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ARC Opposes Proposed Referendum on Nisga'a Treaty

The so-called "Citizens Voice on Native Claims" has undertaken an aggressive advertising and media campaign to scrap the Nisga'a Agreement in Principle. Part of its strategy is to use a province-wide referendum to reject the Agreement.

The Aboriginal Rights Coalition (Victoria) is strongly opposed to the Voice's proposal to hold a referendum on the Nisga'a Agreement in Principle. Starting with the Socred and extending through the NDP administrations, the Nisga'a negotiations have proceeded in good faith that the Agreement would be implemented. The Voice's proposed province-wide referendum is a return to the old practice of not honouring our commitments to First Nations.

Nor is a referendum an adequate tool for considering the complex tradeoffs inherent in the Nisga'a Agreement. Treaty settlements with First Nations necessarily balance a host of economic, social, political, historic, legal, moral and aboriginal interests. The blunt 'winner take all' result of a referendum fails to appreciate the need for careful tripartite negotiations to craft the rightful place of First Nations within Canada. A referendum would open the door for a U.S.-style media blitz designed to spread unfounded fears about the Nisga'a claim. Such a campaign would also distort or ignore the historic and constitutional reasons for negotiating land claims, the deliberative nature of the negotiations, and the actual modest extent of the Nisga'a Agreement.

On November 25, 1997, ARC (Victoria) sponsored a public panel discussion to assess the pitfalls of using a referendum to ratify the Nisga'a Agreement in Principle. The three main speakers were Nisga'a representative Nelson Leeson (Executive Chair of the Nisga'a Tribal Council), Chief Treaty Commissioner Alec Robertson and Law Professor Hamar Foster.

All three speakers severely criticized the notion of a province-wide referendum as a means of approving the Nisga'a agreement in principle. Nelson Leeson, who has been directly involved in the negotiations, stated that the Nisga'a have had to make difficult compromises when negotiating the agreement in principle. He said that the negotiations did not assume that a referendum would be used to vet the agreement. Mr. Leeson pointed out that referendum supporters use the referendum and 'one law for all' ideas only when they suit their purposes.

Chief Treaty Commissioner Robertson provided substantive reasons why the referendum is not a good idea. The following are extracts from his speech:

Treaties take years to negotiate and demand an enormous commitment of human and financial resources. For First Nations it is particularly onerous because most must borrow to build the capacity to negotiate, to hire the expertise they need, and to consult with their people on and off reserve throughout the negotiations. With that much at stake, the parties must find out each others' procedures for approving the final treaty. It is essential that the people who will approve the final treaty are the same people who are telling their negotiators what to negotiate. If any of the negotiators are getting their instructions from a different source than the body that finally approves the treaty, the negotiations are likely to be a monumental waste of time, money and effort.

It is, we think, self evident that the provincial government must honour the commitments it has made to First Nations and to the process. The provincial government cannot agree to hold a referendum because the cabinet would be bound by the results of the referendum which might well be different from the mandates cabinet has already approved. The public has the right to know this, and to know that a referendum would be a breach of faith by the provincial government that would disrupt treaty negotiations in this province and leave First Nations without an alternative to confrontation and litigation.

The Treaty Commission is also concerned by the claim that a referendum is the proper democratic tool to establish a provincial mandate for treaties. Referendums are indeed useful to bring finality to an issue for which a government does not have a mandate; but it should be an issue that can be framed as a simple question to be answered by "yes" or "no". Provincial negotiating mandates are not that kind of an issue. Mandates for treaties must cover a wide variety of topics and must be flexible so that they can evolve over the course of negotiations. A referendum restricts voters to saying yes or no to a proposition; there is no opportunity to explore options that might make the proposition more acceptable. If the current negotiating mandates were rejected by referendum, how would the government know which part of the mandate was unacceptable to a majority of voters? How would the government find out what adjustments to its mandate would make it acceptable? Indeed, how would a rejection enable the government to give any direction to its negotiators?

Hamar Foster, law professor at the University of Victoria, described numerous policy and legal reasons why a referendum is not a good idea. For example, Professor Foster's historical overview showed that "there was no referendum a hundred years ago, when the lands were taken. … Proposing a referendum today, therefore, appears to mean: referendums when I'M in the majority, not when YOU are." Professor Foster provided many more practical, policy and legal arguments against the referendum.