The beauty of a referendum is that no matter how complex or inappropriate the question, the answer can only be Yes or No. Except, apparently, in British Columbia, where Up Yours is also gaining a measure of popularity.
Gordon Campbell's cash-strapped Liberal government is spending at least $9 million, distributing 2.2 million mail-in ballots to the electorate, to seek public opinion on the "principles" best able to resolve the interminable issue of aboriginal treaties. His desire to "reinvigorate" the claims process isn't without justification. About $400 million has been spent in the past decade in three-way negotiations among First Nations and the federal and provincial governments without one final agreement under the B.C. Treaty Commission process.
B.C.'s only modern treaty, for the Nisga'a of the Nass Valley, was ratified in 1999, but negotiations began before the treaty commission was established. The Nisga'a deal was challenged by Campbell, as opposition leader, but the court rejected his claim that a constitutional right to Aboriginal self-government does not exist. Campbell is now using the referendum to revisit the issue. He calls the vote "a precedent-setting exercise in democratic reform and accountability." But the precedent of a majority vote on minority rights is a dangerous one, say his critics, who include both aboriginal and federal negotiating partners.
The ballot envelopes, sporting the unbleached brown cheer of a Canada Customs and Revenue Agency tax notice, began arriving in mailboxes in early April. The eight questions are to be answered, sealed into a "Secrecy Envelope" and mailed to Elections B.C. headquarters in Victoria by 4:30 p.m. on May 15. It's safe to say they've inspired a lively debate - it's just not the debate the provincial government had hoped for.
Aboriginal leaders say the exercise is inflaming relations, without illuminating the path to a resolution. Nor has it inspired a serious examination of the complex reasons, including a century-long provincial refusal to negotiate treaties, that stymied progress. Instead, the government seeks a Yes vote to eight principles, which will be binding under provincial law. They include a ban on expropriating land for treaty purposes and the removal of aboriginal tax exemptions. People voting Yes have a proposition to support, but what does a No vote mean? The question "Parks and protected areas should be maintained for the use and benefit of all British Columbians" would seem to merit an obvious Yes. But if Yes means binding the province from ceding any parkland in any treaty settlement, some might wish to vote No without declaring open season on the entire parks system.
Regrettably, the only fresh thinking the exercise has generated is a kind of Refer Madness: how best to spoil the ballot? A simple boycott or a No vote is such a poor outlet for dissent that about the only imaginative debate focuses on the relative merits of bending, folding, spindling or otherwise mutilating.
Burning is also an option. The Union of B.C. Indian Chiefs staged a ballot blaze in early April. It made for an effective photo opportunity, but the idea has since fallen from favour. Tossing the ballot into a recycling bin is an alternative raised by influential Vancouver Sun columnist Vaughn Palmer: "Think of it as striking a blow in favour of the environment." The approach of churches varies, presumably along theological lines. The United Church's B.C. Conference advises adherents to write "void" across their ballots, and have them forwarded to the First Nations Summit, a vocal aboriginal opponent of the vote. But spoiled ballots aren't counted. The Anglicans prefer voting "No" to all questions, fearing a boycott implies apathy. "We believe stupid questions deserve stupid answers," said spokesman Douglas Hambidge, a retired archbishop.
The Pacific Region of the Canadian Jewish Congress advocates either a No or a non-vote, warning the referendum "could provide an avenue for divisiveness and even expressions of racism and hatred." Artful dissent is the aim of STUPID Referendum (The Society To Understand and Promote Innovative Defiance of the Referendum). It's awarding $500 for the most artistic transformation of a ballot into a painting, sculpture or piece of origami.
The vote is no laughing matter to Thomas Berger, a former judge and a Vancouver lawyer who represented the Nisga'a in two landmark rights cases. He accused the Liberals of putting "minority rights up for auction" and of undermining aboriginal self-government rights already established by the courts. "It is essential to avoid conferring the slightest legitimacy on this abuse of the referendum process," he wrote in the Vancouver Sun. Veteran pollster Angus Reid wrote a similarly sulphurous critique within days of receiving his ballot, calling the referendum "one of the most amateurish, one-sided attempts to gauge the public will that I have seen in my professional career."
Campbell has dismissed such criticism as the grumbling of "elites" who don't trust the public's ability to grasp difficult issues. "In fact, the principles address basic issues important to all of us," he wrote recently in the National Post. "Issues involving land use, resources, taxation and how we are governed; and issues on which all British Columbians deserve to have their views heard." Many obviously agree. The Vancouver-based Fraser Institute and the B.C. branch of the Canadian Taxpayers Federation, both critical of the expense and glacial progress of land claims, back the public consultation. As of week's end, voters had returned 628,000 ballots, suggesting a substantial concern about the economic and social impact of unresolved treaties.
The vote is also rousing uglier motives. The Liberals, to their horror, have won the affection of a shadowy rump known as B.C. White Pride. The referendum, crows the group's Web site, "will go down in Canadian history as enabling the most fundamental symbolic expression of White unity since racial pride went out of style almost 40 years ago."
There's little doubt the Liberals will get the Yes vote they want. A poll conducted in early April by Ipsos-Reid - as company founder Angus Reid was drafting his critical analysis - found two-thirds of likely voters will say Yes to the ballot questions. Paradoxically, 52 per cent said the referendum will have a negative impact on treaty negotiations, and 60 per cent called the vote a waste of money.
The mixed signals are, in part, why the Liberals hunger for a clear mandate. But if Campbell is "seeking and honouring the will of the people," why the zeal for a Yes vote? A referendum, critics say, is too blunt an instrument for consultation, especially when there are legitimate concerns about the content of the questions.
Some are confusing and even misleading: "Private property should not be expropriated for treaty settlements." Think quickly, do you answer Yes or No if you oppose expropriation? You'd also be forgiven for thinking from the question that aboriginal negotiators are attempting to seize private property in their treaty claims. They're not.
Other questions are beyond the Liberals' ability to do much about: "Aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia." As Berger notes, both the courts and the federal government already recognize a more substantial "inherent right to self-government." Another question - "The existing tax exemptions for aboriginal people should be phased out" - ignores the fact that taxation is a federal responsibility.
Still, flaws and all, the referendum ties Liberal fortunes to ending a treaty impasse and historic injustice. Finding a resolution in any conceivable set of principles this vote may deliver will first require a prodigious amount of healing among all parties to the negotiations. The answers cost $9 million, but asking the questions cost an incalculable amount of goodwill.
The Questions for B.C.
1. Do you agree that the Provincial Government should adopt the principle that private property should not be expropriated for treaty settlements?
2. Do you agree that the Provincial Government should adopt the principle that the terms and conditions of leases and licences should be respected; and fair compensation for unavoidable disruption of commercial interests should be ensured?
3. Do you agree that the Provincial Government should adopt the principle that hunting, fishing and recreational opportunities on Crown land should be ensured for all British Columbians?
4. Do you agree that the Provincial Government should adopt the principle that parks and protected areas should be maintained for the use and benefit of all British Columbians?
5. Do you agree that the Provincial Government should adopt the principle that province-wide standards of resource management and environmental protection should continue to apply?
6. Do you agree that the Provincial Government should adopt the principle that aboriginal self-government should have the characteristics of local government, with powers delegated from Canada and British Columbia?
7. Do you agree that the Provincial Government should adopt the principle that treaties should include mechanisms for harmonizing land use planning between aboriginal governments and neighbouring local governments?
8. Do you agree that the Provincial Government should adopt the principle that the existing tax exemptions for aboriginal people should be phased out?
Maclean's May 13, 2002