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April 7 2002--The First Nations Treaty Negotiations Alliance (FNTNA), which represents more than 40 First Nations negotiating treaties with BC and Canada, has launched a court challenge against the BC Liberal Government’s referendum on treaty negotiations.

"While we fully support public input, our legal action asserts that it is fundamentally wrong and in breach of the Canadian Constitution to put the rights and interests of First Nations in current and future treaty negotiations to a vote of the majority of British Columbians," said Robert Morales, Chief Negotiator of the Hul’qumi’num Treaty Group and spokesperson for the FNTNA.

The court action challenges the referendum on the basis that it is discriminatory according to Section 15 (equality rights) in the Charter of Rights & Freedoms and Section 35 (aboriginal rights) in the Constitution. Furthermore, the lawsuit contends the provincial government has exceeded its jurisdiction by conducting a referendum on certain aboriginal rights such as self-government.

First Nations are asking the BC Supreme Court to uphold the principle that the Crown is obliged to act honourably while conducting treaty negotiations in good faith and to act reasonably in light of the historic wrongs inflicted upon First Nations, whose aboriginal rights and title, though affirmed by the courts, have been consistently denied.

"We will also demonstrate to the court the inherent unfairness of the referendum. The people of BC have not been well informed, and in some cases have been misinformed by the government about the rights and history of First Nations," Morales said. "Furthermore, the referendum process provides no control over how organizations and individuals with significant financial resources can influence the outcome through media and paid advertising.

Instead of engaging in meaningful treaty negotiations with First Nations to resolve the issues that have stalled the treaty process, Morales said Gordon Campbell and his government are trying to derail the process through referendum questions crafted to generate responses that support pre-existing government positions on treaty issues.

"The treaty process involves three equal participants, the Governments of BC and Canada and First Nations. Without any consultation or input from the other participants, the Liberal government through its referendum, is now trying to change the rules that were in place when First Nations made the decision to borrow millions of dollars to participate in treaty making."

Morales said the Liberals should be concerned that our province is losing countless investment dollars because of the current uncertainty over ownership and rights to specific land and resources. "Unlike most Canadian provinces, which have already settled treaties, it appears the BC government would prefer to spend millions of dollars on future court cases to decide who has jurisdiction over land and resources in BC."

The FNTNA, which represents many First Nations on Vancouver Island, the Lower Mainland and in the Interior, has invited all BC First Nations to join forces in this court challenge. Individual aboriginal people are also participating.

Robert Morales: 250-245-4660; 250-246-0949 OR htg-rmorales@shaw.ca .

The First Nations Treaty Negotiation Alliance (FNTNA) was formed in 1998 and represents more than 40 First Nations in the Lower Mainland, on Vancouver Island and in the Interior. It is a voluntary, grass roots, non-profit organization funded solely through contributions from its members.

The FNTNA legal action seeks a court order to halt the referendum before the balloting is completed and the ballots counted.

The court case is based on the following principles:

• It is fundamentally wrong and in breach of the Canadian Constitution to put the rights and interests of First Nations in current and future treaty negotiations to a vote of the majority of British Columbians.
• The referendum is discriminatory according to Section 15 of the Charter of Rights & Freedoms and Section 35 of the Canadian Constitution.
• The BC Government has exceeded its jurisdiction by conducting a referendum on constitutionally entrenched aboriginal rights such as self-government.
• The Crown has fiduciary duties to First Nations, must deal honourably with all First Nations and is obliged to conduct treaty negotiations in good faith and act reasonably in light of the historic wrongs done to First Nations.
• The referendum could cause immense damage to treaty negotiations and could even result in the collapse of the treaty process.
• The court will be made aware of the tremendous investment of time and money that First Nations have made in the existing treaty process and the reasonable expectation that First Nations have of being able to negotiate fair and reasonable treaties with the Crown in a just process.
• Each First Nation is different and the Crown needs to have flexible mandates to negotiate the self-government and land and resources needs of each nation based upon its own unique history, culture and location. Province-wide positions will not allow for the flexibility required to negotiate fair treaties.
• The court will be shown the practical unfairness of the referendum. The general population has not been well informed and in some cases has been misinformed by the government about the rights and history of First Nations.
• First Nations have had no input into the referendum questions, options or process and have had no meaningful opportunity to have a voice. There is also no control over how organizations or individuals with great financial resources can influence the outcome of the referendum through media and paid advertising.

The FNTNA court challenge is being brought in the names of prominent aboriginal leaders as well as ordinary citizens.

1. Wilson Bob is a member of the Nanoose First Nation and is an aboriginal person within the meaning of s. 35(1) of the Constitution Act, 1982 and an Indian within the meaning of both the Constitution Act, 1867 and the Indian Act, R.S.C. 1985, c. I-5.
2. Robert Sam is a member of the Songhees First Nation and is an aboriginal person within the meaning of s. 35(1) of the Constitution Act, 1982 and an Indian within the meaning of both the Constitution Act, 1867 and the Indian Act, R.S.C. 1985, c. I-5.
3. Roderick Naknakim is a member of the We Wai Kai First Nation and is an aboriginal person within the meaning of s. 35(1) of the Constitution Act, 1982 and an Indian within the meaning of both the Constitution Act, 1867 and the Indian Act, R.S.C. 1985 c. I-5.
4. Mavis Ericson is a member of the Nadleh Whut’en Band and is an aboriginal person within the meaning of s. 35(1) of the Constitution Act, 1982 and an Indian within the meaning of both the Constitution Act, 1867 and the Indian Act, R.S.C. 1985, c. I-5.
5. Lydia Hwitsum is a member of the Cowichan Tribes and is an aboriginal person within the meaning of s. 35(1) of the Constitution Act, 1982 and an Indian within the meaning of both the Constitution Act, 1967 and the Indian Act, R.S.C. 1985, c. I-5.
6. The Songhees First Nation, Nanoose First Nation, We Wai Kai First Nation, the Nadleh Whut’en Band and Cowichan Tribes are each First Nations who have been involved in treaty negotiations with Her Majesty the Queen in Right of British Columbia under the auspices of the British Columbia Treaty Process, as described below.
7. Her Majesty the Queen in Right of British Columbia (the "Provincial Crown") is that aspect of the Crown charged with the administration of the executive government of British Columbia.
8. The Attorney General and the Minister Responsible for Treaty Negotiations (the "Attorney General") is that Minister of the Crown responsible for the administration of matters on behalf of the Provincial Crown in British Columbia relating to the negotiation of treaties with the aboriginal people of British Columbia.
9. The Chief Electoral Officer of British Columbia is an officer of the Legislature charged under the Treaty Negotiations Referendum Act, Order-in-Council 219/2002 with various duties related to the conduct of the Referendum (as defined below), including conducting and overseeing the counting of the ballots cast in the Referendum.

The Treaty Negotiations Referendum

10. On March 15^th, 2002, the Provincial Crown, by and with the advice of the Executive Council of the Province of British Columbia passed Order-in-Council 219/2002 which made and gave effect to a regulation (the "Treaty Negotiations Referendum Regulation") under the Referendum Act, R.S.B.C. 1996, c. 400, s. 6. The Treaty Negotiations Referendum Regulation ordered the holding of a referendum (the "Referendum") for the purported purpose of soliciting the opinion of the electorate of British Columbia in respect of a set of principles to govern the Provincial Crown’s position in treaty negotiations with the aboriginal people of British Columbia. The Treaty Negotiations Referendum Regulation also established the procedure pursuant to which the Referendum would be conducted. The questions to be posed in the Referendum are attached to this Statement of Claim as Schedule "A".
11. The Referendum is to be conducted solely by means of a mail-in ballot. The Chief Electoral Officer has mailed the ballots. The close of voting occurs on May 15^th, 2002. The Referendum is not being held in conjunction with a general election under the Election Act, R.S.B.C., c. 106.
12. The Treaty Negotiations Referendum Regulation does not establish any financial limitations or rules governing the financing of campaign activities conducted in relation to the Referendum. The regulation also does not provide for any public financial support for the conduct of a campaign by aboriginal people in respect of the principles proposed in the Referendum.
13. The Provincial Crown has announced that it is its official position that the voters should vote "yes" to each of the questions posed in the Referendum.

The Duties of the Provincial Crown in Dealings with Aboriginal People

14. The Referendum questions each propose limitations on the rights which may be recognized or extended to aboriginal people in treaties to which the Provincial Crown is a party. These limitations will reduce the rights available to aboriginal people in treaties to which the Provincial Crown is party:

(i) to rights less extensive in scope than the rights which have previously been recognized or extended in earlier treaties with aboriginal people in Canada ;

(ii) to rights less extensive in scope than the rights which have previously been the subject of negotiations in the current and past treaty negotiations; and

(iii) to rights less extensive in scope than those which have been previously recognized by statute and common law.

15. The common law recognizes that the aboriginal peoples of Canada in general, and of British Columbia specifically, are in a special constitutional and legal position arising out of the unique historical situation of aboriginal peoples, including the historical facts:

(i) that they were living in British Columbia prior to contact with Europeans in accordance with the customs, practices and traditions comprising their distinct culture;

(ii) that the aboriginal cultures were and continue to be distinct from non-aboriginal cultures in relation to a wide range of matters;

(iii) that the interests of settlers, colonial governments and their successor provincial governments were and are in conflict in many cases with the interests of the aboriginal peoples; and

(iv) that the maintenance of peace, order and good government and the protection of aboriginal peoples as a minority required that the Crown in all of its aspects act to protect the interests of the aboriginal peoples.

16. The common law therefore holds the Crown in all of its aspects (including in right of the Province of British Columbia) to a very high standard of conduct, consistent with that of a fiduciary, in its dealings with aboriginal peoples regarding their rights, interests and cultures as aboriginal peoples. The high standard of conduct includes, in part:

(i) the obligation to uphold the honour of the Crown in all dealings with aboriginal people;

(ii) the obligation to act fairly and in good faith without oblique motive in dealing with aboriginal people;

(iii) the obligation to take account of and where possible accommodate the unique interests and rights of aboriginal peoples; and

(iv) the obligation to honour all lawful promises and commitments made by the Crown in any of its aspects to aboriginal people or peoples.

17. The common law also protects aboriginal people as a minority from the frauds and abuses that can be occasioned by the disadvantaged position of aboriginal people in comparison to the non-aboriginal settlers, the colonial governments and successor provincial governments. In particular, the common law recognizes that the Imperial Crown, and its successor the Crown in Right of Canada, has the sole Royal Prerogative to enter into treaties with aboriginal people whereby aboriginal people cede, surrender or in any way compromise, limit or adjust their aboriginal rights and title.
18. When British Columbia joined Canada in 1871, all legislative and executive power in relation to Indians and Lands reserved for the Indians in British Columbia vested in Parliament and Her Majesty the Queen in Right of Canada, pursuant to s. 91(24) and s. 146 of the Constitution Act, 1867 and Article 13 of The Terms of Union of British Columbia and Canada. Furthermore, the common law governing the relationship between the Crown and the aboriginal peoples of British Columbia, including the common law governing the Royal Prerogative to enter into treaties with aboriginal people continued as federal common law.
19. The Royal Prerogative to enter into negotiations and enter into treaties with aboriginal peoples imposes the obligation on the Crown, in any of its aspects, to the extent that it participates in such negotiations or treaties to act so as to maintain the honour of the Crown and to negotiate in good faith.
20. In 1982, upon the coming into effect of s. 35 of the Constitution Act, 1982, the aboriginal and treaty rights of the aboriginal people of Canada, as well as any treaty rights that may come into effect after the coming into effect of that section, were extended constitutional protection.

Section 35 Rights Arising out of the Duties of the Crown toward Aboriginal Peoples

21. The aboriginal rights of the aboriginal peoples of Canada include (in addition to their rights to carry out certain activities and to hold the lands they occupied at the time of Sovereignty), the right to have the Crown in all of its aspects, including the Provincial Crown, act in accordance with the duties that have been imposed upon the Crown by common law in relation to its dealings with aboriginal peoples as set out above. Any failure by the Provincial Crown to act in accordance with these duties shall constitute a breach of s. 35(1) of the Constitution Act, 1982. Therefore any act of the Provincial Crown connected to or arising out of such a failure is of no force and effect pursuant to s. 52 of the Constitution Act, 1982, unless the Provincial Crown can justify such a failure.

Aboriginal People, the Referendum and Section 15 of the Charter of Rights and Freedoms

22. As will be particularized in detail below, the Treaty Negotiations Referendum Regulation and the Referendum itself, violate s. 15 of the Charter of Rights and Freedoms in that each discriminates, on the basis of race and ethnic origin, against the aboriginal people of British Columbia by denying them the equal protection and benefit of the law, in that:

(a) since the assertion of British Sovereignty, the aboriginal people of British Columbia have been subjected to a history of discriminatory treatment in which their legal rights, culture and political institutions have been ignored, denigrated or undermined by various laws and policies of the governments of British Columbia and Canada;

(b) the imposition of various duties upon the Crown and the conduct of treaty negotiations within the context of those duties, is a part of rectifying these historical wrongs and recognizing and affirming the special rights and status of the aboriginal peoples of British Columbia;

(c) the Treaty Negotiations Referendum Regulation and the Referendum have a differential effect upon the aboriginal people of British Columbia by limiting, both legally and politically, the effective scope of treaty negotiations and the nature of treaty rights available in treaties involving the Provincial Crown and by undermining treaty negotiations as a means of ameliorating the historic discrimination suffered by aboriginal people;

(d) the Treaty Negotiations Referendum Regulation and the Referendum, will also have a differential effect on aboriginal people by reinforcing existing stereotypical views of aboriginal people and by polarizing public opinion concerning the position of aboriginal people and the means of resolving the historic discrimination to which they have been subject; and

(d) the Treaty Negotiations Referendum Regulation and the Referendum, both in the substance of the questions asked and in the process adopted for conducting the Referendum, demean the dignity of the aboriginal people of British Columbia by reinforcing the stereotypes underlying this historic discrimination and by taking advantage of, or failing to accommodate their disadvantaged economic and social position arising from this historic discrimination.

Historical Context of the Treatment of Aboriginal People in British Columbia

23. The historical context of the aboriginal peoples of British Columbia is one of long-standing racial and ethnic discrimination based upon stereotypical assumptions that aboriginal social, political and legal structures and rights are unworthy of protection and continued existence. The governments of British Columbia and Canada imposed laws and policies upon the aboriginal people of British Columbia that disregarded their aboriginal rights and title as well as their traditional aboriginal social and political structures. These laws and policies were designed to compel or encourage aboriginal people to abandon their traditional social and political structures and to assimilate into the larger non-aboriginal community. To the extent that there were laws which protected the rights and interests of the aboriginal peoples of British Columbia, these laws were not vigorously or routinely enforced. Conversely there were numerous laws which uniformly advanced the interests of non-aboriginal people and which in many cases, expressly denied aboriginal people access to the same rights and benefits held by non-aboriginal people.
24. In the years following the assertion of British Sovereignty over the lands now comprising British Columbia, there were early attempts made to enter into treaties with First Nations on Vancouver Island, where the British Crown entered into 14 treaties with First Nations. However, following the end of James Douglas’ tenure as Governor, the Colony and subsequently the Province, largely refused to entertain the claims of aboriginal people to their aboriginal rights or title and refused to enter into treaty negotiations with aboriginal peoples. A succession of Provincial governments actively opposed any effort on the part of the Government of Canada to engage in such negotiations with aboriginal peoples until late in the twentieth century, except in regard to those lands now subject to Treaty 8.
25. The Provincial Crown consistently refused to entertain any claim on the part of the aboriginal people of British Columbia to any entitlement to land outside of such small reserves as may have been sent aside for bands of Indians by the Government of Canada with the consent and co-operation of the Government of British Columbia. The Provincial Crown consistently denied that the aboriginal people of British Columbia had, or were capable of having, any aboriginal rights or title and insisted that if any such aboriginal rights and/or title had existed that they had been extinguished upon the assertion of Sovereignty by the British Crown or by other act of the British Crown or Provincial Crown. This policy of the Provincial Crown amounted to an application of the doctrine of terra nullius to lands which were, in fact, occupied and subject to the aboriginal rights and title of the aboriginal people of British Columbia.
26. The Provincial Crown also consistently refused to recognize any right that the aboriginal people of British Columbia may have had to govern themselves and denied that the aboriginal people of British Columbia had social structures which allowed them to govern themselves. Moreover, the Provincial Crown consistently alleged that any right of self-government which aboriginal people may have had, was extinguished by the assertion of British Sovereignty.
27. In establishing reserves for the aboriginal people of British Columbia, the Provincial Crown gave priority to the rights of non-aboriginal persons who had pre-empted or otherwise claimed lands over the claims of aboriginal peoples. Moreover, the Provincial Crown consistently acted to limit or reduce the size of such reserves and the scope of the rights attached thereto wherever possible.
28. Once the reserves were established or set aside, the Provincial Crown allocated the resources of the Province outside of the reserves without regard to the claims of aboriginal people to these resources based upon their aboriginal rights and title. These allocation include, inter alia:

(i) the allocation of large forest tenures, including Tree Farm Licences and Forest Licences to various corporations;

(ii) the granting of rights in fee simple and other freehold and leasehold tenures over Crown land to non-aboriginal persons;

(iii) the granting of rights to use Crown land for a variety of reasons harmful to, or inconsistent with, the exercise of aboriginal rights and title;

(iv) the granting of rights to harvest marine resources on the foreshores of Crown lands or in the inter-tidal regions of British Columbia;

(v) the allocations of water rights;

(vi) the allocation of lands for reservoirs for the purpose of developing hydro-electricity for public and commercial use; and

(vii) the allocation of lands for parks or other public uses inconsistent with the exercise of aboriginal rights and title.

29. In addition to being dispossessed of their aboriginal rights and title, the aboriginal people of British Columbia were further disadvantaged by various laws and policies of British Columbia and of Canada, including, inter alia:

(i) from 1870 and until 1953, aboriginal people were denied the unrestricted right to pre-empt land pursuant to the Land Act of British Columbia;

(ii) from 1877 to 1949, the right of aboriginal people to vote in Provincial elections was restricted or denied;

(iii) from 1872 until 1960, the right of aboriginal people to vote in Federal elections was restricted or denied;

(iv) from 1885 until 1951, the right of aboriginal peoples to practice their traditional system of governance and many of their cultural practices was prohibited or limited by the anti-Potlatch laws; and

(v) from 1927 until 1951, the right of aboriginal people to pursue litigation for the purpose of advancing their lands claims was limited and effectively denied.

30. These various actions by the Crown and others were discriminatory on the basis of race and ethnic origin. These actions arose out of certain stereotypical assumptions held by many non-aboriginal persons about aboriginal persons, including, inter alia:

(i) that aboriginal people were uncivilized or lived in societies of such a primitive order of development that they could not govern themselves or be capable of holding legal rights;

(ii) that the cultures of aboriginal peoples were of such a primitive order of development that aboriginal cultures over time would either disappear or be assimilated into non-aboriginal cultures;

(iii) that the cultures and societies of aboriginal peoples were of such a primitive order of development that aboriginal people would be benefited by causing them to abandon their traditional cultures and ways of life and assimilate into non-aboriginal society;

(iv) that the manner in which aboriginal people occupied and used their lands and resources was less worthy of respect and legal protection than the manner in which non-aboriginal people proposed to use these same lands; and

(v) that aboriginal people were incapable of using their lands in valuable or worthwhile ways or of evolving or adapting to the changes that were occurring in the economy and environment on account of contact with Europeans and the assertion of British Sovereignty.

31. As a result of this historic discriminatory treatment, the aboriginal people of British Columbia have suffered in a number of ways, including:

(i) much of the land and resources needed to support and sustain their cultures and societies have been granted to third parties or otherwise allocated to non-aboriginal uses or interests and are not presently available for aboriginal use without displacing the interests and expectations of non-aboriginal parties;

(ii) the aboriginal societies which existed prior to the arrival of Europeans in British Columbia and the assertion of British Sovereignty, have been largely fragmented by the imposition of the anti-Potlatch laws, the residential school system and the Indian Act band structure and the refusal of both the Federal and Provincial Crown to recognize their traditional societal structure and means of self-government;

(iii) non-aboriginal persons have developed settled expectations of enjoying certain economic and non-economic benefits, which are inconsistent with the exercise of aboriginal rights and title or the setting aside of resources for treaty settlements, including, inter alia:

(a) the expectation of continued, unimpaired enjoyment of such lands and resources that have been allocated to non-aboriginal parties by the Provincial Crown;

(b) the expectation of continued, unimpaired enjoyment of resources which have been dedicated to public uses by the Provincial Crown, such as the use and enjoyment of parks and the enjoyment of hunting, fishing and recreational opportunities on Crown Land; and

(c) the expectation of the continuation of the Provincial Crown’s right to alienate or distribute resources, including Crown Lands and the forest and mineral resources thereon, for the benefit of non-aboriginal persons;

(iv) non-aboriginal persons have maintained certain stereotypical views of aboriginal peoples, including, inter alia:

(a) that the aboriginal societies pre-existing the arrival of Europeans and the assertion of British Sovereignty, lacked the ability to govern themselves and were at such a primitive order of social and cultural development that the aboriginal peoples lacked legally enforceable rights;

(b) that the aboriginal peoples of British Columbia either do not have aboriginal or treaty rights, or that such rights are merely of recent origin and are unworthy or protection;

(c) that aboriginal people do not have the inherent right to self-government or that right has been extinguished in such a way that such rights of self-government cannot or should not be incorporated into treaties with aboriginal people; and

(d) that aboriginal people for cultural, racial or ethnic reasons do not have an appropriate work ethic and support themselves at the expense of non-aboriginal people through unjustified tax exemptions, government transfers and land claims;

(v) aboriginal people have not been afforded adequate legal mechanisms to facilitate the recognition and protection of their aboriginal rights in comparison to the legal mechanisms which have been implemented to recognize and protect non-aboriginal interests. As a consequence of this aboriginal rights and title are beset with uncertainty and a lack of clarity. This makes it exceedingly difficult for aboriginal people to realize the economic and other benefits of these rights without resorting to costly and uncertain litigation. This uncertainty and lack of clarity has been further exacerbated by the Provincial Crown’s stated policy of not recognizing aboriginal rights or title without a judicial declaration of the particular aboriginal right or title in question; and

(vi) aboriginal people have been economically and socially disadvantaged and have suffered a whole range of social ills flowing from such disadvantage.

The Origins of the British Columbia Treaty Process

32. Beginning with the decision of the Supreme Court of Canada in Calder v. A.G. (B.C.) in 1973, a series of judicial decisions began to undermine the legal premises for the discrimination described above and began to draw into question the cultural, political and social assumptions underlying this discrimination. In addition, the citizens of Canada in general, and British Columbia in particular, were becoming increasingly cognizant of the economic and social consequences of the historical discrimination that had been inflicted upon aboriginal people in British Columbia. Furthermore, the citizens of Canada became increasingly aware of growing social and political discontent within the aboriginal community. They recognized that this discontent threatened the peace, order and good government of Canada. This history of discrimination and its consequences hampered Canada’s ability to honour its various human rights commitments, enshrined both in the Charter of Rights and Freedoms and in various international Treaties and Covenants to which Canada is a High Contracting Party.
33. In or about 1990, the governments of British Columbia and Canada and representatives of the aboriginal peoples of British Columbia engaged in discussions and entered into a formal study of how to best address the question of how to resolve the issue of the historical mistreatment of aboriginal people in British Columbia without resorting to litigation, violent protest or other confrontational means. The parties appointed a group consisting of representatives of each of the three parties, called the British Columbia Claims Task Force to carry out this study. The Task Force delivered its report in 1991. This report described the state of affairs relating to aboriginal people existing in British Columbia up to that time and recommended the formalization of negotiations with a view to the formation of treaties between aboriginal peoples and the Crown, both in right of British Columbia and Canada.
34. As a result of these discussions and the report of the British Columbia Claims Task Force, the aboriginal people of British Columbia, Canada and the Provincial Crown established, through solemn commitments, a written agreement and supporting legislation, a formal process for conducting treaty negotiations and entered into these negotiations (the "British Columbia Treaty Process"). The establishment of this process and the participation of various aboriginal people in these negotiations was based upon certain fundamental understandings, including, inter alia:

(i) that the aboriginal people of British Columbia would be engaged in negotiations with the Crown and not with non-aboriginal persons;

(ii) that the Provincial Crown and the Federal Crown would abide by the recommendations of the British Columbia Claims Task Force;

(iii) that the entrenchment of meaningful self-government as a treaty right would be a subject of the negotiations;

(iv) that the Crown would negotiate in good faith and, more generally, would conduct itself in such a way as to uphold the honour of the Crown; and

(v) that the Crown had sufficient power and authority to give a mandate to negotiators to conduct negotiations in good faith and in accordance with the maintenance of the honour of the Crown.

35. Negotiations have continued on this basis with the aboriginal people who have voluntarily entered into the above described treaty process. The aboriginal peoples of British Columbia have incurred significant expenses and have invested significant resources in participating in this process and have foregone opportunities to pursue litigation, with commensurate loss of traditional knowledge through the death of elders and the passage of time.

The History of the Treaty Referendum

36. The Referendum had its genesis in the political positions of the BC Liberal Party, whose elected members comprised Her Majesty’s Loyal Opposition in the period preceding the previous general election. The BC Liberal Party advanced the idea of the Referendum along with an number of other positions related to the place of aboriginal people in British Columbia and the making of treaties with aboriginal people, including, inter alia:

(i) that the aboriginal right to self-government had been extinguished and that it was therefore both unlawful and against public policy to entrench aboriginal self-government in treaties with aboriginal people;

(ii) that aboriginal self-government should take the form of delegated self-government outside of treaties and be subject to legislative modification by either Parliament and/or the British Columbia legislature;

(iii) that the settled expectations of non-aboriginal persons in relation to private parties, existing licences, resource exploitation and parks should not be compromised by the making of treaties with aboriginal peoples; and

(iv) that the existing tax exemption for aboriginal peoples should be abolished over time as a part of treaty making.

37. Geoff Plant, (now the Attorney-General and the Minister Responsible for Treaty Negotiations), Gordon Campbell (now the Premier) and Michael De Jong (now the Minister of Forests), in their capacities as Members of the Legislative Assembly and as members of Her Majesty’s Loyal Opposition prior to the last provincial general election, commenced a legal proceeding to challenge the self-government provisions of the Nisga’a Final Agreement, alleging, inter alia, that, as the aboriginal right to self-government had been extinguished it was unconstitutional to entrench the aboriginal right to self-government in treaties with aboriginal peoples (as had been done in the Nisga’a Final Agreement). This action was dismissed by the Supreme Court of British Columbia and the appeal from that dismissal by the now Attorney-General, the Premier and the Minister of Forests, abandoned following that last general election.
38. Both before and during the process leading up to the ratification of the Nisga’a Final Agreement and during the last general election, the Attorney-General, the Premier, the Minster of Forests and the members of the Liberal Party of British Columbia generally campaigned on, and promoted the position that the aboriginal right to self-government should not be entrenched in treaties with aboriginal people and the other positions described above. They campaigned on the position that these issues would be put to the public in a referendum for ratification.

The Referendum is Inconsistent with and Interferes with the Duties of the Crown

39. The Referendum is inconsistent with and interferes with the duties of the Crown set out above and therefore is inconsistent with and interferes with the aboriginal right of all aboriginal peoples to expect the Provincial Crown to act in accordance with the duties imposed by the common law on the Crown in all of its aspects, in that:

(i) the Referendum is intended to limit the scope of treaty negotiations and to exclude the possibility of treaties recognizing or protecting rights which already exist or which have been recognized and protected in other treaties. The rights which the Referendum is intended to exclude from recognition or protection in treaties include, without limitation :

(a) the aboriginal and treaty right to self-government;

(b) aboriginal title to lands included within parks;

(c) the aboriginal and treaty right to hunt, fish and otherwise harvest natural resources in priority or to the exclusion of other British Columbians; and

(d) the statutory right to be exempt from taxes that could potentially dispossess aboriginal people of their entitlements under treaty, aboriginal, statutory or other rights;

(ii) the Referendum promotes or entrenches fixed bargaining positions to be taken by the Provincial Crown in treaty negotiations with aboriginal people; and

(iii) the Referendum is unfair and demonstrates an oblique motive on the part of the Provincial Crown in that the questions are designed to, and do, promote and entrench a view of aboriginal people which is inconsistent with their recognized aboriginal rights and with the rights that have been previously extended to aboriginal peoples in other treaties.

Effect of the Referendum on Treaty Negotiations and Aboriginal Peoples

40. The holding of the Referendum demeans the dignity of aboriginal people and reinforces stereo-typical views held by non-aboriginal people of aboriginal people in that:

(i) it asks the general public to adopt and ratify positions which are in themselves demeaning of aboriginal people in that the positions reflect and reinforce the historical mistreatment of aboriginal people by ratifying and reinforcing the injury that has been inflicted on aboriginal peoples by the historical denial of their rights;

(ii) it limits, both through the legally binding effect and political effect of the Referendum, the ability of the aboriginal people to deal with the Crown confident in the knowledge that the Crown’s dealings with aboriginal people are to be guided by the principle that the Crown is bound to maintain its honour when dealing with aboriginal peoples and that it must negotiate in good faith;

(iii) it establishes general principles which govern the conduct of the Crown by establishing uniform positions on critical issues in treaty negotiations, thus preventing the Crown from addressing the distinctive cultures, societies, histories and particular circumstances of different aboriginal peoples in relation to these issues;

(iv) it undermines the ability of the Federal Crown and the Provincial Crown to enter into treaties with aboriginal people generally, and through the British Columbia Treaty Process in particular. It does so by promoting and entrenching fixed positions in treaty negotiations which are inconsistent with the known aspirations and requirements of the aboriginal peoples of British Columbia, particularly in respect of the aboriginal of self-government;

(v) the Referendum, regardless of outcome, will tend to polarize public opinion in respect of the questions posed and thus reinforce the opinions of those persons who have adopted the stereotypical views of aboriginal people which have been perpetuated by the historical mistreatment of the aboriginal peoples of British Columbia; and

(vi) the Referendum is being carried out in circumstances where there is a known and identified lack of knowledge and understanding of the legal rights and circumstances of the aboriginal people of British Columbia, and that lack of knowledge has itself been caused or contributed to by the historical mistreatment of these people.

41. The Referendum also demeans the dignity of aboriginal peoples in the manner in which it is held, in that:

(i) the Treaty Negotiations Referendum Regulation does not establish or regulate the manner in which persons and organizations, including the Liberal Party of British Columbia and others, can campaign, despite the clear disadvantages that aboriginal people have in making their position and views regarding the questions posed in the Referendum known due to their lack of financial and other resources;

(ii) the Treaty Negotiations Referendum Regulation does not provide financial or other support for aboriginal peoples to make their positions with respect to the questions posed in the Referendum known or to effectively campaign, despite the clear financial disabilities existing for aboriginal people wishing to participate in the Referendum; and

(iii) the Treaty Negotiations Referendum Regulation does not provide a forum which would allow aboriginal people to participate in a meaningful public debate about the Referendum or any other mechanisms by which they could affect the outcome of the Referendum by means of such participation.

42. This demeaning effect of the process adopted by the Provincial Crown is reinforced by the fact that the Provincial Crown is able to use its ability to compose the questions, use public resources, its privileged position and access to the media to promote its position in the Referendum and to espouse its views of aboriginal people.
43. The holding of the Referendum also demeans the dignity of aboriginal peoples in that it constitutes a breach of the duty to negotiate in good faith imposed on the Crown in its participation in the British Columbia Treaty Process. It does so by purporting to impose binding fixed limits on the Provincial Crown’s ability to participate in these negotiations. Moreover, by purporting to have the power to impose such unilateral binding limitations on the scope of negotiations, the Provincial Crown undermines the confidence of aboriginal peoples in the effectiveness and fairness of the British Columbia Treaty Process and the ability of the Crown to meaningfully address the needs of aboriginal peoples generally through treaty negotiations.
44. For each of these reasons the holding of the Referendum or the adoption of any of all of the questions posed in the Referendum will substantively harm the aboriginal peoples of British Columbia by undermining the effectiveness and usefulness of treaty negotiations as a means of addressing and resolving the fair and reasonable expectations of the aboriginal peoples of British Columbia seeking to redress the injuries that have been done to them through the historical mistreatment of them, as described above.

Breach of Section 35 of the Constitution Act, 1982

45. The Treaty Negotiations Referendum Regulation unjustifiably breaches s. 35(1) of the Constitution Act, 1982, in that, by conducting the Referendum the Provincial Crown:

(i) has breached its duty to uphold the honour of the Crown in its dealings with aboriginal people by using a popular referendum with the intent of unreasonably limiting the scope of negotiations regarding what treaty rights will be included in treaties with the aboriginal people of British Columbia. In particular, with the intent of limiting the scope of negotiations so as to preclude the negotiation of any treaty right to aboriginal self-government;

(ii) has breached its duty to negotiate in good faith with aboriginal people in that the Referendum is designed to promote and entrench fixed positions to be taken by the Provincial Crown in treaty negotiations with the aboriginal peoples of British Columbia;

(iii) has breached its duty to act fairly and without oblique motive in its dealings with aboriginal people in that the Referendum promotes and entrenches a view of aboriginal people and their rights which is inconsistent both with their recognized aboriginal rights and with the rights that have been previously extended to aboriginal peoples in other treaties.

Breach of Section 15

46. The Referendum and the Treaty Negotiations Referendum Regulation breach s.15 of the Charter of Rights and Freedoms by discriminating against the Plaintiffs on the basis of prohibited grounds, in particular, race and ethnic origin, and denying them the equal benefit and protection of the law.
47. The Referendum and the Treaty Negotiations Referendum Regulation are not saved by s. 1 of the Charter of Rights and Freedoms.

The Treaty Negotiations Referendum Regulation is Ultra Vires the Province

48. Exclusive legislative jurisdiction over Indians and Lands reserved for the Indians is reserved to Parliament pursuant to s. 91(24) of the Constitution Act, 1867.
49. The exclusive legislative jurisdiction of Parliament over Indians and Lands reserved for the Indians, includes:

(i) exclusive jurisdiction over the Royal Prerogative to enter into treaties with aboriginal people;

(ii) exclusive jurisdiction over the common law relating to Indians, including the common law governing when and who the Crown may enter into treaties with aboriginal peoples and the manner in which negotiations leading to such treaties are to be conducted; and

(iii) exclusive jurisdiction over matters relating to the self-government of aboriginal peoples, both in regard to their self-regulation and their regulation of their property and rights as aboriginal peoples.

50. The Treaty Negotiations Referendum Regulation is legislation which is in pith and substance in relation to Indians and Lands reserved for the Indians, in that it purports to establish a process which will determine and make legally binding the terms under which the Crown will enter into treaty negotiations and conduct treaty negotiations with the aboriginal peoples of British Columbia. As such the regulation is ultra vires the Crown and of no force and effect pursuant to s. 52 of the Constitution Act, 1982.
51. Alternatively, to the extent that the Treaty Negotiations Referendum Regulation directs that the Referendum include a question concerned exclusively with aboriginal self-government, that part of the regulation is in pith and substance a law in relation to Indians and Lands reserved for the Indians, and to that extent, ultra vires, the Crown. It is therefore, to that extent, of no force and effect.

Treaty Negotiations Referendum Regulation is of No Force and Effect

52. The Treaty Negotiations Referendum Regulation is therefore of no force and effect pursuant to s. 52 of the Constitution Act, 1982 and consequently, the Referendum is unlawful.
53. Wherefore the Plaintiffs seek the following relief:

(i) a declaration that the Treaty Negotiations Referendum Regulation is of no force and effect as a breach of s. 35(1) of the Constitution Act, 1982;

(ii) a declaration that the Treaty Negotiations Referendum Regulation is of no force and effect as a breach of s. 15 of the Charter of Rights and Freedoms;

(iii) a declaration that the Treaty Negotiations Referendum Regulation is of no force and effect as being a law in relation to Indians and Lands reserved for Indians and therefore ultra vires Her Majesty the Queen in Right of British Columbia;

(iv) a declaration that the Treaty Negotiations Referendum Regulation is of no force and effect to the extent that the Treaty Negotiations Referendum Regulation purports to direct that questions relating to matters of exclusive federal jurisdiction are to be included in the ballot for the Referendum.

(v) an order enjoining the Chief of Electoral Officer of British Columbia from taking any further steps to conduct or continue to conduct the Referendum or counting the ballots cast in the Referendum; and

(vi) costs in this action; and

(vii) such further and other relief as counsel may advise and this Honourable Court permit.

 

Dated the ____ day of April, 2002 _________________________________

Robert J.M. Janes

ACTION NO. __________

VANCOUVER REGISTRY

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

WILSON BOB, ROBERT SAM

RODERICK NAKNAKIM, MAVIS ERICSON and

LYDIA HWITSUM

PLAINTIFFS

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF

BRITISH COLUMBIA, the ATTORNEY GENERAL and MINISTER

RESPONSIBLE FOR TREATY NEGOTIATIONS and the

CHIEF ELECTORAL OFFICER OF BRITISH COLUMBIA

DEFENDANTS

STATEMENT OF CLAIM

Cook Roberts (Box 204)

Barristers and Solicitors

7^th Floor - 1175 Douglas Street

Victoria, BC V8W 2E1

Ph: (250) 385-1411 u Fax: 413-3300

File: 24337 RJMJ/

ACTION NO._________

VANCOUVER REGISTRY

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

WILSON BOB, ROBERT SAM

RODERICK NAKNAKIM, MAVIS ERICSON and

LYDIA HWITSUM

PLAINTIFFS

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF

BRITISH COLUMBIA, the ATTORNEY GENERAL and MINISTER

RESPONSIBLE FOR TREATY NEGOTIATIONS and the

CHIEF ELECTORAL OFFICER OF BRITISH COLUMBIA

 

 

DEFENDANTS

 

WRIT OF SUMMONS

Name and address of each plaintiff:

Wilson Bob

c/o Nanoose First Nation

209 Mallard Way

Lantzville, B.C. V0R 2H0

Robert Sam

c/o Songhees First Nation

1500D Admirals Road

Victoria, B.C. V9A 2R1

Roderick Naknakim

c/o We Wai Kai First Nation

P.O. Box 220

1 We Wai Road

Quatiaski Cove, B.C. V0P 1N0

Mavis Ericson

c/o Nahleh Whut’en Band

Fort Fraser, B.C. V0J 1N0

Lydia Hwitsum

c/o Cowichan Tribes

5760 Allenby Road

Duncan, B.C. V9L 5J1

c/o Robert J.M. Janes

Cook Roberts

7^th Floor - 1175 Douglas Street

Victoria, B.C. V8W 2E1

 

Name and address of each defendant:

Her Majesty the Queen in Right of the Province of British Columbia

Ministry of Attorney General

1001 Douglas Street

Victoria, B.C. V8V 1X4

The Attorney General and Minister Responsible for Treaty Negotiations

Parliament Buildings

Rm. 232

Victoria, B.C. V8V 1X4

The Chief Electoral Officer of British Columbia

c/o Elections British Columbia

1075 Pendergast Street

Victoria, B.C. V8W 9J6

ELIZABETH THE SECOND, by the Grace of God, of the United Kingdom, Canada and Her other Realms and Territories, Queen, Head of the Commonwealth, Defender of the Faith.

To the defendants:

TAKE NOTICE that this action has been commenced against you by the plaintiffs for the claims set out in this Writ.

IF YOU INTEND TO DEFEND this action, or if you have a set off or counterclaim which you wish to have taken into account at the trial, YOU MUST

(a) GIVE NOTICE of your intention by filing a form entitled "Appearance" in the above registry of this court, at the address shown below, within the Time for Appearance provided for below and YOU MUST ALSO DELIVER a copy of the Appearance to the plaintiff's address for delivery, which is set out in this writ, and

(b) if a Statement of Claim is provided with this Writ of Summons or is later served on or delivered to you, FILE a Statement of Defence in the above registry of this court within Time for Defence provided for below and DELIVER a copy of the Statement of Defence to the plaintiff's address for delivery.

YOU OR YOUR SOLICITOR may file the Appearance and the Statement of Defence. You may obtain a form of Appearance at the registry.

 

JUDGMENT MAY BE TAKEN AGAINST YOU IF

(a) YOU FAIL to file the "Appearance" within the Time for Appearance provided for below, or ,

(b) YOU FAIL to file the Statement of Defence within the Time for Defence provided for below.

 

TIME FOR APPEARANCE

If this writ is served on a person in British Columbia, the time for appearance by that person is 7 days from the service (not including the day of service).

If this writ is served on a person outside British Columbia, the time for appearance by that person, after service is 21 days in the case of a person residing anywhere within Canada, 28 days in the case of a person residing in the United States of America, and 42 days in the case of a person residing elsewhere.

 

TIME FOR DEFENCE

A Statement of Defence must be filed and delivered to the plaintiff within 14 days after the later of

(a) the time that the Statement of Claim is served on you (whether with this Writ of Summons or otherwise) or is delivered to you in accordance with the Rules of Court, and

(b) the end of the Time for Appearance provided for above.

[or, if the time for defence has been set by order of the court, within that time.]

(1) The address of the registry is: The Law Courts, 800 Smithe Street, Vancouver, B.C. V6Z 2E1

(2) The ADDRESS FOR DELIVERY is: COOK ROBERTS, Barristers and Solicitors, 7th Floor, 1175 Douglas Street, Victoria, BC V8W 2E1 Fax number for delivery: (250) 413-3300

(3) The name and office address of the plaintiff's solicitor is: same as 2 above

Endorsement

54. The Plaintiffs are aboriginal persons within the meaning of s. 35 of the Constitution Act, 1982 and are Indians, both within the meaning of s. 91(24) of the Constitution Act, 1867 and the Indian Act, R.S.C. 1985, c. I-5.
55. Her Majesty the Queen in Right of British Columbia (the "Provincial Crown") is that aspect of the Crown charged with the administration of the executive government of British Columbia.
56. The Attorney General and the Minister Responsible for Treaty Negotiations (the "Attorney General") is that Minister of the Provincial Crown responsible for the administration of matters on behalf of the Provincial Crown in British Columbia relating to the negotiation of treaties with the aboriginal people of British Columbia.
57. The Chief Electoral Officer of British Columbia is an officer of the Legislature charged under the Treaty Negotiations Referendum Act, Order-in-Council 219/2002 with various duties related to the conduct of the Referendum (as defined below), including conducting and overseeing the counting of the ballots cast in the Referendum
58. On March 15, 2002, Her Majesty the Queen in Right of British Columbia ("Provincial Crown"), with the advice and consent of the Executive Council made the Treaty Negotiations Referendum Regulation which orders the holding of a referendum (the "Referendum"). The Referendum is to be held in British Columbia regarding the manner in which the Province will conduct treaty negotiations with aboriginal people in British Columbia. The questions to be posed in the referendum ordered pursuant to that regulation are attached as Schedule "A".
59. The Treaty Negotiations Referendum and the Referendum infringe the s. 35(1) rights of the Plaintiffs to expect the Provincial Crown to act in accordance with the various duties imposed upon the Provincial Crown by the common law, including, without limitation:

1. the duty to at all times uphold the honour of the crown at all times in its dealings with aboriginal peoples;
2. the duty to act fairly and without oblique motive in its dealings with aboriginal peoples;
3. the duty to negotiate in good faith with aboriginal people when engaged in treaty negotiations;
4. the duty to take account of and where possible accommodate the unique interests and rights of aboriginal people.

60. The Treaty Negotiations Referendum and the Referendum discriminate against the aboriginal people of British Columbia in a manner that offends s. 15 of the Charter of Rights and Freedoms in that it demeans the dignity of aboriginal people by reinforcing stereotypical views of aboriginal people and by reinforcing the historic disadvantages that aboriginal people have suffered on account of the Crown’s policy of refusing to acknowledge and respect their rights and entitlements as aboriginal people. Furthermore, the process adopted for the referendum discriminates against aboriginal people by failing to afford them the means to meaningfully participate in the Referendum process
61. The Treaty Negotiations Referendum Regulation is also ultra vires the Crown as an attempt to legislate on a matter within the exclusive jurisdiction of Parliament and Her Majesty the Queen in Right of Canada. In particular, it is a law which in pith and substance is directed at modifying or amending the federal common law governing the relationship between the Crown, including the Provincial Crown, and aboriginal people.
62. The Plaintiffs seek the following relief: