed unchecked on their traditional
hunting grounds and in complete disregard for the human community inhabiting
the area)
"(b) Canada is responsible for the current state of affairs and for
co-operating in their resolution in accordance with article 1 of the Optional
Protocol to the International Covenant on Civil and Political Rights."
13.1 Before considering a communication on the merits, the Committee must
ascertain whether it fulfils all conditions relating to its admissibility under the
Optional Protocol.
13.2 With regard to the requirement, in article 5, paragraph 2 (b), of the
Optional Protocol, that authors must exhaust domestic remedies before submitting a
communication to the Human Rights Committeu, the author of the present
communication had invoked the qualification that this requirement should be waived
“where the application of the remedies is unreasonably prolonged". The Committee
noted that the author had argued that the only effective remedy in the
circumstances of the case was to seek an interim injunction, because "without the
preservation of the status quo, a final judgement on the merits, even if favourable
to the Band, would be rendered ineffectual", in so far as "any final judgement
recognizing aboriginal rights, or alternatively treaty rights, [could] never
restore the way of life, livelihood and means of eubsisteuce of the Band".
Referring to its established jurisprudence that “exhaustion of domestiu remedies
can be required only to the extent that these remedies are effective and
available", the Committee found that, in the circumstances of the case, there were
no effective remedies still available to the Lubicon Lake Band.
13.3 With regard to the State party's contention that the author's communication
pertaining to self-determination should be declared inadmissible bect \se "the
Committee's jurisdiction, as defined by the Optional Protocol, cannot be invuked by
an individual when the alleged violation concerns a collective right", the
Committee reaffirmed that the Covenant recugnizes and protects in most resolute
terms a people's right of self-determination and its right to dispose of its
natural resources, as an essential condition for the effective guarantee and
observance of individual hunan rights and for the promotion and strengthening of
those rights. However, the Committee observed that the author, as an individual,
could not claim under the Optional Protocol to be a victim of a violation of the
right of self-determination enshrined in article 1 of the Covenant, which deals
with rights conferred upon peoples, as such.
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13.4 The Committes noted, howaver, that the facte as submitted might raise isaues
under other articles of the Covenant, including article 27. Thus, in so far as the
author and other membera of the Lubicon Lake Band were affected by the events which
the author has described, these issues should be exemined on the merits, in order
to determine whether they reveal violations of article 27 or other articles of the
Covenant,
14. On 22 July 1987, therefore, the Human Rights Committee decided that the
communication was admissible in so far as it might raise iesues under article 27 or
other articles of the Covenant. The State party was raquested, under rule 86 of
the rules of procedure, to take interim measures of protection to avoid irreparable
damage to Chief Ominayak and other members of the Lubicon Lake Bard.
15. In its submission under article 4, paragraph 2, dated 7 October 1987, the
State party invokes rule 93, paragraph 4, of the Committe::‘s provisional rules of
procedure and requeste the Committee to review its decision on admissibility,
submitting that effective domestic remedies have not been exhausted by the Band.
it observes that the Committee's decision appears to be based on the aseunptio
that an interim injunction would be the only effective remedy to address the
alleged breach of the Lubicon Lake Band‘s rights. This agsumption, in ite op. -‘on,
Goes not withstand close scrutiny. The State party submits that, based on the
evidence of the Alberta Court of Queen's Bench and the Court of Appeal - the two
courts which had had to deal with the Band's request for interim relief - as well
as the socio-economic conditions of the Band, its way of life, livelihood and means
of subsistence have not been irrepsrably damaged, nor are they under imminent
threat. Accordingly. it is submitted that an interim injunction is not the only
effective remedy available to the Band, and that a trial on the merits and the
negotiation process proposed by the Federal Government constitute both effective
and viable alternatives. The State party reaffirms its position that it has a
right, pursuant to article 5, paragraph 2 (b), of the Optional Protocol, to insist
that domestic redress be exhausted before the Committee considers the matter. tt
claime that the terms “domestic remedies”, in accordance with relevant principles
of international law, must be understood as applying to all established local
procedures of redress. As long as there has not been a final judicial
Getermination of the Band‘s rights under Canadian lew, there is no basis in fact or
under international law for concluding that domestic redress is ineffective. uor
for declaring the communication admissible under the Optional Protocol. In support
of ite claims, the State party provides a detailed review of the proceedings before
the Alberta Court of Queen's Bench and explains ite long-starding policy to seek
the resolution of valid, outstanding land claims by Indian Bands through
negotiation.
16.1 Commenting on the State party's submission, the author, in a letter dated
12 January 1988, maintains that his and the Lubicon Lake Band's allegations are
well founded. According to Chief Ominayak, the State party bases ite request for a
review of the decision on admissibility on a mere restatement of the facts and is
seeking to have the Committee reverse ite decision under the guise of
subatentiation of its previous submissions, without adducing any new grounds.
Recalling the Committee‘s statement that the communication is admissible in go far
as it raises issues under article 27 “or other articles of the Covenant", the
author spelle out which articles of the Covenant he conridere to have been
violated. First, he claims that Canada has violated article 2, paragraphs 1 to 3,
of the Covenant: paragraph 1, because the State party has treated the Lubicon Lake
Band without taking into consideration elements of a social, economic and property
nature inherent in the Band's indigenous community structure; paragraph 2, because
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it ie said to continue to refuse to solve some issues complained of by the Band for
which there remain means of redress; and paragraph 3, because it is said to have
failed to provide the Band with an effective remedy with regard to ite righte under
the Covenant.
16.2 The author further alleges that the State party, through actions affecting
the Band's livelihood, has created a situation which “led, indirectly if not
directly, to the deaths of 21 persons and [is) threatening the lives of virtually
every other member of the Lubicon community. Moreover, the ability of the
community to [survive] is in serious doubt as the number of miscarriages and
stillbirths has skyrocketed and the number of abnormal births ... has gone from
near sero to near 100 per cent". This, it is submitted, constitutes a violation of
article 6 of the Covenant. Furthermore, it is claimed that the appropriation of
the Band's traditional lands, the destruction of its way of life and livelihood. and
the devastation wrought to the community constitute cruel, inhuman and degrading
treatment within the meaning of article 7 of the Covenant for which the State party
must be held accountable.
16.3 The author raises further questions about the state party's compliance with
articles 14, paragraph 1, and 26, of the Covenant. He recalls that the domestic
court proceedings instituted by the Lubicon Laxe Band, founded on aboriginal rights
and title to land, challenge certain of the State's asserted powers and
jurisdiction, which he contends are "inherently susceptible to precisely the types
of abuses that articles 14, paragraph 1, and 26 are intended to guard against". In
this context, he claims that “the bias of the Canadian courts has presented a major
obstacle to the Band's attempt to protect its land, community and livelihood, and
that the courts' biases arises from distinctions based on race, political, social
and economic status". He further claims that the economic and social biases the
Band has been confronted with in the Canadian courts, especially in the provincial
court system in Alberta, have been greatly magnified by the "fact that several of
the judges rendering the decisions of these courts have had clear economic and
perronal ties to the parties opposing the Band in the actions".
16.4 In addition to the above, it is submitted that in violation of articles 17
and 23, paragraph 1, of the Covenant, the State party has permitted the members of
the Lubicon Lake Band to be subjected to conditions that are leading to the
destruction of the families and the homes of its members. The author explains that
in an indigesous community, the entire family system is predicated upon the
spiritual and cultural ties to the land and the exercise of traditional
activities. Once these have been destroyed, as in the case of the Band, the
essential family component of the society is irremediably damaged. Similarly, it
is alleged that the State party has violated article 18, paragraph 1, of the
Covenant since, as a consequence of the destruction of their land, the Band members
have been "robbed of the physical realm to which their religion - their spiritual
belief system - attaches".
16.5 With respect to the requirement of exhaustion of domestic remedies, the
author rejects the State party's assertion that a trial on the merits would offer
the Band an effective recourse against the federal Government and redress for the
loss of its economy and its way of life. First, this assertion rests upon the
assumption that past human righte violations can be rectified through compensatory
payments; secondly, it is obvious that the Band's econony and way of life have
suffered irreparable harm. Furthermore, it is submitted that a trial on the merits
is no longer available against the federal Government of Canada since, in
-11-
October 1986, the Supreme Court of Canada held that aboriginal land rights within
provincial boundaries involve provincial laud rights and must therefore be
adjudicated before the provincial courts. It wae for that reason that, on
30 March 1987, the Lubicon Lake Band applied to the Alberta Court of Queen's Bench
for leave to amend its statement of claim before that court so as to be able to add
the federal Goverament as a defendant. On 22 October 1987, the Court of Queen's
Bench denied the application. Therefore, despite the fact that the Canadian
Constitution vests exclusive jurisdiction for all matters concerning Indians and
Indian lands in Canada with the federal Government, it is submitted that the Band
cannot avail itself of any recourse against the federal Government on issues
pertajaing to these very questions.
17.1 %In a submission dated 3 March 1988, the State party submits that genuine and
serious efforts continue to be made with a view to finding an acceptable solution
to the issues raised by the autaor and the Band. In particular, it explains that:
“On 3 February 1988, the Minister of Indian Affaire and Northern
Development delivered to the Attorney General of Alberta a formal request for
reserve land for the Lubicon Lake Band. In this request, he advised Alberta
that a rejection of the request would require Canada to commence a legal
action, pursuant to the Constitution Act, 1930, to resolve the dispute as to
the quantum of land to which the Lubicon Lake Band is entitled. In any
event, the Minister of Indian Affairs ai 4 Northern Development asked Alberta
to consider, as an interim measure, the immediate transfer to the Band of
25.4 square miles of land ... without prejudice to any legal action.
"By letter dated 10 February 1988, the federal negotiator advised counsel
for the Band of the above developments and, as well, sought to negotiate all
aspects of the claim not dependent on Alberta's response to the formal
request ... The communicant, by letter dated 29 February 1988, rejected this
offer, but indicated that he would be prepared to consider an interim
transfer of 25.4 square miles wit .out prejudice to negotiations or any court
actions. As a congequertce of the above developments, negotiators for the
federal and provincial Governments met on 1 and 2 March 1988 and concluded an
interim agreement for the transfer of 25.4 square miles as reserve land for
the Band, including mines and minerals. This agreement is without prejudice
to the positions of all parties involved, including the band ..."
17.2 With respect to the effectiveness of available domestic remedies, the State
party takes issue with the author's submission detailed in paragraph 16.5 above,
which it claims seriously misrepresents the legal situation as it relates to the
Band and the federal and proviucial Governments. It reiterates that the Band has
inetituted two legal actions, both of which remain pending: one in the Federal
Court of Canrda against the federal Government; the other in the Alberta Court of
Queen’. Bench against the province and certain private corporations. To the extent
that the author's claim for land is based on aboriginal title, as opposed to treaty
entitlement, it is established case law that a court action must be brought against
the provirre and not the federal Government.
17.3. The State party adds that in the action brought before tne Alberta Court of
Queen’s Bench:
“The communicant sought leave to add the federal Government as a party to
the legal proceedings in the Alberta Court of Queen's Bench. The Court there
-12-
Oe
held that, based on existing case law, a provincial court is without
jurisdiction to hear a claim for relief against the federal Government)
tather, this is a matter properly brought before the Federal Court of Canada.
The plaintiff has in fact done this and the action is, as already indicated,
currently pending. Therefore, recourse against the Government of Canade is
still available to the Band, as it has always been, in the Federal Jourt of
Canada. Moreover, the communicant has appealed the decision of the Court of
Queen's Bench to the A)berta Court of Appeal".
17.4 Finally, the State party categorically rejects most of the author's
allegations detailed in paragraphs 16.2 and 16.3 above as unfounded and
unsubstantiated; it submite that these allegations constitute an abuse of process
that should result in the dismissal of the communication pursuant to article 3 of
the Optional Protocol.
18.1 In a further submission dated 26 March 1988, the author comments on the State
party's overview of recent devalopments in the case (see para. 17.1) and adds the
following remarks: (a) the Lubicon Lake Band was not a party to the negotiation of
the settlement offer; (b) the settlement offer rests on a "highly prejudicial” view
of the Band's rights under Canadian luw and an equally prejudicial determination of
Band membership; (c) the federal Government would negotiate non-land issues such as
housing with fewer than half of the Band members; (d) Canada has leased all but
25.4 square miles of the Band's traditional lands for development, in conjunction
with a pulp mill to be constructed by the Daishowa Canada Company Ltd. near Peace
River, Alberta) (e) the Daishowa project frustrates any hopes of the continuation
of some traditional activity by Band members; and (f) the Parliamentary Standing
Committee on Aboriginal Affairs, the oversight committee of the Canadian Parliament
with respect to such matters, does not support the approach to negotiated
settlement being taken by the Minister of Indian Affairs and Northern Development.
18.2 The author reaffirms that the essential part of the court actions initiated
by the Band relates to aboriginal rights claims and that, with the decision of the
Alberta Court of Queen's Bench of 22 October 1947 and in the light of recent
Supreme Court decisions referred to by the State party, the Band continues to be
denied redress against the federal Government.
18.3 The author further rejects the State party's contention that the claims made
in hig submission of 12 January 1988 are unsubstautiated and unfounded and
constitute an abuse of the right of submiasion) he reaffirms his readiness to
furnish detailed information on the "21 unnatural deaths resulting directly or
indirectly from the destruction of the traditional Lubicon economy and way of
life". Finally, he points out that tho State party continues to disregard the
Committee's request for interim measures of protection pursuant to rule 86 of its
rules of procedure, as evidenced by Canadian backing of the Daishowa paper mill
project. This means that far from adopting interim measures to avoid irreparable
harm to tLe Band, Canada has endorsed a project that would contribute to the
further degradation of the Band's traditional lands.
19.1 In another submission dated 17 June 1988, the State party points to further
Gevelopments in the case and re-emphasises that effective remedies continue to be
open to the Lubicon Lake Band. It explains that, since 11 March 1988, the date of
the Band's refusal of the Government's interim offer to transfer to it
25.4 square miles of reserve land, discussions:
-13~
“have taken place between the federal Government, the Province of Alberta and
the communicant. However, virtually no progress was made towards settlement.
As a consequence, on 17 May 1988, the federal Government initiated legal
proceedings againat the Province of Alberta and the Lubicon Lake Band in order
to enable Canada to meet its lawful obligations to the Band under Treaty 8.
The Statement of Claim, commencing the legal action, aske the Court of Queen's
Bench of Alberta for a declaration that the Lubicon Lake Band is entitled to a
reserve and a determination of the sise of the reserve. ... On 9 June 1988 the
Lubicon Lake Band filed a Statement of Defence and Counterclaim. On
10 June 1988, all parties to the dispute appeared before Chief Justice Moore
of the Alberta Court of Queen's Bench and agreed that best efforts should be
made to expedite this case with a preliminary trial date to be set on
16 January 1989."
19.2 The State party accepts its obligation to provide the Lubicon Lake Band with
a reserve pursuant to Treaty 8. It argues that the issue that forms the basis of
the domestic dispute, as well as the communication under consideration, concerne
the amount of land to be set aside as a reserve and related issues. As such, the
State party acserta that the communication does not properly fall within any of the
provisions of the Covenant and cannot therefore form the basis of a violation.
20.1 In a submission dated 5 July 1988, the author furnishes further information
and comments on the State party's submission of 17 June 1988. He identifies "many
problems" inherent in the court action initiated by the federal Government against
the provincial government in the Alberta Court of Queen's Bench. Among these are:
(a) the purported fact that it ignores the Band's aboriginal land claim; (b) ths
fact that it seeks a declaratory judgement with respect to Band membership
“apparently based on the unique and highly controversial approach to determination
of Band membership that has been discussed in previous submissions") and (c) the
fact that much of the substance of the issues addressed are already before the
courts in the Band's pending actions. The author notes that since "the action wag
filed in the lowest court in Canada, and will entail subpoena of an argument over
the extremely lengthy and complex Lubicon genealogical study, as well as appeals
from any decision rendered, there is no basis for believing that the action will do
anything but delay indefinitely [the] resolution of the Lubicon land issues". The
author believes that the Government's action is intended to have precisely this
effect.
20.2 By letter dated 28 October 1988, the author informs the Committee that on
6 October 1988, the Lubicon Lake Band asserted jurisdiction over its territory. he
explains that this action wae the result of the federal Government's failure to
contribute to a favourable solution of the Band's problems. He adds that the State
party has continuously delayed action on the issue, accusing it of “practicing
deceit in the media and dismissing advisors who recommend any resolution favourable
to the Lubicon people. At the same time the Band has wocched the Province of
Alberta continue to grant leases for oi1 and gas development and now for timber
development on the Lubicons' traditional lands ...".
20.3 The author further observes that the action of th: Lubicon Lake Band has
resulted in:
"a positive response from the Alberta provincial government. Alberta
Premier Don Getty negotiated an agreement with Chief Ominayak whereby Alberta
will offer to sell to the Federal Government 79 square miles of land with
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surface and subsurface rights, to be designated as a reserve for the benefit.
of the Lubicon Lake Band. The province has agreed to sell an additional
16 square miles of land to the federal Government with surface rights only,
and to make subsurface development on such land subject to Band approval.
Thus the total area agreed to by the province is J5 square miles, the amount
to which the Band is entitled, based on its present membership, under Canadian
federal Indian law. ... The federal Government has astated that it is willing
to consider the transfer of 79 square miles of land for the benefit of the
Lubicon people. However, it has refused to accept the remaining
16 square miles, recommending that such land be transferred to the Band to be
held in free title. The effect of this would be to subject the land in
question to taxation and alienation, while reducing the level of federal
obligation to the Lubicon people ..."
21.1 Ina further submission dated 2 February 1989, the State party observes that
in November 1988, following an agreement between the provincial government of
Alberta and the Lubicon Lake Band to set aside 95 square miles of land for a
reserve, the federal Government initiated negotiations with the Band on the
modalities of the land transfer and related issues. During two months of
negotiations, consensus was reached on the majority of issues, including Band
membership, sise of the reserve, community construction and delivery of programmes
and services. No agreement could, however, be found on the issue of cash
compensation and on 24 January 1989 the Band withdrew from the negotiations when
the federal Government presented its formal offer.
21.2 After reviewing the principal features of its formal offer (transfer to the
Band of 95 square miles of reserve land; the acceptance of the Band's membership
calculation) the setting aside of 8C 34 million for community development projects;
the granting of $C 2.5 million per year of federal support programmes; the proposal
of a special development plan to assist the Band in establishing a viable economy
on ite new reserve; and the establishment of a $C 500,000 trust fund to assist Band
elders wishing to pursue their traditional way of life), the State party observes
that the Government's formal overall offer amounts to approximately $C 45 million
in benefits and programmes, in addition to a 95 square mile reserve. The Band has
claimed additional compensation of between $C 114 million and 8C 275 million for
alleged lost revenues. The State party has denied the Band's entitlement to such
sums but has advised it that it is prepared to proceed with every aspect of its
offer without prejudice to the Band's right to sue the fede-al Government for
additional compensation.
21.3 The State party concludes that its most recent offer meets two tests of
fairness, namely: that it is consistent with other recent settlements with native
groups, and that it addresses the legitimate social and economi: objectives of the
Band. It adde that the community negotiation process must be considered as a
practical vehicle and opportunity for Indian communities to increase their local
autonomy and decision-making responsibilities. The federal policy provides for
negotiations on a wide range of issues, such as government institutions,
membership, accountability, financial arrangements, education, health services and
social development. Based on the above considerations, the State party requests
the Committee to declare the communication inadmissible on the grounds of failure
to exhaust all available domestic remedies.
~15-
22.1 Ina further submission dated 22 March 198%, the author takes issue with the
State party's submission of 2 February 1989, characterising it as not only
misleading but virtually entirely untrue. He alleges that revent negotiations
between the Lubicon Lake Band and the federal Government did not, on the
Government's side, "in any way represent a serious attempt at settlement of the
Lubicon issues". Rather, he submits, the Government's “formal offer" was an
exercise in public relations, which committed the Federal Government to virtually
nothing. It is submitted that the offer, if accepted, would have stripped the
community's members of any legal means of redressing their eituation.
22.2 In substantiation of these allegations, the author argues that the
Government's "formal offer" contains no more than a commitment to provide housing
and a school. On the other hand, it lacks "any commitment to provide the
facilities and equipment necessary for the Lubicon people to manage their own
affairs, such as facilities for essential vocational training, support for
commercial and economic development, or any basis from which the Band might achieve
financial independence”. It is further submitted that contrary to the State
party's statement that an agreement had been reached on the majority of issues for
which the Band seeks a viable solution, including membership, reserve size and
community construction, no agreement or consensus had been reached on any of these
issues. Furthermore, the author argues that while the State party has claimed that
its offer would amount to approximately $C 45 million in benefits and programmes,
it has failed to indicate that the majority of these funds remain uncommitted and
that without adequate means of legal redress the Lubicon Lake Band would be
incapable of seeking to obtain any future commitments from the Government.
23.1 By submission of 30 May 1989, the author recalle that the Band has been
pursuing ite domestic claime through the Canadian courts for over 14 years, and
that the nature of the claims and the judicial process involved is bound to draw
out these proceedings for another 10 years. He submits that the State party does
not dispute that court actions and negotiat:ions undertaken to ensure the Band's
livelihood have produced no results, and that court proceedings addressing the
issues of land title and compensation would take years in resolution, if resolution
ever occurred. It is pointed out that following the Band's refusal to endorse a
settlement offer, which would force the Baad to relinguish all rights to legal
action involving a controversy with the State party in exchange for promises of
future discussione between Canadas and the Band, Canada terminated the
negotiations. The author adds that: "Rather than continuing to seek a course of
compromise and settlement, Canada has sent agents into non-native communities of
northern Alberta, in the area immediately surrounding the traditional Lubicon
territory." Working through a single individual who is said to retain some ties
with the Band but who hae not lived in the community for 40 years, these agents are
said to try to induce other native individuals to strike their own private deals
with the federal Government. Most of tho individuals identified by the agents do
not appear to be affiliated with any recognised aboriginal society.
23.2 In substantiation of earlier allegations, the author explains that the Band's
loss of its economic base and the breakdown of its social institutions, including
the transition from a way of life marked by trapping and hunting to a sedentary
exietence, has led to a marked deterioration in the health of the Band members:
"ss. the diet of the people has undergone dramatic changes with the loss of
their game, their reliance on less nutritious processed foods, and the spectre
of alcoholism, previously unheard of in this community and which is now
-16-
overwhelming it. ... As a result of these drastic changes in the community's
physical existence, the basic health and resistance to infection of community
members hae deteriorated dramatically. The lack of running water and sanitary
facilities in the community, needed to replace the traditional systems of
water and sanitary management, ... is leading to the development of diseases
associated with poverty and poor sanitary and health conditions. This
situation is evidenced by the astonishing increase in the number of abnormal
births and by the outbreak of tuberculosis, affecting approximately one third
of the community."
24.1 In a submission dated 20 June 1989, the State party concedes "that the
Lubicon Lake Band has suffered a historical inequity and that they are entitled to
a reserve and related entitlements". It maintains, however, that it has made
offers to the Band which, if accepted, would enable the Band to maintain its
culture, control its way of life and achieve economic self-sufficiency, and that
ite offer would provide an effective remedy to the violations of the Covenant
alleged by the Band. However, a remedy of this nature cannot be imposed on the
Band. The State party recalls that negotiations between the Lubicon Lake Band and
senior government officials took place from November 1988 to January 1989; during
the autumn of 1988, Chief Ominayak also met with the Prime Minister of Canada. It
ie submitted that the State party met virtually every demand of the author, either
4n full or to such an extent that equal treatment with other indigenous groups in
Canada was approximated or exceeded. Thus, 95 square miles of land, mineral rights
over 79 square miles, community facilities for each family living on the reserve,
control over membership and an economic self-sufficiency package were offered in
full to the Band. On the basis of a total of 500 Band members and a government
package worth $C 45 million (non-inclusive of mineral and land rights), this offer
amounted to $C 90,000 per person or almost $C 500,000 for each family of five. A
number of the Band's demands, such as a request for an indoor ice arena or a
swimming pool, were refused.
24.2 According to the State party, the major remaining point of contention between
the federal Government and the Band is a claim by the Band for $C 167 million in
compensation for economic and other losses allegedly suffered. In an endeavour to
permit the resolution of the matters agreed on between the parties, the federal
Government put forth a proposal that would enable the Band to accept the State
party's offer in ite entirety, while continuing to pursue their general claim for
compensation in the Canadian courts. The State party rejects the contention that
“virtually all items of any significance" in its offer “were left to future —
discussions", and contends that most of the Band's claims for land, mineral rights,
community facilities, control over membership and an economic self-sufficiency
package have been agreed to by the Government. Finally, the State party rejects
the allegation that it negotiated in bad faith.
24.3 On procedural grounds, the State party indicates that, since the Committee's
decision on admissibility, no clarifications have been put forward by the Committee
to enable the State party to address specific allegations of violations of the
Covenant. It therefore maintains that the proceedings have not progressed from the
ndmissibility stage. It further submits that by acting within its jurisdiction and
procedure, the Committee shouid (a) issue a ruling pursuant to rule 93,
paragraph 4, indicating the outcome of its reconsideration of admissibility; (b) if
finding the communication admissible, stipulate the articles and the evidence on
which the finding is based; and (c) provide the federal Government with a six-month
period during which to file ite ohservations on the merits.
-17-
25. By interlocutory decision of 14 July 1989, the Human Rights Committee invited
the State party to submit to the Committee any further explanations or statements
relating to the substance of the author's allegations, in addition to its earlier
submissions, not later than by 1 September 1989. The State party was again
requested, pursuant to rule 86 of the rules of procedure and pending the
Committee's final decision, to take measures to avoid damage to the author and the
members of the Lubiccna Lake Band.
26.1 In ite reply to the interlocutory decision, dated 31 August 1989, the State
party asserts that it is being denied due process, since the principles of natural
justice require that a party be aware of the specific charge and evidence on which
the accusations of the author of the communication are based. It claims that since
it was never informed of the articles of the Covenant and the evidence in respect
vf which the communication was declared admissible, the principles of procedural
fairness have not been respected, and that the federal Government remains
prejudiced in its ability to respond to the Band's claim.
26.2 In respect of the alleged violations of articles 14, paragraph 1, and 26, the
State party rejects as "totally unfounded" the claim that it failed to provide the
Band with an independent and impartial tribunal for the resolution of its claims:
the long tradition of impartiality and integrity of Canadian courte includes
numerous cases won by aboriginal litigants. It is submitted that the Band has
failed to adduce any evidence that would indicate that the judiciary acted any
differently in proceedings concerning the Lubicon Lake Band. Furthermore, the
State party claims that the responsibility for major delays in the resolution of
the Band's court actions lies largely with the Band itself. Not only did the Band
fail to take the necessary steps to move any of the actions it initiated forward
and refuse to co-operate with the federal Government in the action it had initiated
in an effort to resolve the matter, but, in addition, on 30 September 1988, the
Band declared that it refused to recognise the jurisdiction of the Canadian courts,
thus undermining any attempt to obtain a resolution through the judicial process.
26.3 The State party provides a detailed outline of the chronology of the judicial
proceedings in the Band's case. Three court actions in respect of the Band remain
outstanding. The first of these was initiated by the Band in the Federal Court of
Canada against the federal Government. This action has not moved forward
since 1981 although, according to the State party, it was the Band's responsibility
to take the next step in this suit. The second action was initiated by the Band in
the Alberta Court of Queen's Bench against the province and some private
corporations. After the Band was denied an interim injunction in 1985, it did not
take substantive steps in the proceedings and abandoned its appeal against the
Court's refusal to add the federal Government as a party. The third action was
initiated by the federal Government in May 1988 in an attempt to overcome
Jurisdictional wrangles, to bring both the provincial and federal Governments and
the Band before the same courts, and to finally solve matters. The Band chose not
to perticipate in this action, despite the efforts of the Chief Justice of the
Court of Queen's Beuch of Alberta to expedite matters - this action remains in
abeyance. For the State party, each of the above court actions provides a vehicle
by which the Band could resolve its claims.
26.4 In addition to judicial proceedings, the State party maintains, the federal
Government has sought to settle matters with the Lubicon Lake Band by way of
negotiation. Thus, the offers put forward during these negotiations (outlined in
para. 24.1 above) met virtually all of the author's claim in full or to a large
~18-—
extent. The State party adds that a new round of negotiations has started and that
“extensive efforts are being made in this regard". Discussions between the Band
and the Alberta provincial government resumed on 23 August 1989, and further
discussions with the federal Government were scheduled to start on
7 September 1989. The State party reiterates that its offer to the Band remains
valid.
26.5 In respect of the determination of Band membership, the State party rejects
as “completely incorrect" the Band's claim that "Canada has attempted to subject
Lubicoa Lake Band members to a retroactive application of the Canadian Indian Act
as it stood prior to its amendment following the decision in Sandra Lovelace y.
Canada". On the contrary, the State party submits, the Band submitted, in 1985, a
membership code pursuant to the Indian Act (as amended following the Committee's
decision in the Lovelace case), which was accepted by Canada and gave the Band
tetal control over its membership. As a result, the federal Government's offer is
bused on the approximately 500 individuals considsred by the Band leadership to be
members of the Lubicon Lake community.
26.6 In respect of the alleged violations of articles 17 and 23, paragraph 1,
18 and 27, the State party rejects as inaccurate and misleading the Band's claim
that "Cenada is participating in a project by which virtually all traditional
Lubicon lands have been leased for timber development". It points out that the
Daishowa pulp mill, which is under construction north of Peace River, Alberta, is
neither within the Band's claimed “traditional” lands nor within the area agreed to
by the Band and the provincial government for a reserve. It is stated that the new
pulp mill is located approximetely 80 kilometres away from the land set aside for
the Band. The State party continues:
“Ae regards the area available to the pulp mill to supply its operations, the
forest management agreement between the province of Alberta and the pulp mill
specifically excludes the land proposed for the Lubicon Lake Band. Moreover,
in the interests of sound forest management practices, the area cut annually
outside of the proposed Lubicon reserve will involve less than 1 per cent of
the area specified in the forest management agreement."
26.7 Finally, the State party draws attention to recent developments in the
Cadotte Lake/Buffalo Lake community, within which the majority of the Lubicon Lake
Band members reside. In December 1988, the federal Government was informed of the
existence of a new group within the community, which was seeking to solve the
rights of its members under Treaty 8 independent of the Lubicon Lake Band. This
group, composed of about 350 individuals, requested from the Government recognitios
of its status as the Woodland Cree Band. According to the State party, the group
consists of Lubicon Lake Band members who formally expressed their intention of
joining the new Band, former Lubicon Lake Band members whose names were removed by
the Lubicon Lake Band in January 1989 from the list of Band members, and other
native individuals living within the community. The federal Government agreed to
the creation of the Woodland Cree Band. The State party adds that it recognisus
the same legal obligations in respect of the Woodland Cree Band as it does in
respect of the Lubicon Lake Band members.
26.8 In a further submission dated 28 September 1989, the State party refers to
the tripartite negotiations between the federal Government, the provincial
government and the Lubicon Lake Band, scheduled to take place at the end of
August/early September 1989; it claims that although the Band had undertaken to
-19~
provide a comprehensive counterproposal to the federal Government's outstanding
offer and to provide a list of the persons it represscted in the negotiations, it
was informed, on 7 September 1989, that a counterproposal had not been prepared by
the Band and that no list of the individuals purported to be represented by the
Band would be forthcoming. The Band allegedly stated that it refused to negotiate
in the presence of Mr. Ken Colby, a member of Canada's negotiating team, because of
his activities ae a government media spokesman. Thus, owing to the Band's refusal
to continue a meaningful discussion of its claim, negotiations were not resumed.
27.1 In his comments of 2 October 1989 on the State party's reply to the
Committee's interim decision, the author contends that the State party's claim of
prejudice in conducting the case before the Human Rights Committee is unfounded, as
all the factual and legal bases of the Band's claims have been thoroughly argued.
As to whether domestic remedies continue to be available to the Band, it is pointed
out that no domestic remedy exists which could restore the Lubicon Lake Band's .
traditional economy or way of life, which "has been uestroyed as a direct result of
both the negligence of the Canadian Government and its deliberate act}ons". The
author eubmite that from the legal point of view, the geituation of the Band is
consistent with the Committee's decision in the case of Mufion v. Peru, a/ in which
it was held that the concept of a fair hearing within the meaning of article 14,
paragraph 1, of the Covenont necessarily entails that justice be rendered without
undue delay. In that case, the Committee had considered a delay of seven years in
the domestic proceedings to be unreasonably prolonged. In the case of the Band,
the author states, domestic proceedings were initiated in 1975. Furthermore,
although the Band petitioned the federal Government for a reserve for the first
time in 1933, the matter remains unsettled. According to the Band, it was forced
to bring 14 years of litigation to an end, primarily because of two decisions that
effectively deny the Band an opportunity to maintain aboriginal rights claim
against the federal Government. Thus, in 1986, the Supreme Court of Canada denied
federal court jurisdiction in aboriginal rights cases arising within provincial
boundaries in the Jog case. In the light of that decision, the Band requested the
Alberta courts, in 1987, to include the federal Government as a necessary party in
the Band's aboriginal rights claim; this request was opposed by the federal
Government. In May 1988, the federal Government instituted proceedings, which, in
the author's opinion, were intended to persuade the Alberta Court of Queen's Bench
that the Band merely had treaty-baged rights to 40 square miles of land. It is
aubmitted that a favourable decision would, for the Government, virtually clear the
title to the Daieshowa timber leases, encompassing nearly all of the traditional
Lubicon territory, while not rendering "moot issues related to [the) destruction of
the Band's economic base". The author submits that the Chief Justice of the Court
of Queen's Bench recognised that aboriginal rights had to be determined before any
decision on the issue of treaty rights, and that if the State party had wanted the
courte to truly settle the Lubicon land issue, rather than using them so as to
forestall any efforts to solve the matter, it would have referred the issue
directly to the Supreme Court of Canada,
27.2 As to the State party's reference to a negotiated settlement, the author
submite that the offer is neither equitable nor dows it address the needs of the
Lubicon community, since it would leave virtually all items of any significance to
future discussions, decisions by Canada, or applications by the Band; and that the
Band would be required to abandon all rights to present any future domestic and
international claims against the State party, including its communication to the
Human Rights Committee. The author further submits that the agreement of
October 1988 between the Band and the Province of Alberta Goes not in the least
-20-
solve the Band's aboriginal land claims, and that the State party's
characterisation of the agreement has been "deceptive". In this context, the
author argues that, contrary to its earlier representations, the State party has
not offered to implement the October 1988 agreement and that if it were willing to
honour its provisions, several issues including the question of just compensation
would have to be settled.
27.3 In substantiation of his earlier submissions concerning sllegad violations of
articles 14 and 26. the author claims that the State party has not only failed to
provide the Band equal protection -A- non-Indian groups, but that it also
attempted to deny it equal protection vig-A-vig other Indian bands. Thus, with
respect to the issue of Band membership, the author alleges, the effect of the
formula proposed by Canada in 1986 for determining Band membership would deny
aboriginal rights to more than half of the Lubicon people, thereby treating the
Band members in an unequal and discriminatory way in comparison with the treatment
of all other native people. It is submitted that as late as December 1988, the
State party sought to apply to the Band criteria that were those of the legislation
prior to the Human Rights Committee's views in the case of Lovelace v. Canada, b/
which legislation was found to be contrary to article 27 of the Covenent.
27.4 With respect to the alleged vivlations of articles 17, 18, 23 and 27, the
author reiterates that the S&S. .te party has sought to distort the presentation of
recent events and engaged in a misleading discussion of the Daishowa timber
project, so as to divert the Committee's attention from "Canada's knowing and
wilful destruction of Lubicon society". He recalls that only seven monthe after
the Committee's request for interim protection under rule 96, virtually all of the
traditional Lubicon land was leased for commercial purposes in connection with the
Daishowa timber project. The relevant forest management agreement to supply the
new pulp mill with trees, allegedly completely covers the traditional Lubicon
hunting and trapping grounds, which cover 10,000 square kilometres, with the
exception of 65 square kilometres set aside but never formally estabiished as a
reserve. It is submitted by the author that Canada has acted in violation of the
Committee's request for interim protection when it sold the timber resources of the
10,000 square kilometres, allegedly traditionally used by the Band and never ceded
by it, to a Japanese company. Moreover, Canada is allegad to portray wrongly the
impact of the Daishowa project as minimal; the author pointe out that current
production plans would call for the cutting of 4 millicn trees annually, and that
pians to double the envisaged annual production of 340,000 metric tons of pulp in
three yuars have recertly been ennounced. This economic activity, if proceeding
unabated, would, in tho author's opinion, continue to destroy the traditional
lifeground of the Lubicon community. He submits that the fact that the
95 square miles set aside under the October 1988 agreement are relatively intact
would be irrelevant, since the game on which the Band members have traditionally
depended for their livelihood hae already been driven out of the entire
10,000 square kilometre area.
27.5 Finally, the author submits that the State party's creation of the "Woodland
Cree Banu", through which it is allegedly attempting to “fabrivate" a competing
claim to traditional Lubicon lands, places the State party in further violations of
artivles 1, 26 and 27 of the Covenant. In this context, the author claims that the
Woodland Cree Band js:
"a group of disparate individuals drawn together by Canada from a dosen
different communities scattered across Alberta and British Columbia, who have
-21-
no history as an organised aboriginal society and no relation as a group to
the traditional territory of the Lubicon Lake Band [and that it] is Canada's
most recent effort to undertiine the traditional Lubicon society and to subvert
Lubicon land rights."
Yhe author adde that the federai Government has supported the Woodland Cree Band
both financially and legally, recognising it "with unprecedented dispatch", thereby
bypassing more than 70 other groups, including siz different homogenous Cree
communities in northern Alberta that had been awaiting recognition as binds for
over 50 years. Some of the alleged members of the "Woodland Cree” band are said to
come from these very communities. The author refers to section 17 of the Indian
Act, which gives the Canadian Indian Affaire Minister the power to constitute bands
and to determine that "such portion of the reserve land and funds of the existing
Band as the Minister determines" may be earmarked for the benefit of the new band.
It de submitted by the author that the powers conferred under section 17 of the
Indian Act are "extraordinary and unconst’tutional" and that they have been invoked
“in order to create [the] ‘Woodland Crec ad' and to dispossess the Lubicon Lake
Band of its traditional territory and culture". Furthermore, while the State party
claims that the Woodland Cree Band represents some 350 individuals, the author
allages that the new Band has steadfastly refused to release the names of its
members, so that its cisime might be verified. He states that the federal
Government has recognized that the Woodland Cree Band members comprise only
110 individuals.
27.6 The author concludes that the State party has been unable to refute his
allegations of violations of articles 2, 6, paragraph 1, 7, 14, paragraph 1, 17,
18, paragraph 1, 23, paragraph 1, 26 and 27, as set out in his submissions of
12 January 1988 and 36 May 1989, and requests the Committee to find against the
State party in respect of these articles. In respect of an aileged violation of
article 1, he points out that while he has, as the representative of the Band,
signed all the submissions to the Committee, he merely acts in his capacity as a
duly elected representative of the Band and not on his own behalf. In this
context, he notes that while article 2 of the Optional Protocol provides for the
submission of claims to the Committee by individuals, article 1 of the Covenant
guarantees “all peoples ... the right of self-determination". He adds that "if the
Committee determines that an individual submitting a claim on behalf of a group, in
compliance with the provisions of article 2 of the Optional Protocol, may not state
a case oa behalf of that group under articla 1 of the Covenant, the Committee
effectively has determined thac the rights enumerated in article 1 of the Covenant
are not enforceable". The author further adds that it “clearly could not he the
jatent of the Committse to reach such a result" and that "therefore, the Band
respectfully submits that as a people, represented by their duly elected leader,
Chief Bernard Ominayak, the Lubicon Lake Band has been the victim of violations by
the federal Government of Canada of the Band's rights as enumerated in article 1 of
the Covenant on Civil and Political Rights”.
28.1 In a final submission dated 8 November 1969, the State party recalls that in
any assessment of the judicial procewdings in the case of the Lubicon Lake Band,
the State party's constitutional division of powers between the federal and
provincial governments aud the c<espective jurisdiction of the courts has to be
borne in mind. Where provincially owned lands are claimed, as in the case of the
Lubicons, the Supreme Court of Canada has held that claims must be filed in the
provincial courts against proviacial governments. The Supreme Court's ruling
clearly definez, the State party submits, the proper judicial forum for the Band's
-22-
claim to aboriginal land rights. The State party emphasises that the failure of
the Band's representatives to initiate proceedings in the competent sourts does aot
imply chat Canadian courts are either unable or unwilling to quarantee a fair
hearing in the case.
28.2 Regarding the distinction between aboriginal rights and treaty rights, the
State party explains that under Canadian constitutional law, aboriginal rights may
be superseded by treaty rights. Whenever this occurs, Indian bands may claim
benefits under the superseding treaties. The State party acknowledges that the
Lubicon Lake Band has a valid claim to benefits under Treaty 8, which was entered
into with the Cree and other Indians in the Province of Alberta in 1899. Rights
under Treaty 8 formed the basis of the offers made by the Canadian and Albertan
governments to the Band. The land offered by the provincial government under the
October 1988 agreement is related to these Treaty provisions. On the other hand,
the 10,000 square kilometre area referred to by the Band in its submissions relate
to its aboriginal claims, which have not been recognized by the federal
Government. The Band's complaint about oi] exploration and exploitation and
impending timber developmert, refers to activities on this wider territory of
10,000 square kilometres - not on lands that were identified in proposed
settlements between the Band and the federal and provincial government.
28.3 The State party refutes the Band's claim that its trapping and bunting
lifestyle has been irretrievably destroyed and points out that in areas covered by
timber leases the forest, generally, remains intact and sustains an animal
population sufficient to satisfy those members of the Lubicon Lake Band who wish to
engage in traditional activities. It adds that disturbances of the forest
ecosystems usually result in an increase of the population of larger mammals, as
they increase food availability in open areas.
28.4 Lastly, the State party reaffirms the voluntary nature of the establishment
of the Woodland Cree Band. It points out that a minority of those wishing to join
the Woodland Cree Band were at one point in time full members of the Lubicon Lake
Band. Some of them, the State party points out, have since left the Band
voluntarily, while about 30 of the members were expelled recently by decision of
the Lubicon Lake Band. It is submitted that members of the Woodland Cree Band
petitioned the federal Government, much in the same way ac members of the Lubicon
Lake Band did prior to the Band's recognition in the 1930s. The new Band was
recognised becausn, in the State party's view, some of ites members have land
entitlements pursuant to Treaty 8 which they wish to assert. The State party adds
that it recognized the Woodland Cree Band, at the express request of those who
sought recognition, so that their desire to form a community could be realized, and
that the Woodland Cree Band has not sought any land portions also claimed by the
Lubicons.
Summary of the submissions
29.1 At the outset, the author's claim, although set against a complex background,
concerned basically the alleged denial of the right of self-determination and the
right of the members of the Lubicon Lake Band t: dispose freely of their natural
wealth and resources. It was claimed that, although the Government of Canada,
through the Indian Act of 1970 and Treaty 8 of 1899, had recognized the right of
the Lubicon Lake Band tu continue its traditional way of life, its land
(approximately 10,000 square kilometres) had been expropriated for commercial
interest (oil and gas exploration) and destroyed, thus depriving the Lubicon Lake
-23-
Bang of its means of subsistence and enjoyment of the right of self-determination.
It was claimed that the rapid destruction of the Band's economic base and
aboriginal way of life had already caused irreparable injury. It was further
claimed that the Government of Canada had deliberately used the domestic political
and legal processes to thwart and delay all the Band's efforts to seek redress, 80
that the industrial development in the area, accompanied by the destruction of the
environmental and economic base of the Band, would make it impossible for the Band
to wurvive as a people. The author has stated that the Lubicon Lake Band is not
seeking from the Committee a territorial rights decision, but only that the
Committee asaiet it in attempting to convince the Government of Canada: (a) that
the Band's existence is seriously threatened; and (b) that Canada is responsible
for the current state of affairs.
29.2 From the outset, the State party has denied the allegations that the
existence of the Lubicon Lake Band has been threatened and hae maintained that
continued resource development would not cause irreparable injury to the
traditional way of life of the Eand. It submitted that the Band's claim to vertain
lands in northern Alberta was part of a complex situation that involved a number of
competing claims from several other native communications in the area, that
effective redress in respect of the Band's claims was still available, both through
the vourt:s and through negotiations, that the Government had made an ex gratia
payment to the Band of $C 1.5 million to cover legal costs and that, at any rate,
article J of the Covenant, concerning the rights of people, could not be invoked
under the Optional Protocol, which provides for the consideration of alleged
violations of individual rights, but not colivctive rights conferred upon peoples.
29.3 This was the state of affairs when the Committee decided in July 1987 that
the communication was admissible "in so far as it may raise issues under article 27
or other articles of the Covenant". In view of the seriousness of the author's
allegations that the Lubicon Lake Band was at the verge of extinction, the
Committee requested the Siate party, under rule 86 of the rules of procedure "to
take interim measures of protection to avoid irreparable damage to ‘the auther of
the communication] and other members of the Lubicon Lake Band".
29.4 Insisting that no irreparable damage to the traditional way of life of the
Lubicon Lake Band had occurred and that there was no imminent threat of such harm,
and ‘urther that both a trial on the merits of the Band's claime and the
negotiat.cn process constitute effective and viable alternatives to the interim
relief which the Band had unsuccessfully sought ‘n the courts, the State party, in
October 1987, requested the Committee, under rule 93, par graph 4, of the rules of
procedure, to review its decision on admissibility, in so far as it concerns the
requirement of exhaustion of domestic remedies. The State party stressed in this
connection that delays in the judicial proceedings initiated by the Band were
largely attributable to the Band's own inaction. The State party further explained
its long-stending policy to seek the resolutions of valid, outstanding land claims
by Indian bands through negotiations.
29.5 Since October i987, the parties have made a number of submissions, refuting
each other's statements as factually misleading or wrong. The author has accused
the State party of creating a situation that has directly or indirectly led to the
death of many Band members and is threatening the lives of all other members of the
Lubicon community, that miscarriages and stilibirths have skyrocketed and abnormal
births have risen from sero to near 100 per cent, all in violation cf article 6 of
the Covenant: that the devastation wrough. on the community constitutes crusl,
-24.-
inhuman and degrading treatment in violation of article 7; that the bias of the
Canadian courts has frustrated the Band's efforts to protect its land, community
and livelihood, and that several of the judges have hac. clear economic and personal
ties to the parties opposing the Band in the court actions, all in violation of
articles 14, paragraph 1, and 26; that the State party has permitted the
destruction of the families and homes of the Band members in violation of
articles 17 and 23, paragraph 1; that the Band members have been “robbed of the
physical realm to which their religion attaches" in violation of article 16,
paragraph 1; and that all of the above also constitutes violations of article 2,
paragraphs 1 to 3, of the Covenant.
29.6 The State party has categorically rejented the above allegations as unfounded
and unsubstantiated and as constituting an abuse of the right of submission. It
gubmite that serious and g .uine efforts continued in early 1968 to engage
reprasentatives of the Lubicon Lake Band in negotiations in respect of the Band'e
Claims, These efforts, which includud an interim offer to set aside
25.4 square miles as reserve land for the Band, without prejudice to negotiations
or any court actions, failed. According to the author, all but the
25.4 square miles of the Band's traditional lanis had been leased out, in defiance
of the Committee's request for interim measures of protection, in conjunction with
@ pulp mill to be constructed by the Dai.howa Canada Company Ltd. near Peace River,
Alberta, and that the Daishowa project frustrated any hopes of the continuation of
eome traditional activity by Band members.
29.7 Accepting its obligation to provide the Lubicon Lake Band with reserve land
under Treaty 8, and after further unsuccessful discussions, the Federal Government,
in May 1988, initiated legal proceedings against the Province of Alberta and the
Lubicon Lake Band, in an effort to provide a common jurisdiction and thus to enable
it to meet ite lawful obligations to the Band under Treaty 8. In the author's
Opinion, however, this initiative was designated for the sole purpose of delaying
indefinitely the resolution of the Lubicon land issues and, on 6 October 1988
(30 September, according to the State party), the Lubicon Lake Band asserted
jurisdiction over its territory and declared that it had ceased to recognise the
jurisdiction of the Canadian courts. The author further accused the State party of
“practicing deceit in the media and dismissing advisors who recommend any
resolution favourable to the Lubicon people".
29.8 Following an agreement between the provincial government of Alberta and the
Lubicon Lake Band in November 1988 to set aside 95 square miles of land for a
reserve, negotiations started between the federal Government and the Band on the
modalities of the land transfer and related issues. According to the State party,
consensuo had bewn reached on the majority of issues, including Band membership,
aise of the reserve, community construction and delivery of programmes and
services, but not on cash compensation, when the Band withdrew f:om the
negotiati.as on 24 January 1989. The formal offer presented at that time by the
federal Government amounted to approximately $C 45 million in benefits ara
programmes, in addition to the 95 square mile reserve.
29.9 The author, on the other hand, states that the above information from the
State party is not « iy misleading Sut virtually entirely untrue and that there had
been no seriouc att. .t by the Government to reach a settlement. He describes the
Government's offer as an exercise in public relations, “which committed the Federal
Government to virtually nothing", and states that no agreement or consensus had
been reached on any issue. The author further accused the State party of sending
agents into comnunities surrounding the traditional Lubioon territory to induce
other natives to make competing claims for traditional Lubicon land.
29.10 The State party rejects the allegation that it necotiated in bad faith or
engaged in improper behaviour to the detriment of the interests of the Lubicon Lake
Band. It concedes that the Lubicon Lake Band hes suffered a h'storical inequity,
but maintains that ita formal offer would, if accepted, enable the Band to maintain
its culture, control ite way of life and achieve economic self-aufficiency and,
thus, constitute an effective remedy. On the basis of a total of 500 Band memboru,
the package worth §C 45 million would amount tu almost $C 500,000 for eavh family
of five. It atatus that a number of the Band's demands, including an indoor ice
arena ox a swimming pool, had been refused. The major remaining point of
contention, the State party submits, is a requust for $C 167 million in
compensation for economic and other losses allegedly auffered. ‘fhat claim, it
submits, could be pursued in the courts, irrespective of the acceptance of the
formal offer. It reiterates that its offer to the Band stands.
29.11 Further submissions from both parties have, inter alia, dealt with the impact
of the Daishowa pulp mill on the traditional way of life of the Lubicon Lake Band.
While the author states that the impact would be devastating, the State party
maintains that it would have no serious advecse consequences, pointing out that the
pulp mill, located about 80 kilometres away from the land set aside for the
reserve, is not within the Band's claimed traditional territory and that the area
to be cut annually, outside the proposed reserve, involves less than 1 per cent of
the area specified in the forest management agreement.
30. The Human Rights Committees has considored the present communication in the
light of the informacion made available by tho parties, as provided for in
articles 5, paragraph 1, of the Optional Prutocol. In so doing, the Committee
observes that the persistent disagreement between the parties as to what
constitutes the factual setting for the dispute at issua iag made the consideration
of the claims on the merits most difficult.
Request for a review of the decision on admisaibility
31.1 The Committee has seriously considered the State party's request that it
review its decision declaring the xsommunication admissible under the Opt :.nal
Protocol “in so far as it may raise iesues under article 27 or other articles of
the Covenant". In the light of tlhe information now before it, the Committee notes
that the State party has argued convincingly that, by actively pursuing matters
before the appropriate courts, delays, which appeared to be unreasonebly prolonged,
could have been reduced by the Lubicon Lake Band. At issue, however, is the
question of whether the road of litigation would have represented an effective
method of saving or restoring the traditional or cultural livelihood of the Lubicon
Lake Band, which, at the material time, was allegedly at the brink of collapse.
The Committee is not persuaded that that would have constituted an effective remedy
within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. In the
circumstances, the Committee upholds its earlier decision on admissibility.
31.2 At this stage, the Commitven must also state that it does not agree with the
State party's contention that it was remiss in not spelling out, at the time of
declaring the communication admissible, which of the author's allegations deverved
consid:ration on the merits. Although somewhat confusing at times, the author’s
-26-
Claims have been set out sufficiently clearly as to permit both the State party and
the Committee, in turn, to address the issues on tne merits.
Articles of the Covenant silegad to have been violated
32.1 The queation has arisen of whether any claim under article 1 of the Covenant
remains, the Committee's decision on admissibility notwithstanding. Wh-ie all
peoples have the right of self-determination and the right freely to determine
their political status, pursue their economic, social and cultural development and
dispose of their natural wealth and resources, as stipulated in article 1 of the
Covenant, the question whether the Lubicon Lake Band constitutes a "people" is not
an iasue for the Committee to address under the Optional Protocol to the Covenent.
The Optional Protocol provides a procedure under which individuals can claim that
their individual righta have been violated. These rights are set out in part IIt
of the Covenant, articles 6 to 27, invelusive. There is, however, no objection to a
group of individuals, who claim to be similarly affected, collectively to submit a
communication about alloged breaches of their rights.
32.2 Although initially couched in terme of elleged breaches of the provisions of
article 1 of the Covenant, there is no doubt that many of the claims presented
raise issues undvr article 27. The Committee recognises that the rights protected
by article 27, include the right of persons, in community with others, to engage in
economic and social activities which are part of ths culture of the community t»%
which they beling. Sweeping allegations concerning extremely serious breaches of
other articles of the Covenant (6, 7, 14, para. 1, and 26), made after the
comnunication was declared admissible, have not been substantiated to the extent
that they would deaerve serious consideration. The allegations concerning breaches
of articles 17 and 23, paregraph 1, are similarly of a sweeping nature and will not
be taken into account except in so far as they may be conaidered subsumed under the
allegations wi ich, generally, raise issues under article 27.
32.3 Tho most recent allegations that the State party hag conspired to create an
artificial band, the Woodland Cree Band, said to have competing claims to
traditional Lubicon land, are Gismiased ar an abuse of the right of submission
within the msaning of article 3 of the Ortional Protocol.
Violatione and the remady offered
33. Historical inequities, to which the State party refers, and certain more
recent developments threaten the way of life and culture of the Lubicen Lake Band,
and constitute a violation of article 27 so long as they continue. ‘The State party
proposes to rectify the situation by a remedy that the Committee deems appropriate
within the meaning of article 2 of the Covenant.
Notes
a/ Communication No. 203/1986, final views adopted on 4 November 1988,
para. 11.3.
b/ = Communication No. 24/1977, final views adopted on 30 July 1981.
-27-
APPENDIX I
I do not oppose the adoption of the Human Rights Committee's views, as they
may serve as a warning against the exploitation of natural resources wk'ch might
cause irreparable damage to the environment of the earth that must be preserved for
future generations. However, I am not certain if the situation at issue in the
present comnunication should be viewed as constituting a violation of the
provisions of article 27 of the Covenant.
Article 27 stipulates: "In those States in which ethnic, religious or
linguisitic minorities exists, persons belonging to such minorities shall not be
denied the right, in community with the other members of their group, to enjoy
their own culture, to profess and practice their own religion, or to use their own
language". Obviously, persons belonging to the Lubicon Lake Band are not denied
the right to profess and practice their own religion or to use their own language.
At issue in the present communication is thererore, whether the recent
expropriation by the Governmont of the Province of Alberta of the Band's land for
commercial interest (e.g. leases for oil and gas exploration) constitutes a
violation of those persons’ right "to enjoy their own culture”.
It is not impossible that a certain culture is closely linked to a particular
way of life and that industrial exploration of natural rescurces may affect the
Band's traditional way of life, including hunting and fishing. In my opinion,
however, the right to enjoy one's own culture should not be understood to imply
that the Band's traditional way of life must be preserved intact at all costs.
Past history of mankind bears out that technical development has brought about
various changes to existing ways of life and thus affected a culture sustained
thereon. Indeed, outright refusal by a group in a given society to change its
traditional way of life may hamper the economic development of the society as a
whole. For this reason I would like to express my reservation to the categorical
statement that recent developments have threatened the life of the Lubicon Lake
Band and constitute a violation of article 27.
Nisuke ANDO
-28-
APPENDIX II
The communication in its present form essentially concerns the authors' rights
to freely dispose of their natural wealth and resources, and to retain their own
means of subsistence, such as hunting and fishing. In its decision of
22 July 1987, the Human Rights Committee decided that the communication was
admissible in so far as it could have raised issues under article 27 or other
articles of the Covenant. With respect to provisions other than article 27 the
authors’ allegations have remained, however, of such a sweeping nature that the
Committee has not been able to take them into account except in so far as they may
b- subsumed under the claims which, generally, raise issues under article 27. That
is the basis of my individual opinicn.
Since the Committee adopted its decinion on admissibility, diucussions seeking
a resolution of the matter have taken place between the Federai Government, the
Province of Alberta and the authors. As no progress was made towards a settlement,
the Federal Government initiated legal proceedings against the Province of Alberta
and the Lubicon Lake Band on 17 May 1988, in order to enable Canada to meet its
legal obligations vis 4-vis the authors under Treaty 8. The Statement of Claim,
initiating the legai action, seeka from the Court of the Queen's Bench of Alberta
(a) a declaration that the Lubicon Lake Band is entitled to a reserve and (b) a
determination of the size of that reserve.
On 9 June 1988, the Lubicon Lake Band filed a Statement of Defence and
Counterclaim. In this connection, the State party has submitted that the issue
forming the basis of the domestic dispute as well as the basis of the communication
before the Human Rights Committee concerns the extent of the territory to be set
aside as 8 reserve, and related issues. It is not altogether clear that all issues
which may be raised under article 27 of the Covenant are issues to be considered by
the Court of Queen's Bench of Alberta in the case still pending before it. At the
same time, it does appear that issues under article 27 of the Covenant are
inextricably linked with the extent of the territory to be set aside as a reserve,
and guestions related to those issues.
The rationale behind the general rule of international law that domestic
remedies should be exhausted before a claim is submitted to an instance of
international investigation or settlement is primarily to give a respondent State
an opportunity to redress, by its own means within the framework of its domestic
legal system, the wrongs alleged to have been suffered by the individual, In my
opinion, this rationale implies that, in a case such as the present one, an
international instance shall not examine a matter pending before a court of the
respondent State. To my mind, it is not compatible with international law that an
international instance consider issues which, concurrently, are pending before a
national court. An instance of international investigation or settiement must, in
my opinion, refrain from considering any issue pending before a national court
-29-
until such time as the matter has bewn adjudicated upon by the aational courts. As
that is not the case here, I find the communication inadmissible at this point in
time.
Bertil WENNERGREN
~-30-