Why a referendum is necessary

For the past 20 years, the native leadership throughout Canada has been attempting, by various means, to persuade governments to amend the Canadian Constitution to add aboriginal government as a third order of government. The first attempt involved holding four top-level conferences between the prime minister, the premiers, and the native leadership in Ottawa between 1983 and 1987. Those conferences failed to agree on the principle and no amendment to the constitution on aboriginal government was made.

The next attempt was made through the Charlottetown Accord of 1992. It proposed to put into the Constitution an enormous array of special rights for natives including a third order of government. As we know, the Charlottetown Accord was defeated by the good sense of a majority of Canadians in a referendum. Incidentally, native people cast the largest No vote of any definable group because, it has been suggested, “ordinary” natives feared the enormous concentration of power that would be given to their ambitious leaders.

The native leadership then changed their strategy and began to argue that a third order of government has been implicitly within the Constitution all along. That is a view that the courts do not hold. The courts have continued to interpret the Constitution as establishing only two orders of government—federal and provincial—with total legislative authority divided between them.

Now, the Nisga’a agreement attempts to establish a third order of government without the benefit of a formal constitutional amendment. Given the nature of this third order of government as described above, in my view, such a move would be unconstitutional.¹ Others think the same and are prepared to test the issue in court. The BC Liberal Party has launched court proceedings; a separate lawsuit testing the same issue has been commenced by the Fisheries Survival Coalition. If these lawsuits, which will take months or years to complete, are successful, then all or a portion of the Nisga’a agreement would be found to be invalid. The only way it could be validated would be to amend the Canadian Constitution. Before that could be done, under existing BC law, a referendum would have to be held which would, at long last, give British Columbians a chance to vote on the deal.

I suggest that regardless of whether the courts ultimately find there is a legal requirement for a referendum, there are other good reasons to have such a vote—and have it now. The premier says it would be unwise to hold a referendum because the majority cannot be trusted with minority rights. This treaty is not about minority rights but about the rights of us all. It, along with 50 more treaties, will forever restructure the economic, social and political life of the province in a fundamental way. The treaty-making process in its present form will establish 50 or more ethnically based governments through the province financially backstopped forever by taxpayers, transfer massive portions of land and resources to a few, and erode the provincial tax base. The premier acknowledges that this treaty is the most crucial issue now facing British Columbians but balks at giving them a direct say on the matter.

Instead, we are promised a free vote in the Legislature to decide the issue. Unfortunately a free vote is impossible because the provincial government has staked its political future on the passage of the treaty. It is reported that at a June 1998 meeting of his party’s council, the premier expressed the view that the treaty provided an opportunity to gather support from “our traditional allies in progressive, environmental, and community groups.” Later he is reported to have said that “all elements of my party must be in the debate because this is what we believe in.”

Government MLAs cannot vote their conscience or their ridings’ wishes in these circumstances. It would be a brave MLA indeed who would vote against party lines on this one.