A Provincial Nisga'a Referendum? A Bad Idea!
By Wally Braul, President, ARC Victoria
A province-wide Nisgaa Agreement referendum is ill-conceived and would be an act of bad faith. Here is why:
- The pro-referendum camp wants to retroactively change the rules. The Socreds under Bill Vander Zalm, on entering the Nisgaa negotiations in 1990,
considered but dismissed the use of a referendum. Subsequent NDP administrations continued the no-referendum position. The parties agreed that provincial
and federal ratification would take place by executive cabinet decision and legislation. Referendum proponents now want to break the agreement. The
Nisgaa would never have entered negotiations knowing that the agreement would be broken at the 11th hour.
- A referendum will create further uncertainty for business. Negotiations produce predictable results; litigation does not. But if First Nations face
demands by government that negotiated agreements be ratified by a provincial referendum (with its attendant simplistic and negative sloganeering), they can
rightfully say "Why bother? Well see you in court." Using the strong hand dealt them by the Supreme Court of Canada Delgamuukw decision, the Nisgaa
could seek remedies covering 100% of their traditional areas; compare this with the current Agreement which sees Nisgaa lands comprising only 10% of
their traditional territory. So much for the certainty sought by industry.
- The law does not require a referendum. The pro-referendum camp says that the Agreement reflects a constitutional change and thus is subject to
referendum legislation. This is simply not true. No one can dispute that the Nisgaa have "existing" aboriginal rights under section 35 of the Constitution Act.
The Nisgaa decided to breathe life into these rights by negotiation rather than litigation. Other recent aboriginal rights agreements in Canada, even though
they have a broader jurisdictional and geographic scope than the Nisgaa Agreement, were not Constitution Act amendments.
- It is discriminatory to expect the Nisgaa to survive a provincial referendum as a condition of enjoying their constitutional rights. We do not
use referenda to test the wide range of human rights, religious, free speech and other legislation which implements constitutional rights. We do not impose
referenda on other minority groups who seek to exercise their constitutional rights.
- The Nisgaa did not call a referendum when non-aboriginals used their lands. Non-aboriginal industries and individuals have historically used Nass
Valley resources without Nisgaa consent. The Nisgaa, for at least a century, objected and sought a treaty. The Nisgaa search for peaceful relations never
resorted to threaten the minority non-aboriginal settlers with referenda.
- A provincial ratification referendum cannot reflect the give and take of negotiations. There have been 20 years of treaty negotiations and twenty
years of compromises by all sides including significant compromises by the Nisgaa. A referendum cant possibly reflect that and adequately portray the
real choices that must be made to obtain closure on these land rights negotiations.
- A referendum provides little or no guidance. At most, a referendum produces "Yes/No" responses to straightforward questions. What would a negative
vote against the Nisgaa Agreement tell us? Is a negative vote a mandate not to negotiate? Tinker with it? If so, what provisions? These questions cannot
possibly be answered in any cogent way by a referendum. We may be justifiably cynical of politicians today, but a referendums simplistic and blunt
approach would create even more cynicism of the political process. The complex Nisgaa issues call for principled political leadership and intelligent and
passionate debate to determine ratification; cold referendum numbers provide little if any help.
- Referenda are divisive. There is a real risk that referendum campaigns will invoke sloganeering and simplification and add fuel to divisiveness. This is all
too evident in U.S. referenda, where the debate boils down to trading aggressive 10-second television bits.
- Referenda are costly. The costs of administering a referendum will be high. Many other First Nations are negotiating claims, and the pro-referendum
reasoning would suggest that all agreements be subject to referenda. And, if post-referendum amendments are negotiated, these would be put to referendum
as well. Each referendum campaign will cost government, let alone the First Nations and interest groups, many millions of dollars. The costs are even higher if
the referendum proponents convince the federal government to hold a nation-wide referendum.
- A referendum at most can be used to inform a negotiating mandate. If a provincial referendum ever makes sense, it can serve as one source for
determining a negotiating mandate. Referendum proponents dont tell the public that Nisgaa negotiating mandates were set some time ago after intensive
public scrutiny on four separate occasions: when the Socreds entered the negotiations in 1990, during the Wadell all-party legislative hearings, and during the
1991 and 1996 election campaigns.
The Aboriginal Rights Coalition is a Canada-wide network of church organizations, community and social justice groups, and First Nations. The Coalition has
enjoyed a 25 year relationship with the Nisgaa. Our experience tells us that a provincial Nisgaa referendum, more than any other event in recent decades, will fuel
divisiveness. The last thing we need in British Columbia today is a Nisgaa provincial referendum.