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The View from the Aboriginal Rights Coalition

by Waldemar Braul

The Coalition and the Nisga’a

The Aboriginal Rights Coalition of British Columbia (ARC-BC) has enjoyed a 25 year relationship with the Nisga’a in Northwestern British Columbia. The Nisga’a Tribal Council and the Coalition first joined efforts in the early 1970s to block the dumping of mine waste in Nisga’a territory.

Since then, ARC-BC has often pushed government to settle the century-old Nisga’a land claim. A Nisga’a agreement, we argued, would be a symbol of hope and a much-needed gesture of reconciliation between aboriginal and non-aboriginal communities. Finally, on August 4, 1998, the Nisga’a and the two levels of government signed the Nisga’a Agreement, the first modern-day land claim agreement in British Columbia.

We now find ourselves in the Agreement’s critical ratification phase. Where do we stand? Our view can be summarized in the following three principles.

Principle #1: A Provincial Referendum Should Not Be Held.

The federal Reform Party and the provincial opposition call for a provincial referendum on the Nisga’a Agreement.

ARC-BC strongly objects to such a referendum. Here are some of our reasons:
bulletA provincial referendum retroactively changes the rules. The Socred and subsequent NDP governments agreed that the province would not use a referendum to ratify a negotiated settlement. The Nisga’a would never have entered negotiations knowing that the ‘no referendum’ agreement would be dishonoured at the 11th hour.
bulletA referendum will create further uncertainty for business. If negotiated settlements are subjected to 11th hour provincial referenda, First Nations can rightfully ask "Why should we invest in negotiating an Agreement, only to have it destroyed by simplistic and negative sloganeering so typical of referenda?" They might choose instead to play the strong hand dealt them by the Supreme Court of Canada Delgamuukw decision and seek aboriginal title far in excess of the Nisga’a lands set out in the Agreement (some 8% of their traditional territory). So much for the certainty sought by industry.
bulletThe law does not require a referendum. The pro-referendum camp says that the Agreement reflects a constitutional change and thus requires a referendum. Canada’s leading constitutional experts disagree: they say that aboriginal rights are already protected, and the Nisga’a Agreement merely articulates those rights.
bulletIt is discriminatory to expect the Nisga’a to survive a provincial referendum as a condition of enjoying their constitutional rights. We do not impose referenda on other minority groups who seek to exercise their constitutional rights.
bulletA provincial ratification referendum cannot reflect the give and take of negotiations. Twenty years of treaty negotiations preceded the Agreement. A simple "yes/no" referendum question can’t possibly reflect the significant compromises inherent in the 300 page Agreement and which were necessary to obtain closure. Is a negative referendum vote a mandate not to negotiate? Tinker with it? If so, which provisions? These questions cannot possibly be answered in any cogent way by a referendum.

BC’s provincial opposition leader Gordon Campbell recently stated his intention to challenge the government’s refusal to hold a referendum in court. ARC-BC intends to intervene in the litigation.

Principle #2: The Nisga’a Agreement Deserves Civil Public Debate.

Unless a referendum is called, the provincial decision on whether to ratify the Agreement will be made by a free vote in the legislature, likely in late 1998 or early 1999. The equivalent federal decision is also expected at that time. The Nisga’a ratification vote will be held in early November, 1998.

The coming months will see a highly charged debate over whether the Nisga’a Agreement should be ratified. ARC-BC does not fear the inevitable criticism of the Agreement, and in fact looks forward to this debate. It is the lack of public debate which has fostered fear about land claims. Public dialogue will show that modern day treaties are, for all Canadians, a far better way than the Indian Act paternalism.

ARC-BC will not unequivocally approve or disapprove of the Agreement until the Nisga’a membership holds its ratification vote (in November). Once the Nisga’a make a ratification decision, we will stand with them regardless of the outcome; to do otherwise would be to betray our longstanding friendship.

ARC-BC plans to be an active participant in the upcoming public debate. For example, we will hold a public meeting with Nisga’a Chief Joe Gosnell (September 17 at the University of Victoria), host a series of seminars on the Agreement, survey and meet with BC’s provincial and federal politicians, and consult with the business community.

Principle #3: The Nisga’a Agreement is not a Template.

ARC-BC has had a long history not only with the Nisga’a, but with other aboriginal groups, notably the Gitksan and the Sto:Lo. We have come to realize that different First Nations have very different perspectives. In BC, First Nations differ on critical matters such as whether the provincial government should have any role in treaty negotiations and how "sovereignty" should be reflected in a treaty. We recognize that some First Nations do not support the Nisga’a Agreement model.

The differences should come as no surprise. British Columbia’s First Nations have vastly different cultures, land bases, and historical experiences with the Crown. Unfortunately, these legitimate differences do not appear to be reflected in the ‘one size fits all’ negotiation process used by the federal and provincial governments. Our current advocacy work seeks to realign the current negotiation process to make it more responsive.