BC Attorney General Geoff Plant tabled the eight questions to be asked in the mail-in referendum ballot on treaty negotiation principles on March 13, in the provincial legislature.
Union of BC Indian Chiefs president Chief Stewart Phillip was quick to denounce the referendum questions as seeking a mandate to perpetuate the same outdated colonial relationship BC First Nations have always had with the provincial government.
“As First Nations we have a unique constitutional relationship with the provincial and federal governments. The referendum questions presented today demonstrate a complete and utter disregard and denial of our constitutional relationship,” said Chief Phillip.
Two million ballots containing the eight questions will be mailed out to the BC electorate beginning April 2, and citzens will have until May 15, to return their ballots.
“In the end, what matters is not how many people vote. It is that people can vote to help shape this future,” Premier Gordon Campbell told the legislature.
That night in an interview on the public affairs talk show Voice of the Province, A.G. Geoff Plant defended the referendum as a conversation directly with the BC electorate. He said that the referendum has nothing to do with trying to undermine constitutionally protected rights.
Plant argued that the referendum will give the BC Liberals a renewed mandate from the people that will help move the treaty process forward. Plant went on to explain that because the referendum is being conducted under the Referendum Act, there has only to be a majority of 50 percent plus one on any question is binding on the government and has to be implemented.
First Nations Summit leader Bill Wilson phoned in to comment, “These people have opened up a house of ill repute … Let’s get on with negotiations, building a better future. For him to say that he thinks he knows what’s best for Indians is simply a repetition of the old assumption that white people know what’s best for Indians.”
Wilson said that all the referendum process is doing is giving racists in the province a legitimate platform to make racist statements.
The First Nations Summit has adopted a strategy developed by the AFN that outlines 12 “direct legal, political and communication action strategies” in a document titled A Communications and Media Approach to the BC Government’s Referendum on Treaty Negotiations.
-silent vigils outside the homes of prominent politicians and business leaders
-making appearances at meetings of ministers, events, business group conferences, environmental gatherings, cruise ship facilities etc. to hand out brochures and engage people
-set a date to organize rally/march to either the BC cabinet office at Canada Place or other symbolic venue
-identify potential legal challenge to either the treaty referendum, breaking of aboriginal law, breach of good faith negotiations and undertake a public spectacle of filing a writ in court
In a legal analysis, aboriginal rights lawyer Louise Mandell points out that the provincial government lacks the jurisdictional authority to implement the results of the referendum.
First, unextinguished aboriginal title, which is a burden on Crown title, can only be lifted by a treaty with the federal government.
Second, provincial legislative power is limited by the federal government’s exclusive jurisdiction over Indians and lands reserved for them.
Third, the provincial legislative power is limited by the fiduciary relationship between the Crown and aboriginal peoples. In other words, governments must act in the best interests of aboriginal peoples and ensure a fair process if and when aboriginal people enter into a treaty.
“When read in light of the recent court decisions of Taku River Tlingit and the Haida, the Mandell Analysis clearly shows that the province does not have the power to proceed unilaterally with any attempt to implement the results of the referendum.
“Clearly, the referendum questions seek a self-serving mandate to perpetuate an outdated ,economically racist and colonial relationship, of which many features have been repudiated by the courts,” said Chief Phillip.
Proposed treaty referendum questions
Whereas the Government of British Columbia is committed to negotiating workable, affordable treaty settlements that will provide certainty, finality and equality;
Do you agree that the provincial government should adopt the following principles to guide its participation in treaty negotiations?
1. Private property should not be expropriated for treaty settlements.
2. The terms and conditions of leases and licenses should be respected; fair compensation for unavoidable disruption of commercial interests should be ensured
3. Hunting fishing and recreational opportunities on Crown land should be ensured for all British Columbians.
4. Parks and protected areas should be maintained for the use and benefit of all British Columbians.
5. Province-wide standards of resource management and environmental protection should continue to apply.
6. Aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia.
7. Treaties should include mechanisms for harmonizing land use planning between aboriginal governments and neighbouring local governments.
8. The existing tax exemptions for aboriginal people should be phased out.