Plant tries for wriggle room in referendum

Vaughn Palmer

Vancouver Sun Wednesday, March 13, 2002

VICTORIA - As the legislature wrapped up business Monday evening, Attorney-General Geoff Plant quietly tabled a stripped-down list of questions for the proposed referendum on native land claims.

The Plant questions -- eight versus the 16 proposed by a legislature committee late last year -- were included in a motion calling for the government to go ahead with the referendum this spring.

The referendum would, in turn, be used to guide provincial negotiators in settling native land claims. The attorney-general, whose ministerial responsibilities include treaty negotiations, emphasized again Tuesday that the referendum will not and cannot have any impact on the native rights or legal prerogatives.

Mr. Plant was scheduled to provide a detailed rationale for his revised approach in opening debate on the referendum motion today.

But I gather he edited the list of questions in light of political as well as legal considerations.

"I certainly respect the work of the committee," Mr. Plant told reporters. "They did a great job."

Nonetheless, he also commissioned a legal analysis of the committee recommendations, which resulted in this week's revamped list of questions. "Our objective as government will be to minimize the risk of any litigation," he explained.

Though Mr. Plant did not elaborate, he could be referring to his decision to abandon the committee's proposed preamble for the referendum.

It consisted of a lengthy list of "whereases," discussing aboriginal rights and title, the Constitution and the Charter of Rights, and the powers and responsibilities of the federal government -- all matters that cannot be dealt with by provincial referendum, as the Liberals themselves concede.

In paring the questions, Mr. Plant dumped three that merely repeated guarantees of consultation and transparency already in place under the New Democratic Party government.

He also scrapped one question that had brought objections from B.C.'s partner at the negotiating table, the federal government.

The committee proposed that the public be asked to give a "yes or no" answer to the following proposition: "Affordability should be a key factor in determining the amount of land provided in treaty settlements."

Ottawa objected on grounds that "affordability" could unfairly limit negotiations, plus the concept was undefined. Mr. Plant dropped it from the list, though he said the concept would still guide the Liberals.

Other changes incorporated nuances that could provide the province with a little more leeway in negotiations.

The committee proposed: "Continued access to hunting, fishing and recreational opportunities will be guaranteed for all British Columbians, yes or no?" Mr. Plant changed the emphatic "will" to a more flexible "should." He then added a provisio that the guarantee of access would apply only to "Crown land," thereby excluding land transferred to natives to settle their claims.

The committee framed its question on aboriginal government in a way that invited people to limit it to municipal status.

The A-G created a bit of wriggle room. "Aboriginal government should" -- there's that word again -- "have the characteristics of local government, with powers delegated from Canada and B.C." Meaning, perhaps, that senior governments could choose to delegate greater powers.

In short, these changes are in keeping with Mr. Plant's effort, since the election, to moderate the Liberals' position on native claims.

Without detracting from the seriousness of his effort, he could have done more with a recommendation to scrap the referendum outright.

Some Liberals discussed the possibility, thinking it might give them some advantage in dealing with natives, the courts, the media and the federal government.

In the end, though, they concluded that the credit would be grudging (the natives and the media) to non-existent (the courts and the federal government.) And they believed they would have trouble explaining the broken promise to the public, a sizable portion of which still supports the referendum.

So they are pressing ahead, not denying the risks.

They face a tough selling job with the elites, particularly the legal establishment. The natives have raised the possibility of protests and boycotts. Plus the thing could still backfire politically.

Mr. Plant forecast a high level of interest in the coming mail-in ballot. But he pointedly refused to say what level of response would be necessary to avoid the referendum becoming an embarrassment for the Liberals.

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