WHY I WON'T BE VOTING

The B.C. treaty referendum raises serious legal issues for a former judge, Thomas Berger Vancouver Sun Monday, April 15, 2002

I won't be voting in Premier Gordon Campbell's referendum. Not because it is a hollow exercise, a waste of time and money. It is in my view a serious, not a frivolous matter. Serious because the referendum is subversive of the rule of law.

The referendum consists of a series of questions to which the government wants answers. The key question in Campbell's referendum is: "Aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia. Yes or No?"

But Campbell himself has already obtained an answer to this question. In 1999, when he was leader of the official Opposition, Campbell and his now Attorney-General Geoff Plant brought a lawsuit challenging the constitutionality of the Nisga'a Treaty on this very ground. He argued that First Nations have no inherent right to self-government under the Constitution, but only such powers as are delegated to them by Canada and B.C. He asked the B.C. Supreme Court to answer "Yes" to this question.

In July 2000 when Justice Paul Williamson handed down his judgment, Campbell got his answer. The judge ruled that under the Constitution First Nations possess an inherent right to self-government. They do not possess merely delegated powers. The answer to Campbell's question, delivered by the court, was "No."

Moreover, Campbell argued that under the Constitution the federal and provincial governments could not, in a treaty, set out provisions defining an inherent, constitutionally protected right of self-government. But Williamson held that they could. So Campbell had his answer there too.

In fact, Campbell's lawsuit was an important step in clarifying First Nations' right to self-government. Campbell and Plant decided to abandon their appeal and the decision in their case therefore stands as the key statement of the law in this area.

In Campbell's lawsuit, the issue came to this:

Is the Nisga'a government to be a kind of municipal government, its powers of self-government, even in areas vital to Nisga'a interests, to be handed over by the federal and provincial governments and which can be lost at any time if those governments decide to take them back?

Or is Nisga'a government to be acknowledged as a political institution exercising, on behalf of the Nisga'a Nation, an inherent right of self-government, originating in the history of the Nisga'a people and protected by our Constitution?

The decision in the case means that when treaties are made and powers of self-government recognized, Canada and B.C. cannot, as the political winds shift, take away these powers. Once recognized in a treaty, as they have been in the Nisga'a Treaty, they are protected by Section 35 of the Constitution; they constitute a third order of government.

This is not to say that neither Ottawa nor B.C. can never legislate to infringe on the inherent right of self-government. They can, but not on the basis of shifting ideologies as governments come and go; they can only do so, the Supreme Court of Canada has held, if it is in pursuit of a valid legislative objective and if they can justify the infringement according to the honour of the Crown.

So now this very question has turned up as the centrepiece of Campbell's referendum. Campbell has already obtained his answer from the courts. It is "No." But he won't take "No" for an answer.

Moreover, the answer obtained in the referendum will be binding on the province. That is what the Referendum Act says.

Assuming Campbell gets the answer he wants, it is an answer calculated to undermine the treaty process.

Under any modern treaty, powers of aboriginal self-government are essential for administering the land, resources, fish, wildlife, funds and other treaty rights of the First Nations, and for fulfilling the treaty obligations that the First Nations themselves assume towards Canada, B.C. and their own people.

Who is to govern on aboriginal lands? Who will regulate the aboriginal fishery? Who will regulate hunting on aboriginal lands?

The answer inevitably has to be: the First Nations. What would be the point of a treaty that established title to an aboriginal land base, an aboriginal fishery, an aboriginal wildlife harvest, but left these resources to others to govern? If we are to enter an era of co-management of fish, forests and wildlife, First Nations must be key players, with authority to take responsibility for their own land and resources.

Moreover, treaties will cover such subjects as aboriginal language, culture, adoption, heritage and artifacts. These go to the heart of aboriginal identity. Will First Nations settle for a form of local government with such powers as Campbell chooses to confer on them and which he can at any time withdraw? I do not think it is likely.

But even if the First Nations came to the table, to negotiate with the province on Campbell's terms, what about the federal government? They have since 1995 recognized an inherent right of aboriginal self-government that they are quite prepared to see affirmed in treaties.

Is Ottawa to be expected to repudiate its policy and join B.C. in insisting that there is no inherent right of aboriginal self-government, that any powers of self-government in a treaty can be withdrawn by Ottawa or Victoria?

If so, they'll have to identify in the treaty the federal and provincial powers that are being delegated to First Nations. It is not always easy to distinguish them. If, on the other hand, Ottawa stands firm on its own policy, the parties will have to agree what cluster of powers of self-government recognized in the treaty are specifically provincial and may be withdrawn at any time, leaving intact the cluster of federal powers which cannot be withdrawn. This type of exercise could itself stall treaty-making indefinitely.

I have no doubt that Campbell and Plant sincerely want to engage in treaty-making. And yet they are hammering together a Procrustean bed that will bind them to a policy amounting to nullification of the treaty process.

In 1982, when we adopted the new Canadian Constitution and Charter of Rights, we granted constitutional protection to aboriginal rights and treaty rights. Campbell's lawsuit has now established that aboriginal self-government is a constitutionally protected aboriginal right and, when recognized in a treaty, a constitutionally protected treaty right. Plant tells us that the referendum cannot take away such rights.

Of course it can't.

Then why have a referendum? In particular, why include a question on self-government?

Campbell is asking the electors to back his government into a corner where he will be obliged to refuse to acknowledge in the treaty process that First Nations have a stand-alone right of self-government with powers that are not dependent on the goodwill of the federal and provincial governments.

Campbell, if he gets the answer he wants, will be bound to refuse to recognize in treaty negotiations the law as laid down by the courts -- in fact, as laid down in a lawsuit that he himself brought. And in which he obtained the answer he didn't want.

Suppose Campbell had won his lawsuit? Or suppose it had been a lawsuit about his constitutionally protected rights? Would he be willing to put his hard-won verdict at risk in a referendum? Would he wish to see his rights put up for political auction?

The First Nations are a minority in our province, vastly outnumbered in demographic terms. They look to the Constitution and the courts, as minorities must, to protect their rights.

In a democracy you don't put minority rights up for auction. And governments don't hold referendums with a view to obtaining a mandate from the majority to refuse to recognize minority rights.

The greatest of Canadian statesmen have been willing to change their minds when the law has unfolded in a way that did not suit them.

Then-prime minister Pierre Elliott Trudeau said, in 1969, that he would not recognize aboriginal rights. They are too shadowy, he said, to be acknowledged in the modern world. But when the Supreme Court of Canada, in the Calder case (the case the Nisga'a brought in 1973), affirmed that there was a place for aboriginal rights in Canadian law, Trudeau changed his mind.

By the time he opened the Conference of First Ministers on March 15, 1983, to consider the definition of aboriginal self-government, he said that he had given more thought to this subject, since he became prime minister, than to any other.

He said, in his opening statement: "All options revolve around the semi-autonomous aboriginal community, the hub and heart of the system."

He said that the object of the conference would be to establish a constitutional framework to serve "as the foundation for constructing the network of institutions, laws and government instrumentalities needed to sustain the aboriginal peoples of Canada in the political and cultural uniqueness they are seeking."

Does that sound like a municipal government that possesses only delegated powers? Trudeau had come a long way since 1969, when he had treated aboriginal rights as "historical might-have-beens."

What Campbell is, in effect, saying, is:

"We don't care what the Constitution says about your rights. We don't care that the courts have affirmed your rights. We are going to ask the people of the province to give us a mandate to treat your rights as non-existent.

"As far as we are concerned, you have no inherent right of self-government."

This is a stance that should trouble us all.

I know that in British Columbia we have grown used to our politicians waging their fierce ideological struggles to the political death. But it is useful to raise our eyes to the national horizon, to acknowledge that we are citizens of Canada, and that the Canadian Constitution recognizes rights of minorities and First Nations.

It is the part of good citizenship and good government to take this broader, historical perspective.

The inherent right of self-government is enshrined in the Constitution of our country. The referendum is an exercise that is inconsistent with Canadian tradition. It isn't a question of voting for or against.

The whole exercise is misbegotten; it will be a pernicious precedent -- and this will be so no matter what the result of the vote.

We should not participate; it is essential to avoid conferring the slightest legitimacy on this abuse of the referendum process.

Thomas R. Berger was lead counsel for the Nisga'a Nation in the Calder case in 1973, which opened up the issue of aboriginal rights, and in 2000 in Campbell versus Canada, B.C. and the Nisga'a Nation, in which the inherent right of aboriginal self-government was affirmed. His book "One Man's Justice" is to be published in the fall.

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