Opposition leader Gordon Campbell says that if his party forms the next government of B.C., he will conduct a referendum on treaties with B.C.’s natives. Campbell claims that such a referendum would establish “the principles that will guide treaty negotiations at the provincial side of the table”.
What “principles” is he referring to? Not those rights guaranteed under the constitution, Campbell assures us. I guess not. The result of a referendum can’t change native rights in the Charter of Rights and Freedoms. The rights of minorities can’t be removed, even by a majority vote in a referendum.
Campbell can’t be talking about legal precedents when talks about “principles”. Those are well established as a result of former B.C. governments who have tried to remove native rights. In 1984, for example, the Gitksan and Wet’suwet’en natives claimed rights to 57,000 square kilometres of traditional territories near Hazelton.
The government of B.C. claimed that those rights were no longer valid and the case went to court. The Supreme Court of B.C. and the Supreme Court of Canada disagreed with the government of B.C.. The resulting court ruling, called the Delgamuukw decision, has become a landmark legal precedent.
The Real Estate Foundation of B.C., who has more than a passing interest in land claims, commissioned a study on the Delgamuukw decision and its implications. It says that “First Nations may have rights to use traditional land without having Aboriginal title over that land.”
Real Estate Foundation study goes on to say that Delgamuukw provides for the use of traditional lands for traditional purposes by natives. They may also use such lands for modern purposes as long as that modern purpose serves the communal good.
Limits on modern use are that natives can’t destroy the potential of the original, traditional, use. For example, natives can’t cut the trees of traditional land that would result in destruction of the habitat for animals who are traditionally hunted.
If “principles” in a referendum can’t override native constitutional and legal rights, what is their purpose? The only purpose such a referendum could serve is to stall the settlement of native land claims. That has been Campbell’s strategy all along. He was opposed to B.C.’s first native treaty with the Nisga’a from the start. Then, after the agreement was ratified, he attempted to have it nullified through the courts because he didn’t like some provisions of it.
Campbell hopes to capitalize on the misguided ideas of people he thinks will vote for him. One of these ideas is that natives should abandon their land claims and become citizens like the rest of us. It’s well-intentioned but not much different than the failed idea of forcing native children into Residential Schools where they were to be indoctrinated into our culture.
The Fraser Institute, who I am not normally fond of quoting, understands something that Gordon Campbell doesn’t. In a report it says “Accordingly in British Columbia, both those Indians who are the legitimate inheritors of Delgamuukw rights and governments have an incentive to sort these issues out in a mutually agreeable way. One technique for doing so is to make treaties which, … trump the Delgamuukw uncertainties.”
In other words, if governments don’t like the sweeping powers of Delgamuukw, then treaties must be negotiated with natives. Natives hold the upper legal hand until they do. The Delgamuukw decision is a recognition of native sovereignty. The Nisga’a treaty upholds that idea.
What galls Campbell more that anything is that it wasn’t his government that negotiated B.C.’s first native treaty. He has a case of treaty envy. He thinks that if he had been first, it would have done it right. Never mind that the federal Liberals agree with the NDP and the Nisga’a people that it is a good treaty.
The lack of signed treaties in B.C. costs one billion dollars a year in lost investment. Sun Peaks stands out as a frail exception to this. As recently demonstrated, even it is threatened by land claims. Without the goodwill of some Shuswap native chiefs, an estimated $1.3 million would have been lost if the televised Much Music spectacle hadn’t gone ahead.
Campbell must let go of the past as surely as B.C.’s natives must grasp theirs more firmly.