Canada acknowledges secret guidelines

A footnote at the bottom of page 15 of Canada’s 16-page follow-up submission to the United Nations (UN) Human Rights Committee, dated Aug. 14, 2006, contains a startling admission.

A Canadian official complains, in Canada’s written reply to the UN human rights body on a submission made earlier by the Lubicon Lake Cree Nation, that the Lubicons “provided the Human Rights Committee with a privileged document prepared by the government of Canada as instructions for its negotiators dealing with self-government issues.” Which means that the “Guidelines for Federal Self-government Negotiators” do exist after all.

In June 2005, Windspeaker obtained the document, which was marked “secret”, from the Lubicons and made attempts to verify its authenticity. Government reactions ranged from claims that the document was a draft that had never been adopted by cabinet and never put into effect, to not-for-attribution denials that it even existed.
The document was dated March 1996, but Lubicon Chief Bernard Ominayak stated that the Lubicons obtained it late in 2003.

Fred Lennarson, a long-time advisor to Ominayak, said the band’s negotiating team believed at the time, based on its experiences, that the guidelines were still in use.
The Justice department lawyers who compiled the guidelines for federal negotiators wrote that the federal government’s policy recognizing the inherent right of self-government “goes considerably beyond what the government would be prepared to accept as a strict matter of law, if it were forced to litigate the matter before the courts.”

The guidelines go into great detail as to how to word clauses in agreements, warning away from words that a court would see as a sign the government is recognizing the inherent right of a specific First Nation.

The idea put forward is that the government has recognized —and enshrined in Section 35 of the Constitution—that there is a general inherent right to self-government that all First Nations possess in theory, but few, if any, possess it in practice.

General recognition of the inherent right is preferred by the Justice lawyers because it means no specific right is recognized, according to the document.

“Under this approach, recognition of the inherent right is explicit but we remain agnostic as to which groups actually have such a right,” the secret document states.
The Lubicon complained to the UN human rights body at the time that this was a secret plan to negotiate in bad faith, something Canada mentioned and again denied in its most recent response to the committee.

“The Lubicon Lake Cree characterized this document, which included privileged legal advice on the meaning of possible language to be included in final agreements, as a mandate to negotiate in bad faith. The government of Canada regrets the willingness of the negotiators for the Lubicon Lake Cree to breach negotiation privilege and to miscast documents and actions of the government of Canada in the press and before UN bodies.”

Canada was responding to a submission made Jan. 11, 2006 by Lubicon Lake Cree Chief Bernard Ominayak.
“Caught off guard when the Lubicons obtained a copy of the secret Justice department guidelines, chagrined federal negotiators responded to the Lubicon demand that the secret guidelines be renounced, and federal negotiators sent to the table with instructions to negotiate self-government in good faith, by taking the position that the secret guidelines can’t be renounced because, they said, the guidelines haven’t been approved by the federal cabinet,” the Lubicon submission stated.

“Justice department officials unabashedly (and illegally) denied the existence of the guidelines when asked for a copy by the media under Canadian access to information legislation. The Canadian Indian Affairs minister [Andy Scott] responded to the Lubicon demand that the government renounce the guidelines and send government negotiators to the table with instructions to negotiate Lubicon self-government in good faith by ignoring all reference to the secret guidelines and simply denying indignantly that Canada ever negotiates in bad faith.”

The question of the nature of the mandate of federal negotiators is keeping the talks at an impasse at the moment.

“The question of the guidelines must be addressed to make any progress on self-government. As long as the federal negotiators are instructed to go to the table and negotiate in bad faith, why go? It’s got to be exposed and the government’s got to renounce it. It doesn’t mean that they will start acting in good faith, but at the moment they have official instructions to negotiate in bad faith,” Lennarson said, when reached by telephone on April 11. “You can’t negotiate on that basis. It’s terribly important that it be addressed and the way to address it is to shine the light of day on it.”