Whatever the referendum is, it's not an exercise in democracy, say civil libertarians

by John Dixon

OPINION: Vancouver Sun , April 24, 2002

How can a referendum be undemocratic? Rousseau -- arguably the greatest of all democratic theorists -- held up the model of self-governing peasants "gathered under an oak" as the ideal of direct democracy. And what could come closer to that in a modern society than to dispense with all the buffers of representation and refer a question of governance directly to the sovereign people?

Nothing, maybe, just in case those who refer to the citizenry do so honestly and responsibly. Because questions, like other utterances, can serve to misinform and mislead; and when a referendum is crafted so as to misinform and mislead, it cannot be dignified as an exercise in direct democracy.

The referendum on the principles guiding aboriginal treaty negotiations by the B.C. government is a case in point. Anyone tempted to take it seriously would do well to visit the Web site of the B.C. Referendum Office at www.treatyreferendum.ca. This is the one place where the government tries to document its view of the questions and the meaning of a vote.

This week it says that: A yes vote means that the government will be bound to adopt the principle in treaty negotiations.

A no vote means the government will not be bound to adopt the principle to guide its participation in treaty negotiations.

Last week it said something different, and next week who knows, but consider what the government is now admitting. The force of a majority "no" vote on any one of the eight questions means that the government "will not be bound to adopt the principle" voted against "to guide" its negotiations.

What the weasel "guide" word tells us is that: a) we are not being asked to vote on principles that will actually govern the negotiations of the government, so this is not a referendum but an opinion poll; and, b) it isn't even a fair poll, because a "no' vote doesn't commit the government to be guided by a rejection of the principle voted against, but only that the government won't feel bound to adopt it. Which implies that the government reserves the right to adopt it if it feels like it.

So "yes" means "yes," sort of, and "no" definitely means "maybe."

It gets worse. Since it is obvious that the only practical response to a referendum must be a simple "yes" or "no" answer to a question or questions, there is a huge problem applying a referendum approach to issues of principle instead of a simple policy proposal, such as "shall we build the bridge?"

Principles tend to relate to one another in complex ways -- when they are not actually conflicting with one another -- and intelligent answers to questions of principle have a way of starting with qualifications like "it depends."

The governance of aboriginal affairs depends upon a body of principles embodied in the Constitution, as well as the line of Supreme Court of Canada decisions that runs from Sparrow in 1990 to Delgamuukw in 1997.

They include:

> The principle that aboriginal title is real -- it is collective title "to the land itself," including its resources.

> The principle that aboriginal title is limited -- it may be legitimately infringed for a broad variety of purposes, ranging from economic development of the Interior, or even "the settlement of foreign populations."

> The principle that aboriginal title does not displace government title, but -- like any other title -- is simply a burden on the underlying Crown title, which remains.

> The principle that aboriginal people are not free to exploit their land in ways that destroy its special aboriginal significance, and that if they wish to so exploit it they must surrender title to the federal government.

My immediate point in choosing these particular principles is that I suspect they may be news to many British Columbians, who have been told that the Supreme Court justices are a bunch of dewy-eyed nitwits who are intent on giving away the country.

My broader point, however, is that it makes no sense whatever to ask voters if they want the provincial government's negotiations to be either governed or guided by these principles. These principles are Canadian law -- and the B.C. government is utterly and completely powerless to dispense with them.

So when the citizenry are gravely asked to respond "yes" or "no" to referendum question 6 -- "Aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia" -- they are not being treated as "peasants under an oak" but as saps under a misapprehension.

Because if powers -- such as, say, education and the administration of justice -- are delegated from Canada to aboriginal peoples, the resulting governments will most definitely not be municipal. And we shouldn't be terrified of such innovation; it is already working rather well in both Sechelt and Nisga'a territory.

The B.C. Civil Liberties Association urges British Columbians to decline to participate in the referendum farce. Not because we are "for" Indians or "against" the government position in negotiations, but because this is an exercise in political cynicism, and deserves to be shunned.

John Dixon is president of the B.C. Civil Liberties Association.

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