A Provincial Nisga'a Referendum? A Bad Idea!

By Wally Braul, President, ARC Victoria

A province-wide Nisga’a Agreement referendum is ill-conceived and would be an act of bad faith. Here is why:

1. The pro-referendum camp wants to retroactively change the rules. The Socreds under Bill Vander Zalm, on entering the Nisga’a 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 Nisga’a would never have entered negotiations knowing that the agreement would be broken at the 11th hour.
   
2. 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? We’ll see you in court." Using the strong hand dealt them by the Supreme Court of Canada Delgamuukw decision, the Nisga’a could seek remedies covering 100% of their traditional areas; compare this with the current Agreement which sees Nisga’a lands comprising only 10% of their traditional territory. So much for the certainty sought by industry.
   
3. 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 Nisga’a have "existing" aboriginal rights under section 35 of the Constitution Act. The Nisga’a 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 Nisga’a Agreement, were not Constitution Act amendments.
   
4. It is discriminatory to expect the Nisga’a 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.
   
5. The Nisga’a did not call a referendum when non-aboriginals used their lands. Non-aboriginal industries and individuals have historically used Nass Valley resources without Nisga’a consent. The Nisga’a, for at least a century, objected and sought a treaty. The Nisga’a search for peaceful relations never resorted to threaten the minority non-aboriginal settlers with referenda.
   
6. 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 Nisga’a. A referendum can’t possibly reflect that and adequately portray the real choices that must be made to obtain closure on these land rights negotiations.
   
7. 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 Nisga’a 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 referendum’s simplistic and blunt approach would create even more cynicism of the political process. The complex Nisga’a issues call for principled political leadership and intelligent and passionate debate to determine ratification; cold referendum numbers provide little if any help.
   
8. 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.
   
9. 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.
   
10. 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 don’t tell the public that Nisga’a 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 Nisga’a. Our experience tells us that a provincial Nisga’a referendum, more than any other event in recent decades, will fuel divisiveness. The last thing we need in British Columbia today is a Nisga’a provincial referendum.