CKNW Editorial
for October 23, 2000

I think the provincial Liberals are going to have to re-visit their position on aboriginal affairs – I say that because I think events are going to make a mess of their present one. I say this as a person who has supported their position until now and still think that if they are not right, they ought to be. The trouble is that events are passing them by.

I believe now as I did some years ago that there ought to have been a referendum on the principles by which would guide settlement of native land claims.

I believe now, as I did then, that the Nisga’a case was unconstitutional in that it effectively amended the constitution without going through the appropriate process which, in BC, would have required a referendum.

I believed then and believe now that non Nisga’a residents of Nisga’a lands are deprived of their basic political rights.

I believed then and believe now that in setting up special native fisheries you create a fishery based upon race.

I believed then and believe now that these are honourable, decent arguments which have not been addressed.

But I have also read the case which Mr Campbell and others have brought and have considered the arguments and the judgment in the light of what the Supreme Court of Canada has been doing.

The basic argument of Nisga’a – and it must be noted that if they’re right they will be right for every native band in the country whether they have a treaty or not – is this. While it may be true that sections 91 and 92 contain the entire spectrum of political power to be exercised in this country – and the Supreme Court has declared that to be so long ago – that section 35 of the constitution permits all native rights to be enshrined in the constitution, including the right to self government. Now this is interesting since not only had the question of self government not been raised when section 35 was passed in 1982, the question of whether or not there should be aboriginal self government was put to the people as part of the Charlottetown referendum of 1992 and defeated. But this will all go by the boards in my opinion.

I believe that the Supreme Court of Canada, in the mood we now find it, will declare that Nisga’a, and by extension all native bands, had some form of self government before the Europeans came and that this permits the federal and provincial governments to agree with bands to whatever form of self government they wish and have it automatically part of the constitution without the need of any constitutional amendments.

But, you say, that has not yet been established. Except it has, subject to appeals. The law of the land as it stands is as I have just stated it. I predict that the case may be reversed in the Court of Appeal but that the Supreme Court of Canada will sustain the lower court.

If I’m right, the question becomes what does the Liberal party now do?

A referendum as to principles of settlement is, unhappily, moot if the courts rule in favour of aboriginal self-government. In that case it is not a matter of determining principles but making deals in light of the Nisga’a deal. If I’m wrong, and the Supreme Court of Canada rules in favour of the Liberals then that’s another thing but the trouble is, that’s a year or two down the road and in the meantime, promising a referendum is an empty promise that, quite frankly, will cost the Liberals votes while bringing few if any benefits.

I think there is a better course. I believe the Liberals should promise self government on the basis of the Sechelt model, pending a ruling of the Supreme Court of Canada. I think they should also promise that the political rights of non natives will be protected properly, not in the slap dash way they are dealt with by Nisga’a. I think also that the Liberals should press their lawyers, if they haven’t done so already, for what is known as a per saltem appeal to the Supreme Court of Canada which is to say that the matter by-pass the BC Court of Appeal. The matter is going to the top anyway – it’s in the interests of all Canadians that it get there and be disposed of as soon as possible.

There is one more thing. If I’m right as to what the Supreme Court of Canada will do, those Canadians east of the Rockies who have assumed that Nisga’a is just some minor matter involving BC and some Indians are in for a very rude awakening indeed