B.C. Liberal leader Gordon Campbell vowed Friday to pursue legal action to force a province-wide referendum on the proposed Nisga'a treaty. After a tumultuous week of political debate over the merits of the deal arrived at by the federal and B.C. governments with the Nisga'a First Nation, Campbell escalated his campaign to give British Columbians a chance to approve the treaty or kill it.
Campbell said in an interview he believes the treaty would amend the constitution and therefore, under B.C.'s Constitution Amendment Approval Act of 1991, Premier Glen Clark must hold a referendum. "If the premier is not willing to go forward with a referendum and ask the people of British Columbia, we'll pursue this matter. We will see if we can go to court to require them to go to referendum," he said. "There is no question we are creating a whole new third order of government, we are creating new rights, we are entrenching inequality based on race. Those things are all fundamental to the constitution."
The same view was expressed Friday by Liberal MP Ted McWhinney, who said there is "no question" the proposed treaty finalized last week involves a substantive change in the constitution.
Premier Glen Clark has repeatedly denied the treaty involves a constitutional amendment and says he will not hold a referendum on what he calls "minority rights." He reiterated that position on Friday, comparing the signing of a treaty with the Nisga'a with the emancipation of blacks in the United States. "They didn't have a referendum on civil rights in the southern United States, they didn't have a referendum in Canada when they finally gave aboriginal people the vote in 1961," Clark said. "I think to do so here would be to set a precedent which I don't think would be productive for the country."
Attorney General Ujjal Dosanjh said the province's position is based on its interpretation of Section 35 of the Constitution Act, which reads: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." Said Dosanjh: "Section 35 of the constitution provides for future treaty rights. That's the end of the argument."
The federal government also rejects the notion that the treaty will change the constitution as it applies to aboriginal rights. "They [native Indians] are not acquiring rights," said Malcolm Bernard, a spokesman for the ministry of Indian affairs. "They have had these rights all along. What they are doing in the treaty is specifically defining the rights." Added Bernard: "We believe we are on solid legal ground with this. This does not create a third order of government. It in no way changes or reallocates the balance of powers."
But McWhinney, a constitutional affairs specialist and the member for Vancouver Quadra, said new treaty rights created by land claims are automatically entrenched in the constitution under the Constitution Act of 1982. The premier is therefore bound to put it to the people for approval before the legislature can vote on it, he said. B.C. is the only province with this requirement, he added. "The premier could change the [B.C.] constitution law [requiring a referendum], but he'd face a political firestorm to do it," McWhinney said.
McWhinney said constitutional law allows parties to request clarification from the Supreme Court of Canada in the form of "an advisory opinion ruling on constitutionality." He added: "The obvious person to do it, if he has any doubts, is the premier. But if he doesn't want to, private-interest groups or individuals could take the matter up." If Campbell or Mike Scott, aboriginal-affairs critic for the federal Reform party, go to the court for clarification, they could also ask for an injunction restraining the legislature from acting until the court rules. That could take two years, he said.
University of B.C. constitutional expert Doug Sanders disagreed with McWhinney's view that adopting the treaty would amount to changing the constitution. But he said it's not illogical that experts would believe that because the constitutional arrangements for the Nisga'a change as a result of the treaty, a constitutional amendment has been made. "And certainly the constitutional rules will change after the treaty comes into force," he said. "But you have to look at the nature of constitutions and how they are interpreted," he said. "One of the standard phrases about constitutional language is that constitutions must be interpreted as continuing to speak. It isn't that the constitution speaks in 1867 or 1982 for those amendments. Therefore, the idea that the categories that it is referring to are frozen as of the time of the enactment of the constitutional provision, is clearly unworkable. For example, Indian reserves come within federal legislative jurisdiction, but there are thousands of examples of the surrender of reserve lands. The content of the constitutional category changes, but the category remains the same."
But, McWhinney said, if the treaty is not a constitutional amendment, it is "no better off than any private agreement to buy an automobile or anything else. It would be subject to repeal by any other provincial statutes."
Senior aboriginal leaders are totally opposed to a B.C. referendum, although the deal will go to a vote by the Nisga'a people. "History has indicated to us that we would always lose," Joe Gosnell, president of the Nisga'a Tribal Council, said earlier this week.