Indigenous Law Bulletin
by Helena Kajlich
With populist, polarised and racial politics often compared with Queensland and Western Australia, Canada’s Pacific province of British Columbia (‘BC’) has forced a showdown with Indigenous First Nations and federal Indigenous policy. BC’s short white settlement era since 1843 has provoked a disproportionate amount of Canada’s ‘Indian–white’ legal disputes and precedent, as Paul Tennant movingly recounts in Aboriginal peoples and politics: the Indian land question in British Columbia, 1849-1989.
Unlike in other regions of Canada, there have been few treaties signed between the Crown and Aboriginal peoples in BC. Only in the past dozen years had provincial governments stopped resisting and begun trying to resolve these fundamental conflicts under pressure from Supreme Court decisions, national policy, and the awakening of public opinion to the ongoing injustices experienced by BC’s Aboriginal peoples.
This has manifested itself in the BC treaty process (‘treaty process’) that commenced in 1990.
British Columbians were recently asked by Premier Gordon Campbell to answer eight questions that will establish the framework for the provincial government’s negotiations with First Nations as part of the existing treaty process. These eight questions deal with a broad range of issues such as self-government, taxation and land management. Premier Campbell argued that the referendum would enable citizens to have direct input into the treaty process ensuring it is transparent and inclusive. The votes were cast by mail-in ballot and were to be returned by May 15, 2002. Elections BC will report the final count and results of the referendum to the Speaker of the BC Legislative Assembly by July 3, 2002.
Aboriginal organisations representing the 140, 000 Aboriginal peoples throughout the province (about 3.8 percent of the total BC population) launched an active boycott against the referendum. They argued that it was a malicious attempt by the Liberal government to derail the treaty process in BC and undermine Aboriginal peoples’ constitutionally guaranteed rights. The active boycott has been supported by non-Aboriginal organisations such as the BC Federation of Labour, BC Teachers’ Federation and the United and Anglican churches.
The seemingly innocuously phrased questions and any mandate pursued as a result of the referendum may be inconsistent with a democratic foundation, the rule of law. There are three distinct issues here. First, the vote undermines Aboriginal rights guaranteed in the Canadian Constitution. I will consider this in relation to the questions dealing with self-government and Aboriginal title. Second, it is inconsistent with the fiduciary duty the Supreme Court of Canada has held to exist between the Crown and Aboriginal peoples. Finally, it assumes the provincial government can negotiate issues that are within the exclusive jurisdiction of the federal government.
Section 35(1) of the Constitution Act 1982 states that the ‘existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognised and affirmed’. As the Canadian judicial system struggles to define these rights, the Supreme Court of Canada in R v Sparrow found that a process of negotiation between government and Aboriginal peoples should be initiated to reconcile Aboriginal peoples’ rights with other interests.
Following this Supreme Court decision and after decades of direct action taken by Aboriginal peoples to stop the government granting interests in lands subject to Aboriginal claims, the treaty process was initiated in 1990. Although only the federal government has authority to enter into treaties with Aboriginal peoples, it was agreed that the process would be a tripartite arrangement between the federal, provincial and First Nations governments.
The mandate the Liberal government is attempting to create through the referendum neither protects nor affirms the constitutional status of Aboriginal rights. Question 6 asks whether: ‘Aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia?’ Aboriginal self-government in this question is defined as a delegated form of self-governance, that is, its authority is derived from both the federal and provincial governments. However, self-government is a pre-existing and continuing right of Aboriginal peoples with its authority originating outside both the federal and provincial governments. It is an inherent right and has been interpreted by the courts to be affirmed by s 35(1) Constitution Act 1982.
Premier Campbell, when leader of the Opposition, challenged the legality of the Nisga’a Treaty on this point. In July 2000, the Supreme Court of British Columbia rejected his view finding that Aboriginal self-government is an inherent right protected in the Canadian Constitution and it could be negotiated in the BC treaty process. In a humiliating defeat, Campbell was ordered to pay the Nisga’a Nations’ legal costs. He now appears to be asking the public the very question already answered by the courts.
In 1996 the Royal Commission on Aboriginal peoples stated that Aboriginal peoples’ right of self-determination includes the right to self-govern.  This right will be exercised differently among different Aboriginal nations to meet their situations, needs and aspirations. Negotiations surrounding self-government require creative and flexible approaches to ensure that whatever model is adopted best suits the needs of First Nations. This may, in some situations, resemble local government structures. However, it is beyond the scope of the provincial government to impose this as a requirement of the treaty process. Self-government is an inherent right of First Nations and the right to self-government includes defining the structures of governance.
Section 35(1) of the Canadian Constitution has been interpreted by the Supreme Court of Canada to include recognising and affirming Aboriginal title. A question posed in the referendum asks that existing leases and licences granted by the provincial government be respected in treaty negotiations and if these agreements cannot be reasonably honoured, fair compensation must be paid.
Throughout the province’s white history the government has been granting leases and licences over Aboriginal title land, even though it does not have power to extinguish Aboriginal title. Therefore, any leases or licences granted that did not involve consultation with Aboriginal peoples are uncertain in their scope and legal effect. A requirement that all existing leases and licenses ‘be respected in treaty negotiations’ appears to uphold existing leases and licences above the constitutional rights of Aboriginal peoples. As the provincial government is bound by the Constitution to uphold Aboriginal title, processes of negotiation should attempt to accommodate other interests, not mandate that Aboriginal title be subservient to them.
Further, the provincial government will not negotiate compensation for Aboriginal lands wrongfully interfered with in the existing treaty process, despite the Supreme Court affirming that fair compensation should be paid when Aboriginal rights have been infringed.  In seeking a mandate to promote the rights of commercial interests to receive fair compensation, this referendum continues to prioritise non-Aboriginal interests and ignores the injustice of failing to negotiate compensation for lands wrongfully taken from Aboriginal peoples.
The second way this referendum undermines the rule of law is that it is inconsistent with the fiduciary duty the Supreme Court has held the Crown to be under in their dealings with Aboriginal peoples. The fiduciary relationship is a relationship where Aboriginal peoples (the beneficiaries) place trust and confidence in the Crown (the fiduciaries) and are justified in expecting them to act in their best interests. Two important cases affirm this unique relationship between the Crown and Aboriginal peoples. First, Guerin v R in which the Crown was held accountable for failing to act in the best interests of a First Nation in dealings over Aboriginal title. Second, R v Sparrow in which the Crown had to exercise its legislative authority to avoid infringing Aboriginal rights.
The Canadian courts have maintained that this fiduciary relationship should not be adversarial. Subsequently, the Supreme Court of Canada has reinforced the obligations of the Crown to act in the best interests of Aboriginal peoples in reconciling Aboriginal peoples’ interests with those of the Crown and protecting Aboriginal peoples’ rights through processes of negotiation. The Supreme Court in Gitanyow First Nation v. Canada heightened these obligations, finding that the Crown must negotiate with Aboriginal peoples ‘in good faith’.
The referendum process is inconsistent with the provincial governments’ fiduciary duty. Bound to act in the best interests of Aboriginal peoples and negotiate with Aboriginal peoples and protect their rights, the provincial government has in this referendum asked the majority to define the scope of negotiations and limit Aboriginal peoples’ constitutionally guaranteed rights. These are rights that transcend populist feelings. They have been constitutionally guaranteed for this reason. The recognition of these rights in the Constitution attempts to redress the past and ongoing injustices Aboriginal peoples experience. It is the responsibility of the Crown to listen to Aboriginal peoples and their different histories and reach agreements that are genuine attempts at reconciliation.
Furthermore, there has been very little information circulated by the government to inform the public of the context and meaning of the questions. It is not appropriate in a process of negotiation to formulate a mandate based on peoples’ fears and misconceptions of how Aboriginal rights will be implemented.
The treaty process requires creative approaches to find mutually acceptable outcomes. Patrick Macklem has observed that referendums ‘over-simplify complex questions of public policy and foreclose the possibility of compromise or consensus’. The provincial government is under a duty to negotiate with Aboriginal peoples on issues that are complex, not pre-determine the outcome of these negotiations.
The provincial government is seeking a mandate to phase out the tax exemption of Aboriginal peoples and if they succeed, they would have moved beyond what can be mandated by the provincial government in treaty negotiations. Section 91(24) of the Constitution Act 1867 invests the federal government with sole jurisdiction to legislate with respect to ‘Indians, and Lands reserved for the Indians’. This section, together with the provisions of the Indian Act 1985, establishes that some personal property and employment income are not taxable. Currently Aboriginal peoples are exempt from the payment of tax for salaries earned on reserves and products or services purchased on reserves.
The referendum misleads the public by wrongly assuming that the province has jurisdiction over the tax exemption of Aboriginal peoples. Though the Nisga’a Nation agreed in their treaty to phase out their tax exemption, this is not a provision the provincial government can impose in the negotiation of treaties.
This referendum will not provide the government with the mandate they have so persistently pursued. Legal battles will continue to be brought against the provincial Crown costing all parties financially and breaking down the relations that have been slowly built through the treaty process. As Miles Richardson, Chief Commissioner of the British Columbia Treaty Commission observed, this referendum will cause ‘irreparable damage to the negotiation process’ and has further ‘ramifications for the honour of the Crown’. The honour of the Crown has been shaken by the populist politics initiated by the Campbell Government. These politics threaten to undermine Aboriginal peoples’ rights and their unique relationship with the Crown. These rights were affirmed in the Constitution because they are not dependent on a majority deciding whether they exist. They are inherent rights. If the Campbell Government is committed to public consultation and transparency, it must acknowledge the widespread outrage at the referendum. Further, the provincial government must fulfil its moral and legal duty to uphold the rule of law by acknowledging that the referendum undermines Aboriginal peoples’ rights, the Crown’s fiduciary duty and the special relationship between the federal government and Aboriginal peoples.
Helena Kajlich completed her BA (Hons) at the University of Queensland. She is involved in graduate research at the University of British Columbia, studying Aboriginal politics and policy.
Whereas the Government of British Columbia is committed to negotiating workable, affordable treaty settlements that will provide certainty, finality and equality; do you agree that the Provincial Government should adopt the following principles to guide its participation in treaty negotiations?
1. Private property should not be expropriated for treaty settlements.
2. The terms and conditions of leases and licences should be respected; fair compensation for unavoidable disruption of commercial interests should be ensured.
3. Hunting, fishing and recreational opportunities on Crown land should be ensured for all British Columbians.
4. Parks and protected areas should be maintained for the use and benefit of all British Columbians.
5. Province-wide standards of resource management and environmental protection should continue to apply.
6. Aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia.
7. Treaties should include mechanisms for harmonizing land use planning between Aboriginal governments and neighbouring local governments.
8. The existing tax exemptions for Aboriginal people should be phased out.
 The author would like to thank Peter Jull who has been an inspired teacher and friend. He has encouraged researching the processes of reconciliation outside of the Australian context, broadening my understanding of what is possible in Australia. I would also like to thank him for reading drafts of this article and taking the time to give thoughtful advice.
 Paul Tennant, Aboriginal peoples and politics: The Indian land question in British Columbia, 1849-1989 (1990).
 These questions are included as an appendix.
 The BC Ministry of Attorney General Treaty Negotiations Office website has useful government information at: www.gov.bc.ca/tno/. For discussion papers by Aboriginal peoples and links to Aboriginal organisations and their supporters visit the Referendum Action Network website at: www.treatyinjustice.org.
 Treaty Negotiations Office, Government Honours Referendum Commitment, Press Release, 16 May 2002, <www.gov.bc.ca/tno/news/2002/government_honours_referendum_commitment.htm>.
 Elections BC reported that as of May 15, the closing date for the referendum, only 724,000 referendum ballots had been returned representing about a third of eligible voters in BC.
 Union of British Columbia Indian Chiefs, Referendum questions seek mandate to perpetuate same outdated colonial relationship, 13 March 2002, <www.unbcic.bc.ca/docs/UBCICPress_referendum_031302.pdf.>.
  1 SCR 1075.
 Campbell v AG BC (2000) BCSC 1123, 1127.
 Thomas Berger, a lawyer for the Nisga’a Nation, argues this in his article that outlines the details of the Campbell decision and the BC referendum. He has rejected the referendum as an illegitimate process, undermining the rule of law and urged people not to participate. See: Thomas Berger, ‘Why I won’t be voting’ Vancouver Sun, 15 April 2002.
 Royal Commission on Aboriginal Peoples, Restructuring The Relationship, 2(1) (1996) 175-176.
 Delgamuukw v British Columbia  1 CNLR 65.
 Constitution Act 1867 ss 109, 91(24).
 Louise Mandell, ‘Recommended Legal Ballot: A Legal Analysis’ (Unpublished paper, Mandell Pinner Barristers & Solicitors, 2001) 19.
 British Columbia Treaty Commission, Looking Back, Looking Forward: A Review of the BC Treaty Process (2001) 8.
 Supra note 13 at 80.
  2 SCR 335.
 R v Sparrow  1 SCR 1075.
  4 CNLR 47.
 Patrick Macklem, ‘The Probable Impact and Legal Effect of the Proposed Treaty Referendum’ (2001) 59 The Advocate 895.
 See question 8 in the appendix.
 See http://www.legis.gov.bc.ca/CMT/37thparl/2nd-session/aaf/hansard/a11018a.htm.