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REQUEST FOR CONSIDERATION UNDER THE EARLY WARNING AND URGENT

ACTION PROCEDURE

THE COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION


89th SESSION
25 APRIL 13 MAY 2016

SUBMITTED BY LUBICON LAKE NATION

IN RELATION TO CANADA

2 MAY 2016

EXECUTIVE SUMMARY

The Lubicon Lake Nation (Muskotew Sakahikan Enowuk) are Cree Indigenous Peoples and
Nations as understood within the international jurisprudence1, and as such we further declare that
we are also a peoples as articulated by the same jurisprudence. Being understood as a
peoples within the international jurisprudence the Nations have an inherent right by such status
to self-determination. Our Nation has never entered into Treaty with any Crown or colonial state.
Our territory is constantly being used by the colonial state without our consent as a clear
violation of our rights.
We assert our Nations inherent right to self-determination to freely determine our political status
and to freely pursue our economic, social and cultural development without interference from
foreign nations. The Lubicon Lake Nation not only assert that such an inherent right to selfdetermination is being systematically undermined by the actions of the state of Canada contrary
to international law. Canada has attempted to create entities to represent our interests. These
actions were done without our consent. These entities are not comprised of Lubicon Lake Nation
Peoples.
The Lubicon Lake Nation asserts that the Canadian state has consistently imposed their laws,
policies and procedures on our Nation based on the premise that we are unable to govern our
lands, resources, communities or our people. The Nation submit that such a premise is based
1

The Nations for this submission accept that the working definition of indigenous peoples as found in the seminal work of
Special Rapporteur, Martinez Cobo in his report on the Study of the Problem of Discrimination Against Indigenous
Populations (Cobo Report), and submits that they meet the criteria as set out in this definition, The definition from the Cobo
Report reads as follows:
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and
pre-colonial societies that developed on our territories, consider themselves distinct from other sectors of the societies now
prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to
preserve, develop and transmit to future generations our ancestral territories, and our ethnic identity, as the basis of our continued
existence as peoples, in accordance with our own cultural patterns, social institutions and legal system.
This historical continuity may consist of the continuation, for an extended period reaching into the present of one or
more of the following factors:
a)
b)
c)

Occupation of ancestral lands, or at least of part of them;


Common ancestry with the original occupants of these lands;
Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an
indigenous community, dress, means of livelihood, lifestyle, etc.);
d) Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in
the family, or as the main, preferred, habitual, general or normal language);
e) Residence on certain parts of the country, or in certain regions of the world;
f) Other relevant factors.
On an individual basis, an indigenous person is one who belongs to these indigenous populations through selfidentification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members
(acceptance by the group).
This preserves for these communities the sovereign right and power to decide who belongs to them, without external
interference. UN Doc. E/CN.4/Sub.2/1986/7 and Add. 1-4.

upon colonial beliefs and attitudes that hold the Nations, as Indigenous Peoples, to have
presumed inadequacies based on race as expressed through images of stupidity, poor decisionmaking, and childish, irresponsible and frequently irrational behaviors. These colonial attitudes
and beliefs also hold that our Nation and our members are stuck in an unprogressive and nonevolving past that is associated with maladaptive cultural characteristics. The Canadian state has
premised its relationship with our Nation on this basis and created its structure upon it, the
Lubicon Lake Nation have never participated in the creation of this Canadian state structure, and
as such the Canadian state continues its attempts to colonize our Nation and Peoples contrary to
international jurisprudence.
Assertions and Requests
The Lubicon Lake Nation assert that as Indigenous Peoples and Nations and peoples as
recognized within the international jurisprudence, we have the inherent right, as a component of
self-determination, to develop, control and manage our own future, and that such rights were not
relinquished through any relationship with the state of Canada. Further, we assert that our
Nations right to develop control and manage our territory and resources. The Convention on the
Elimination of Racial Discrimination requires the Canadian to allow us to exercise our right of
self-determination.
The Lubicon Lake Nation further asserts that the Canadian state racially discriminates against us
by its continued adherence to racists colonial beliefs and attitudes based upon the premise that
we, as Indigenous Peoples and Nations, are unable to govern our lands, resources, communities
or our people as other peoples and Nations are capable of accomplishing. Recently, the
Lubicon Lake Nation received a letter attached as an appendix that the state of Canada has
determined that a band created under the Canadian legislation known as the Indian Act is the
spoke people for the Lubicon. We have never entered into any agreement or arrangement with
Canada including agreeing to come under the Indian Act. These are clear violation of our
rights to freely determine our own political status and our future. These actions by the state of
Canada are designed to continue to access our resources without our consent.
The Nations respectfully requests that the UN Committee on the Elimination of Racial
Discrimination under its urgent action procedure find:

1. The presence of a significant and persistent pattern of racial discrimination within


Canadas continued unilateral imposition of laws and policies regarding our
Nations leadership are based on colonial beliefs and attitudes that holds racial and
negative stereotypes of our Nations and our members, and that views our Nations
as incapable of governing, our lands and resources, our communities or our people,
as other peoples and Nations are capable of accomplishing, and as a result
interferes with the Nations ability to exercise our inherent right to selfdetermination;
2

2. Canadas attempt to unilaterally impose the Indian Act on the Nation, is a


continued manifestation of the Canadian states racist colonial beliefs and attitudes
that is contrary to the Nations inherent right of self-determination;
3. A lack of effective mechanisms for our Nations to exercise our inherent right to
self-determination within the current Canadian states political landscape, and that
such a lack of effective mechanism is a result of the Canadian states continued use
of ideologies that hold our Nation as unable to govern our lands, resources,
communities or our people as other peoples and Nations are capable of
accomplishing. Such a premise is based on racist colonial beliefs and attitudes that
held the Lubicon Lake Nation have presumed inadequacies based on race as
expressed through images of poor decision-making, and childish, irresponsible and
frequently irrational behaviors.
Further these racist colonial attitudes and beliefs also hold that the Nations and our
members are stuck in an unprogressive and non-evolving past that is associated
with maladaptive cultural characteristics; and
4. A lack of a national effective mechanism for the Nations to bring complaints
regarding this persistent pattern of racial discrimination within Canadas continued
unilateral imposition of laws and policies regarding our Nation, as the Canadian
state strategically aligns itself with certain Aboriginal organizations that do not
politically represent our Nations and do not possess the inherent right of selfdetermination.
Finally, the Nations requests the UN Committee on the Elimination of Racial Discrimination
(CERD) in so finding the above take the following measures to ensure that the Canadian state
takes positive action to ensure our Nations free exercise of our inherent right to selfdetermination and that the Canadian state meets its obligation to sit with the real representatives
of the Lubicon Lake Nation and cease trying to manufacture consent for our resources within our
territory. We make the following:
1. To request the Canadian state to make an urgent submission of information on the
situation as described in this submission under the early warning and urgent action
procedure;
2. To request the Secretariat to collect information from field presences of the Office of the
High Commissioner of Human Rights and specialized agencies of the United Nations,
national human rights institutions and non-governmental organizations on the situation as
described in this submission and more specifically to appoint and direct UN Committee
on the Elimination of Racial Discrimination member to investigate and collect
3

information regarding the allegations contained in this submission and to report back to
UN Committee on the Elimination of Racial Discrimination with recommendations;
3. The adoption of a decision including the expression of specific concerns, along with
recommendations for action, addressed to the Canadian state, and the Special Rapporteur
for Indigenous Peoples;
4. To offer to send to Canada one or more members of the UN Committee on the
Elimination of Racial Discrimination in order to facilitate the implementation of
international standards regarding the situation as described in this submission;
5. To request that Canada re-open a dialogue and find an international facilitator to
manage discussions with the Lubicon Lake Nation and Okimaw (Chief) Bernard
Ominayak, in relation to our lands and other matters concerning the Lubicon Lake
Peoples;
6. To request that the state of Canada provide a report on its efforts to settle the ongoing
Lubicon Lake Nation land dispute from 1990 to date; and
7. Any other action that the UN Committee on the Elimination of Racial Discrimination
feels necessary to address the situation as described in this submission.

Background:
The Lubicon Lake Nation are and have been hunting, fishing and trapping on our Traditional
Territory long before the creation of Canada and continue occupy and protect our Traditional
Territory today. The Lubicon have never surrendered or ceded our territories. For more than
40 years, oil and gas resources have been taken from unceded Lubicon Lake Territory
without our consent. The unauthorized activities in our Territories have led to significant
environmental and health problems for Lubicon Peoples and our environment including our
waters, animals and lands.
Despite decades of advocacy the Lubicon Lake Nation is home to one of the longest
unresolved land disputes in Canada, and more than $14-billion worth of oil and gas has been
extracted without our consent. The damage to the Lubicon Lake Nation by ongoing resource
extraction is environmental, economic, social, emotional, psychological, physiological,
cultural and spiritual.
The Lubicon Lake Nation is not a new to the UN system. In the 1980s, the Lubicon Lake
Nation filed a complaint with the Human Rights Committee under Article 1 of the
Convention on Civil and Political Rights.
4

In particular in 1990 United Nations Human Rights Committee found Canada in


violation of Article 27 of the International Covenant on Civil and Political Rights as
regards Canadas treatment of the Lubicon Lake Nation and asked for interim
measures to avoid permanent damage to this community;

In 2005 the United Nations Human Rights Committee recommended that Canada
consult and accommodate with the Lubicon Lake nation on the ongoing oil and gas
development on our traditional territory;

In 2006 the United Nations Committee on Economic, Social and Cultural Rights
made similar recommendations;

Concluding Observations of the Human Rights Committee, Canada, 38th Session (1990): 2

In view of the seriousness of the Chief Bernard Ominayak's allegations that the
Lubicon Lake Band was at the verge of extinction, the Committee requested the State
party, under rule 86 of the rules of procedure "to take interim measures of protection
to avoid irreparable damage to [Chief Bernard Ominayak] and other members of the
Lubicon Lake Band"

historical inequities and more recent developments threaten the way of life an
culture of the Lubicon people and constitute a violation of Article 27 [of the
International Covenant of Civil and Political Rights] as long as they continue.

Concluding Observations of the Human Rights Committee, Canada, 85th Session (2005)3

2
3

The (UNHRC) is concerned that land claim negotiations between the Government of
Canada and the Lubicon Lake Band are currently at an impasse. It is also concerned
about information that the land of the Band continues to be compromised by logging
and large-scale oil and gas extraction, and regrets that the State party (Canada) has
not provided information on this specific issue. (Articles 1 and 27).

The State party should make every effort to resume negotiations with the Lubicon
Lake Band, with a view to finding a solution which respects the rights of the Band
under the Covenant (on Civil and Political Rights), as already found by the
Committee. It should consult with the Band before granting licences for economic
exploitation of the disputed land, and ensure that in no case such exploitation
jeopardizes the rights recognized under the Covenant.

https://www1.umn.edu/humanrts/undocs/session38/167-1984.html
https://www1.umn.edu/humanrts/hrcommittee/canada2006.html

Committee On Economic, Social and Cultural Rights: Report on the Thirty-Sixth and
Thirty-Seventh Sessions (2006)4:

The Committee urges the State party to re-examine its policies and practices towards
the inherent rights and titles of Aboriginal peoples, to ensure that policies and
practices do not result in extinguishment of those rights and titles.

The Committee strongly recommends that the State party resume negotiations with
the Lubicon Lake Band, with a view to finding a solution to the claims of the Band
that ensures the enjoyment of our rights under the Covenant. The Committee also
strongly recommends that the State party conduct effective consultation with the
Band prior to the grant of licences for economic purposes in the disputed land, and to
ensure that such activities do not jeopardize the rights recognized under the Covenant.

To date, there has been no final determination regarding the Indigenous land rights or title of the
Lubicon Lake Nation. In addition, activities of oil and gas companies have continued unabated
in Lubicon lands without our consent.
Committee on the Elimination of Racial Discrimination, 70th Session (2007)5
In this regard, the Committee, recognising the importance of the right of indigenous
peoples to own, develop, control and use our lands, territories and resources in relation to
our enjoyment of economic, social and cultural rights, regrets that in its report, the State
party did not address the question of limitations imposed on the use by Aboriginal people
of our land, as previously requested by the Committee. The Committee also notes that the
State party has yet to fully implement the 1996 recommendations of the Royal
Commission on Aboriginal Peoples (art. 5 (e)).
In light of article 5 (e) and of general recommendation no. 23 (1997) on the rights of
indigenous peoples, the Committee urges the State party to allocate sufficient
resources to remove the obstacles that prevent the enjoyment of economic, social
and cultural rights by Aboriginal peoples. The Committee also once again requests
the State party to provide information on limitations imposed on the use by
Aboriginal people of our land, in its next periodic report, and that it fully implement
the 1996 recommendations of the Royal Commission on Aboriginal Peoples without
further delay.
While acknowledging the information that the cede, release and surrender approach to
Aboriginal land titles has been abandoned by the State party in favour of modification
4

http://hdl.handle.net/11176/267159
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and non-assertion approaches, the Committee remains concerned about the lack of
perceptible difference in results of these new approaches in comparison to the previous
approach. The Committee is also concerned that claims of Aboriginal land rights are
being settled primarily through litigation, at a disproportionate cost for the Aboriginal
communities concerned due to the strongly adversarial positions taken by the federal and
provincial governments (art. 5 (d)(v)).
In line with the recognition by the State party of the inherent right of selfgovernment of Aboriginal peoples under section 35 of the Constitution Act, 1982,
the Committee recommends that the State party ensure that the new approaches
taken to settle aboriginal land claims do not unduly restrict the progressive
development of aboriginal rights. Wherever possible, the Committee urges the State
party to engage, in good faith, in negotiations based on recognition and
reconciliation, and reiterates its previous recommendation that the State party
examine ways and means to facilitate the establishment of proof of Aboriginal title
over land in procedures before the courts. Treaties concluded with First Nations
should provide for periodic review, including by third parties, where possible.

Concluding Observations of Committee on the Elimination of Racial Discrimination,


Canada, 80th Session (2012)6
The Committee is concerned about reports according to which the right to consultation as
provided in legislation and the right to prior, free and informed consent to projects and
initiatives concerning Aboriginal peoples, are not fully applied by the State party, and
may be subject to limitations. It is also concerned that Aboriginal peoples are not always
consulted for projects conducted on our lands or which affect our rights and that treaties
with Aboriginal peoples are not fully honoured or implemented. The Committee is
further concerned that Aboriginal peoples incur heavy financial expenditures in litigation
to resolve land disputes with the State party owing to rigidly adversarial positions taken
by the State party in such disputes. While acknowledging that the Special Claims
Tribunal constitutes a positive step, the Committee is concerned at reports that this
tribunal does not resolve disputes on treaty rights for all First Nations and does not
provide for all guarantees for a fair and equitable settlement (art. 5).
In light of its general recommendation No. 23 (1997) on the rights of
indigenous peoples, the Committee recommends that the State party, in
consultation with Aboriginal peoples:
(a) Implement in good faith the right to consultation and to
free, prior and informed consent of Aboriginal peoples
6

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whenever our rights may be affected by projects carried out


on our lands, as set forth in international standards and the
State partys legislation;
(b) Continue to seek in good faith agreements with Aboriginal
peoples with regard to our lands and resources claims under
culturally-sensitive judicial procedures, find means and ways
to establish titles over our lands, and respect our treaty rights;
(c) Take appropriate measures to guarantee that procedures before the
Special Tribunal Claims are fair and equitable and give serious
consideration to the establishment of a Treaty Commission with a
mandate to resolve treaty rights issues.
114th Session of the United Nations Human Rights Committee (2015): Concluding
observations on the sixth periodic report of Canada7
While noting explanations provided by the State party, the Committee is concerned about
reports of the potential extinguishment of indigenous land rights and titles. It is concerned
that land disputes between indigenous peoples and the State party which have gone on for
years impose a heavy financial burden in litigation on the former. The Committee is also
concerned about information that indigenous peoples are not always consulted, to ensure
that they may exercise our right to free, prior and informed consent to projects and
initiatives concerning them, including legislation, despite favourable rulings of the
Supreme Court (arts. 2 and 27).
The State party should consult indigenous people to (a) seek our free, prior and
informed consent whenever legislation and actions impact on our lands and rights;
and (b) resolve land and resources disputes with indigenous peoples and find ways
and means to establish our titles over our lands with respect to our treaty rights.

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REQUEST FOR CONSIDERATION UNDER THE EARLY WARNING


AND URGENT ACTION PROCEDURE
Canadas obligations as a State Party to the Lubicon Lake Nation under the International
Convention on the Elimination of All Forms of Racial Discrimination and international law
(a) Article 1
1. In this Convention, the term "racial discrimination" shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in
the political, economic, social, cultural or any other field of public life.

Article 2
1. States Parties condemn racial discrimination and undertake to pursue by all appropriate
means and without delay a policy of eliminating racial discrimination in all its forms and
promoting understanding among all races, and, to this end: (a) Each State Party
undertakes to engage in no act or practice of racial discrimination against persons, groups
of persons or institutions and to ensure that all public authorities and public institutions,
national and local, shall act in conformity with this obligation;

Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention,
States Parties undertake to prohibit and to eliminate racial discrimination in all its forms
and to guarantee the right of everyone, without distinction as to race, colour, or national
or ethnic origin, to equality before the law, notably in the enjoyment of the following
rights:

(e) Economic, social and cultural rights, in particular:


(i) The rights to work, to free choice of employment, to just and favourable
conditions of work, to protection against unemployment, to equal pay for equal
work, to just and favourable remuneration;
(ii) The right to form and join trade unions;
9

(iii) The right to housing;


(iv) The right to public health, medical care, social security and social services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;

(b) General Recommendation 23


In 1997, the Committee on the Elimination of Racial Discrimination (CERD) adopted General
Recommendation 23 on the Rights of Indigenous Peoples.8 General Recommendation 23 sets
out that:
1. In the practice of the Committee on the Elimination of Racial Discrimination, in
particular in the examination of reports of States parties under article 9 of the
International Convention on the Elimination of All Forms of Racial Discrimination, the
situation of indigenous peoples has always been a matter of close attention and concern.
In this respect, the Committee has consistently affirmed that discrimination against
indigenous peoples falls under the scope of the Convention and that all appropriate
means must be taken to combat and eliminate such discrimination.

3. The Committee is conscious of the fact that in many regions of the world indigenous
peoples have been, and are still being, discriminated against and deprived of our human
rights and fundamental freedoms and in particular that they have lost our land and
resources to colonists, commercial companies and State enterprises. Consequently, the
preservation of our culture and our historical identity has been and still is jeopardized.

4. The Committee calls in particular upon States parties to:


(a) Recognize and respect indigenous distinct culture, history, language and way of life as
an enrichment of the State's cultural identity and to promote its preservation;
(b) Ensure that members of indigenous peoples are free and equal in dignity and rights
and free from any discrimination, in particular that based on indigenous origin or identity;
(c) Provide indigenous peoples with conditions allowing for a sustainable economic and
social development compatible with our cultural characteristics;
8

http://www1.umn.edu/humanrts/gencomm/genrexxiii.htm

10

(d) Ensure that members of indigenous peoples have equal rights in respect of effective
participation in public life and that no decisions directly relating to our rights and
interests are taken without our informed consent;
(e) Ensure that indigenous communities can exercise our rights to practise and revitalize
our cultural traditions and customs and to preserve and to practise our languages.
5. The Committee especially calls upon States parties to recognize and protect the
rights of indigenous peoples to own, develop, control and use our communal lands,
territories and resources and, where they have been deprived of our lands and
territories traditionally owned or otherwise inhabited or used without our free and
informed consent, to take steps to return those lands and territories. Only when this is
for factual reasons not possible, the right to restitution should be substituted by the right
to just, fair and prompt compensation. Such compensation should as far as possible take
the form of lands and territories.
6. The Committee further calls upon States parties with indigenous peoples in our
territories to include in our periodic reports full information on the situation of such
peoples, taking into account all relevant provisions of the Convention.
The Lubicon Lake Nation submits that the above sections from ICERD, General
Recommendation 23 impose the following international obligations on Canada:
1. To acknowledge and respect the Lubicon Lake Nations right to self-determination
(Article 1 of the CCPR and Convention on Economic, Social and Cultural Rights);
2. To acknowledge and respect that the Lubicon Lake Nation has the right to participate in
decision-making in matters which would affect our rights, through representatives chosen
by ourselves in accordance with our own procedures, as well as to maintain and develop
our own indigenous decision-making institutions.
3. To protect the Lubicon Lake Nations economic, social and cultural rights (ICERD,
articles 1, 2, 5(e));
4. To ensure that government decisions directly relating to our rights and interests (such as
resource extraction policy and licences) are not taken without the Lubicon Lake Nations
free, prior and informed consent (General Recommendation 23);
5. To recognize and protect the rights of the Lubicon Lake Nation to own, develop, control
and use our communal lands, territories and resources (General Recommendation 23);
6. To acknowledge that where the Lubicon Lake Nation have been deprived of our means of
subsistence, land and development we are entitled to just and fair redress (General
Recommendation 23).
11

To date, there has been no final determination regarding the indigenous land rights or title of the
Lubicon Lake Nation. In addition, activities of oil and gas companies have continued unabated
in Lubicon lands without our consent.
The Lubicon Lake Nation submits that Canada has failed to make appropriate efforts to alleviate
the potentially genocidal consequences of unbridled resource exploitation in unceded Lubicon
Territory and has continued to misrepresent the situation to both Canadians and to members of
international community.
The Lubicon Lake Nation further submits that Canadas failure to consult the Lubicon Lake
Nation regarding resource extraction and failure to negotiate an agreement breaches its
obligations under ICERD, General Recommendation 23, and is inconsistent the
recommendations made repeatedly by the United Nations Human Rights Commission and the
United Nations Committee on the Elimination of Racial Discrimination over the past 35 years.
II.

THE NEED FOR URGENT ACTION

In 1993, CERD adopted a working paper on the prevention of racial discrimination that included
possible measures to prevent, as well as more effectively respond to, violations of ICERD. 9 Two
preventative measures were called for:
(a) Early warning measures to address existing patterns of racial discrimination before they
escalate into conflict;10 and
(b) Urgent action procedures to respond to problems requiring immediate action to
prevent or limit the scale or number of serious violations of ICERD.11
At its 45th Session, CERD decided that preventative measures, including early warning measures
and urgent action procedures, should become part of its regular agenda.12
Today, in accordance with rule 61 of its rules of procedure, CERD establishes a Working Group
to meet during its semi-annual sessions and consider requests made to it under the early warning
measures and urgent action procedure.13

United Nations, Committee on the Elimination of Racial Discrimination Early-Warning Measures and Urgent
Procedures, Online: Office of the High Commissioner for Human Rights
< http://www.ohchr.org/EN/Pages/WelcomePage.aspx>.
10
Prevention of racial discrimination, including early warning and urgent procedures:
working paper adopted by the Committee on the Elimination of Racial Discrimination, CERD, 45th Sess, Annex III,
UN Doc A/48/18 at para 2.
11
Ibid.
12
United Nations, Committee on the Elimination of Racial Discrimination Early-Warning Measures and Urgent
Procedures, Online: Office of the High Commissioner for Human Rights
< http://www.ohchr.org/EN/Pages/WelcomePage.aspx>.

12

The Working Group has a mandate to decide whether to take up requests;14 analyse and assess
information received on situations that may require urgent action; make recommendations on
appropriate action to CERD; and draft decisions and letters addressed to State parties.15
CERD may adopt any decisions or action recommended to it by the Working Group.
At CERD 71st session in August 2007, CERD adopted revised guidelines on the early warning
measures and urgent action procedure.16 These guidelines reaffirmed that CERD shall act under
the early warning measures and urgent action procedure when it deems it necessary to address
serious violations of ICERD in an urgent manner.17
In addition, the revised guidelines outlined indicators for deciding when a matter brought before
CERD requires urgent action. These indicators include:
(a) Presence of a significant and persistent pattern of racial discrimination, as
evidenced in social and economic indicators;
(b) Presence of a pattern of escalating racial hatred and violence, or racist propaganda or
appeals to racial intolerance by persons, groups or organizations, notably by elected or
other State officials;
(c) Adoption of new discriminatory legislation;
(d) Segregation policies or de facto exclusion of members of a group from political,
economic, social and cultural life;
(e) Lack of an adequate legislative framework defining and criminalizing all forms of racial
discrimination or lack of effective mechanisms, including lack of recourse procedures;
(f) Policies or practice of impunity regarding: (i) Violence targeting members of a group
identified on the basis of race, colour, descent or national or ethnic origin by State
officials or private actors; (ii) Grave statements by political leaders/prominent people that
condone or justify violence against a group identified on the ground of race, colour,
descent, national or ethnic origin; (iii) Development and organization of militia groups
and/or extreme political groups based on a racist platform;

13

Guidelines for the Early Warning and Urgent Action Procedures, CERD, 71st Sess, Annual Report, UN Doc
A/62/18 at para 15.
14
Human Rights Project, A Practical Guide to Implementing CERD (2007) Human Rights Project a project of
Urban Justice Centre at 12.
15
Guidelines for the Early Warning and Urgent Action Procedures, CERD, 71st Sess, Annual Report, UN Doc
A/62/18 at para 15.at para 21.
16
United Nations, Committee on the Elimination of Racial Discrimination Early-Warning Measures and Urgent
Procedures, Online: Office of the High Commissioner for Human Rights
< http://www.ohchr.org/EN/Pages/WelcomePage.aspx>.
17
Guidelines for the Early Warning and Urgent Action Procedures, CERD, 71st Sess, Annual Report, UN Doc
A/62/18 at para 15 at para 12.

13

(g) Significant flows of refugees or displaced persons, especially when those concerned
belong to specific ethnic groups;
(h) Encroachment on the traditional lands of indigenous peoples or forced removal of
these peoples from our lands, in particular for the purpose of exploitation of natural
resources;
(i) Polluting or hazardous activities that reflect a pattern of racial discrimination with
substantial harm to specific groups.18
The Lubicon Lake Nation is home to one of the longest unresolved land dispute in Canada, and
more than $14-billion worth of oil and gas has been extracted without its consent. The damage to
the Lubicon Lake Nation by ongoing resource extraction is environmental, economic, social,
emotional, psychological, physiological, cultural and spiritual.
All of the traditional sources of Lubicon drinking water have been contaminated by resource
exploitation activity and the Lubicon are now dependent upon bottled water.
As a result of oil and gas extraction, income from trapping and moose production has
dramatically declined. At the same time, the percentage of people on welfare has multiplied,
rising from 10 to over 95 per cent. These significant declines in economic productivity are
intimately connected to the environmental impact of oil and gas development.
Today, the Lubicon live in overcrowded housing conditions without such basic services as
indoor plumbing. The Lubicon people also suffer from serious health problems related to
resource exploitation activity including: cancers, tuberculosis, epidemic-levels of asthma,
reproduction problems which resulted in 19 stillbirths out of 21 pregnancies in a single 18 month
period, and skin rashes among Lubicon children so severe as to cause permanent scarring.
Most significantly, the Government of Canada and the Government of Alberta refuse to meet
with the Lubicon Lake Nation and our Chief, Bernard Ominayak, to discuss resolution of our
land claim and other matters concerning the Lubicon community.
Both levels of government assert that they now officially recognize the election and leadership of
Billy Joe Laboucan as the duly elected Chief and Council (under the Indian Act of Canada) of
the Lubicon Lake Band and will deal with him in relation to the ongoing negotiations of the
Lubicon land claim. Attached at Annexes 1 and 2 are correspondence from the Government of
Canada and the Government of Alberta in this regard.

On March 4, 2016, Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal
Government, advised the Lubicon by email that:
I've reviewed what you provided and consulted with my legal counsel and team in regard
to your request on behalf of Mr. James O'Reilly, that I meet with him respecting the
Lubicon Lake Band Land Claim. I wish to confirm that I am not able to do so at this time.
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Ibid.

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The Government of Canada is committed to working with Chief Laboucan and his
Council, the duly elected leadership of the Lubicon Lake Band. I would not want to do
anything that would contribute to any internal issues within the community about the
legitimacy of the currently elected leadership, which INAC has legally recognized.
I've been advised that any engagement on my part in discussions along the lines of what
you have proposed could potentially de-stabilize the good relationship Canada has with
the duly elected Chief Laboucan, his duly elected council and the community as a whole.
At this time, I don't believe that such a meeting would be in anyone's interest. It may be
best that Mr. O'Reilly's client, work through and with the duly elected Chief and Council.
Attached at Annex 3 is a copy of the email of Joe Wild, Senior Assistant Deputy Minister,
Treaties and Aboriginal Government, dated March 4, 2016.
The group of people that Canada has chosen to recognize as representatives of the Lubicon Lake
Nation, whom the state party now refers to as a Band, have no lawful authority to represent the
Lubicon Lake Nation as aboriginal title holders over the lands Nation citizens continue to live
on.
Moreover, Canadas refusal to meet with the Lubicon Lake Nation and our Chief, Bernard
Ominayak, is in direct breach of article 18 of the United Nations Declaration on the Rights of
Indigenous Peoples, which explicitly states that:
Indigenous peoples have the right to participate in decision-making in matters
which would affect our rights, through representatives chosen by themselves in
accordance with our own procedures, as well as to maintain and develop our own
indigenous decision-making institutions.
This effort to exclude the Lubicon Lake Nation from negotiations and attempt to settle the
Lubicon land dispute without our consent undermines previous Lubicon negotiations and
development and is a continuation of the abuses that this Committee and other United Nations
bodies have implored the Government of Canada to correct.
The Lubicon Lake Nation submits that the above factors are sufficient to trigger consideration
under the early warning measures and urgent action procedure.

III.

CONCLUSION AND REQUEST

The Lubicon Lake Nation respectfully request that the Committee consider Canadas refusal to
negotiate an agreement with the real Lubicon Lake Nation under its Early Warning and Urgent
Action procedures, to avoid further irreparable harm to the Lubicon Lake Nation and to take all
necessary steps to ensure that Canada complies with UN findings respecting violations of the
rights of the Lubicon Lake people under the International Covenant on Civil and Political Rights,

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the International Covenant on Economic, Social and Cultural Rights, and the General
Recommendation No. 23 of the Committee on the Elimination of Racial Discrimination.

Submitted this 2nd day of May, 2016 by: _____________________________


Chief Bernard Ominayak
Muskotew Sakahikan Enowuk
Lubicon Lake Nation

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ANNEXES
Annex 1:

Letter from Donavon Young, Deputy Minister, Government of Alberta


Aboriginal Relations, dated June 9, 2015

Annex 2:

Letter from Richard Feehan, Minister of Indigenous Relations, Government of


Alberta, dated April 1, 2016

Annex 3:

Email exchange between Joe Wild, Senior Assistant Deputy Minister, Treaties
and Aboriginal Government, and Bill Namagoose, Executive Director of the Cree
Nation Government and Grand Council of the Crees, dated February 17, 2016 and
March 4, 2016

17