April 25, 2002

The Meaninglessness is the Meaning

I have to admit I was concerned about the "binding" referendum we're having in B.C. on "the principles to guide the provincial government's approach to treaty negotiations". But I relaxed when I saw the proposal that "aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia." I'm comfortable with this type of language, as I used it with great success in my own New Year's resolutions. I don't say that I made any verifiable commitment to eat more vegetables, but I did resolve that the principles to guide my approach to nutrition should include consideration of foods which have the characteristics of vegetables. By the end of January I realized that vegetables can be eaten with barbecue sauce, and that they share this characteristic with ribs, chicken, and any number of other savoury health foods.

BC Attorney General (and Minister Responsible for Treaty Negotiations) Geoffrey Plant showed similar culinary flexibility when he took the sixteen flavours of mush prepared by the Select Standing Committee on Aboriginal Affairs and whipped them into eight fibre-free smoothies for the referendum. At the end of March, just before the mailing of ballots was due to begin, Chief Judith Sayers of the Hupacasath Nation asked B.C.'s Supreme Court to halt the process. Justice Robert Hutchison refused to grant an injunction, finding the questions possibly misleading but benign. This may be the most concise summary yet offered, and not a bad description of the BC Liberals' entire aboriginal self-government platform.

The A-G seemed pleased enough to have judicial confirmation of the referendum's weightlessness, though it's hard to imagine similar delight among those who hoped a referendum would leave the provincial government in a position to dictate the terms of future treaties. Self- collared bellwether Elizabeth Nickson nicely captured this group's thinking in her July 27, 2001 National Post manifesto I want a piece of this First People's action. Here in British Columbia, according to Nickson, "the rest of us, which is to say the 3.29 million who are not the 93,000 natives, or the weak-minded and petty larcenists who feed on the aggrievement business, are feeling in a state of major GRRRR. A referendum? Bring it on."

The strength of Nickson's convictions is impressive, given that her research on aboriginal title in Canada seems to have been confined to Theodore Roosevelt's The Winning of the West (1889- 1896). "To recognize the Indian ownership of the limitless prairies and forests of this continent -- that is to consider the dozen ... who hunted at long intervals over a territory of a thousand square miles as owning it outright -- necessarily implies a similar recognition of the claims of every white hunter, squatter, horse-thief, or wandering cattle-man." Ms. Nickson helpfully deletes the phrase "squalid savages" from Roosevelt's text, lest any reader doubt the great man's standing as an "Indian sympathizer" whose views mark the limits of ecumenical benevolence.

"The Indians of North America are conquered peoples", according to Nickson, whose "moral claim on our national conscience" depends on the belief that they were here before all others. "But if they were not -- and native communities are doing just about everything they can to hold back the progress of scientific investigation into this -- then they are just another migratory race." Whatever damage Judge Elizabeth might assess to their moral claim, based on prior visits from overseas or outer space, these "migratory races" still have a legal claim in Canada's courts flowing from their ancestors' presence here at the time the Crown asserted sovereignty. The founding accomodations had somewhat less to do with the Europeans' theology than with their inability to control a large territory without help from its existing population.

"Nowadays," wrote Roosevelt, a few paragraphs after the excerpt Nickson chose, "we undoubtedly ought to break up the great Indian reservations, disregard the tribal governments, allot the land in severalty (with, however, only a limited power of alienation), and treat the Indians as we do other citizens, with certain exceptions, for their sakes as well as ours." Though rapt by this vision of utopia, Roosevelt was willing to admit that the U.S. government hadn't possessed the military power to realize it in times past. "There was no possible alternative, therefore, to treating their tribes as nations, exactly as the French and English had done before us."

And here is the place where a thoughtful Roosevelt reader might ask herself, "Could it be that Indians living where England retained control are not conquered peoples after all, but Nations that still enjoy the protection of the Crown? Is it possible that the Court is still trying to sort out how much authority the Crown has conceded to Canada's federal government, provincial governments, and First Nations over various stretches of land and water? And that treaty negotiations are nothing more than attempts to settle these disputes out of court?"

Unburdened by doubts of this nature, Nickson ends by adapting one of Dwight Eisenhower's cigarette-chewing maxims. "Premier Gordon Campbell and the citizens of British Columbia might remember in the year ahead that history does not long entrust the care of freedom to the weak or the timid." I assume that her intent was to rally the GRRRRs around the referendum, as well as to thank Conrad Black and Barbara Amiel for lending her the Big Book of Bombast. But with due regard to the musings of dead American Presidents, no unilateral exercise of provincial power (popularly endorsed or not) can limit the ability of aboriginal people in Canada to pursue their claims in court.

A few days later the Post ran a column by Gordon Gibson, one of Premier Campbell's more knowledgable (if less colourful) defenders. Gibson, a former leader of the BC Liberal party, noted that "a referendum could not possibly lead to a diminution of aboriginal rights," which are protected under Section 35 of the Constitution. He also suggested that the government has no incentive to "craft a referendum that would make agreement harder," a particulary credible statement given the pedigree of those telling Campbell not to do so.

Gibson asserted that the government's "going-in position is crystal clear from their election platform: Indian government will be delegated, not sovereign. (Of course, the court has yet to pronounce on this.)" The last was some fine stick-handling. The Supreme Court of British Columbia had already heard Messrs. Campbell, Plant, and de Jong (then litigious members of Her Majesty's Loyal Opposition) argue the point, in their challenge of the settlement legislation enacting the Nisga'a Treaty. Justice Williamson ruled that the 1867 Constitution Act "did not distribute all legislative power to the Parliament and the legislatures", and "did not purport to, and does not end, what remains of the royal prerogative or aboriginal and treaty rights, including the diminished but not extinguished power of self-government which remained with the Nisga'a people in 1982". The three senior BC Liberals had filed an appeal of Williamson's decision before the election, and, when Gibson wrote, were looking for a face-saving way to drop it.

In early June, days after being sworn in as Premier, Gordon Campbell had met with Prime Minister Chretien and magnanimously offered to withdraw the appeal. All he asked in return was that Ottawa help transform it into a referral to the Supreme Court of Canada. This would be the legal equivalent of offering to turn your own compost heap if your neighbour agrees to help shovel, and Lawyer Chretien did not run to grab his work gloves. What the federal Liberals wanted Campbell to drop was his referendum plan, which, as Minister of Indian Affairs and Northern Development Robert Nault would later say, was "not the preferred option" for advancing treaty negotiations.

Given the legendary stubbornness of both Campbell and Chretien, it is perhaps not surprising that the two branches of the Liberal family ended the visit without an agreement or a group hug. Apart from federal wishes, however, some of the strongest pressure to neuter the BC Liberal's pet project came from those holding receipts for campaign contributions. When Plant told the legislative assembly in August that he would appoint a committee to draft questions, Endangered Opposition member Jenny Kwan asked repeatedly whether the correspondence he'd received from the business community had supported a referendum. Plant dodged the questions with his usual verbal elegance, finally telling her to "ask them yourself." It's rare enough that anyone responding to Kwan sounds sulky in comparison, but when an Attorney-General manages it there is strong evidence of a Cabinet that's been Spoken To by its sponsors.

Had the Business Community made known its anxiety at the prospect of irritated aboriginal bands locking up the province's resources for the duration of the BC Liberal's New Era? By the end of August Plant was no longer talking about a referral for his Nisga'a challenge, having had the belated epiphany "Now that we're in government, it's not possible to sue ourselves." Curses! Just when we had ourselves on the ropes! It was time, said the A-G, to recognize that the former government had made commitments to the Nisga'a, and to support those commitments.

But the premise of Campbell, Plant, and de Jongs' appeal had been that some of these commitments were unconstitutional and therefore invalid. Plant's new stance was susceptible of three interpretations:

(1) The province's top lawyer was advising his Cabinet colleagues to observe settlement legislation which he still believed to be partly unconstitutional.

(2) Sometime after the BC Liberals won the election, the spirit Raven appeared to Mr. Plant in a dream and convinced him that the Nisga'a Treaty and its enacting legislation were entirely constitutional.

(3) The appeal of Williamson's decision had as much merit as former premier Clark's election- year budget, and as honourable a motive.

Let us set aside, for the sake of argument, the possibilities of (1) dereliction or (3) malfeasance on the part of the A-G. We then conclude (2) that as of September 2001, Mr. Plant no longer believes that the treaty creates a new and unconstitutional order of government and violates the rights of non-Nisga'a living in the affected territory. He does, however, still have a committee set to roam the province, and needs something more than a disrobed "new order of government" scarecrow to justify the expense. So began the government's slow rhetorical drift around the referendum's purpose, with less emphasis on Protecting the Rights of All British Columbians and more talk of Revitalizing the Treaty Process with a tonic of direct democracy.

In an April 6, 2002 update of his earlier Post thesis, Gordon Gibson opens with what has become the official party response to charges that the referendum is a waste of money. "After almost 10 years of hard work and the expenditure of about half a billion dollars on negotiations, the number of treaties concluded under [the BC Treaty ] process is ... zero. (The Nisga'a Treaty was reached by a much older process.) Something needs fixing." Now here is the sort of diagnostic flair that makes an automobile business profitable. Do we not accept that a car's slow speed and excessive fuel consumption are good reasons to repaint it? Or to add a drag chute?

Like the A-G in recent days, Gibson doesn't tarry to explain why negotiations would cost less or move more quickly after a vote. All the Premier's Men appear too busy weaving a safety net, in case the cherished "characteristics of local government" idea falls short of a majority. A negative vote, Mr. Plant told reporters on April 2, is not binding on government in any way. Gibson, who had earlier extolled the referendum's ability to "confer democratic legitimacy on the process", is now of the opinion that "since local-type status was a firm election policy of the Libs anyway, this question was really unnecessary". And by this reasoning, the seven remaining banalities on the ballot were necessary?

We return briefly to interpretation (3) of the BC Liberals' newfound equanimity toward the Nisga'a Treaty. After Campbell, Plant, and de Jong finally withdrew their appeal, Justice Williamson ordered them to pay the Nisga'a's court costs . Rejecting the plaintiffs' assertions that they'd filed the suit as Opposition members with no conceivable interest beyond that of the public good, the judge noted that "they might have obtained a political benefit". He let it go at that, so let me extrapolate using the A-G's own phrasebook. While the three may have had a limited public interest in mind when they first took their challenge to court, their pre-election appeal and post-election acceptance of Williamson's decision "have the characteristics of" a political stunt.

As did the referendum promise, a hollow block with just enough salt on the outside to tempt Elizabeth Nickson's flock to wander over for a lick at election time. No doubt these Indian Sympathizers are sincere in their belief that the aborigines can be integrated into British Columbia through rigorous adherence to the principles of Scouting. But none offered a convincing argument that the government is well placed to set preconditions, even those approved by direct vote. To say to the province's First Nations "Indian government will be delegated - take it or leave it" would be to gamble that they are the parties most desperate for an out-of-court settlement. As Kwan's questions in the legislature indicated, not all of Campbell's backers considered this a sure bet.

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