Vancouver Courier
for October 4, 1998

Premier Clark rejects a public vote on Nisga'a with the argument that "you don't hold referenda over minority rights." Sounds so neat, tidy and obviously correct. Why, everyone knows you don't vote on things like free speech and stuff like that.

The refrain has been picked up by political commentators whose softness of heart has extended to their brain. And it is a neat and tidy little aphorism if only because it's an argument stopper - what sort of a cretin would dare suggest that anyone, aboriginal or otherwise, could have their basic rights taken away by what writer Stephen Hume calls a "disgruntled majority".

There is, however, a slight problem with the argument - it is utterly unsustainable and based upon a totally false premise. In fact, it isn't even worthy of the word "argument".

In the first place, majorities do vote on "rights". Otherwise why is the Legislature going to vote approval of the treaty? The question is not whether you vote on "minority rights" but who votes?

But more important is the false premise upon which this "argument" is based. If you press the premier or any of his supporters, they'll tell you that we cannot vote against "entrenched aboriginal rights". I agree. The Charter of Rights and Freedoms forbids it. But "entrenched aboriginal rights" aren't in issue - we're dealing with brand spanking new rights here which will be constitutionally entrenched to one clan of one tribe of aboriginal peoples to the exclusion of the rights of all others.

I hate doing this to you, folks, but we have to do a bit of constitutional talk.

Aboriginals have exactly the same rights all Canadians have under the Charter and the traditions of the Common Law. They have, in addition, Section 35 of the Constitution which says "The existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed." There was a later important amendment which I'll get to in a moment. We are talking, then, about those rights granted in years past by treaty. Those existing rights do not include the right to an aboriginal commercial fishery nor to a third level of government requiring the surrender or alteration of rights of the province under section 92.

The Nisga'a Treaty deals with three new "rights".

It eliminates rights of non natives living on the lands; it grants a special right to fish based upon race; and it alters the division of powers under our constitution by delivering a new system of government far superior than that given to any city or municipality.

None of these new rights - which dramatically reduce the rights of non aboriginals - even with the fertile imagination of Glen Clark, could be construed as "existing aboriginal and treaty rights" under section 35.

But here's the rub. Here's that amendment to section 35 I mentioned. In 1984 section 35 was changed to include "rights" in any future treaty - like Nisga'a, for example.

What the NDP government therefore proposes is this - with a tame majority, we'll approve new and revolutionary rights, based upon race on the excuse that they are "existing" rights, even though they're clearly not. Having done that, these new rights will then, by the magic of fancy legal footwork, then be part of section 35 as if they'd been there all along! Pretty neat, huh?

Forget laughable argument that this will be a "free vote" - no NDP MLA would dare oppose what Glen Clark has called "his deal."

Referenda are part of our political culture. We used one in 1917 to get approval for wartime conscription and did the same in 1944. We have had two referenda, accepted by Ottawa, on Quebec separatism. We voted on the Charlottetown deal which, incidentally, rejected entrenched Aboriginal self government, and we've used them extensively for matters like drinking laws, Sunday activities and public works.

In short, wherever a dramatic change in the social compact was in question, we asked the people.

Can anyone seriously argue that Nisga'a - the template as Mr Clark has aptly named it - will not mean new rights for some (based upon race) and diminished rights for the others? Does anyone suggest that Nisga'a and the treaties which must inevitable follow won't dramatically alter the social compact under which we live?

Make no mistake - things must change. The Delgamuukw decision makes that obligatory but this goes much further. It is a social revolution in the making with huge consequences, good and bad, for everyone.

If this treaty is good overall the public will support it. People won't concern themselves with details - though we should be concerned about some of them - but will assess the treaty on an overall basis.

Glen Clark thinks this decision which will radically alter B.C. forever should be made by the NDP caucus.

I say that like Charlottetown, the people should decide.

But then, I believe in democracy.