Treaty referendum case fails

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A lawsuit launched last month by the First Nations Treaty Negotiators Association (FNTNA) to stop the provincial referendum on treaty principles has failed.

British Columbia Supreme Court judge Madam Justice Smith ruled against an interlocutory injunction that would have prevented the counting of ballots.

Plaintiffs Wilson Bob (Nanoose), Robert Sam (Songhees), Rod Naknakim (Cape Mudge), Mavis Erikson (Carrier-Sekani), and Lydia Hwitsum (Cowichan) alleged the referendum would cause irreparable harm because it was unconstitutional, and hostile towards First Nations people.

"I am of the view that it would be too speculative to conclude that the mere reporting of the referendum results would cause the residents of British Columbia to become discriminatory, hostile and racially biased toward Aboriginal people," wrote Justice Smith in her decision, spelling out how the plaintiffs failed to prove irreparable harm from the counting of ballots.

On the positive side, the judge dismissed the notion of "Crown immunity," which the government has used several times in stopping previous Aboriginal rights and title cases.

Lawyer Robert Janes has recommended the plaintiffs not seek an appeal, as they might lose the Crown immunity decision, and the burden of proof on the plaintiffs would be higher, making it even more difficult to gain a positive decision. Instead, Janes has suggested the case either be taken to a full trial, or the two sides negotiate a dismissal without costs.

The FNTNA agreed to meet in the first week of June to discuss options and decide upon a course of action.