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Civil liberties group calls for respect for democratic rights on non-aboriginals in aboriginal self-government

The B.C. Civil Liberties Association today released a position paper on democratic rights for non-aboriginal individuals who reside within aboriginal territories. The civil rights group is calling on governments and treaty negotiators to ensure that these residents’ democratic rights to participate meaningfully in decision-making on issues that affect them is respected in future arrangements for aboriginal self-government.

The BCCLA makes a strong case for respecting the democratic rights of non-aboriginal residents who make their home within aboriginal jurisdiction, whether on a reserve or within future treaty lands. It is a companion position to the Association’s support for the Nisga’a treaty and for aboriginal self-government generally.

According to BCCLA president Craig Jones: “This important issue affects thousands of non-aboriginals already, and will likely affect many more as treaties are negotiated throughout the province. The Association spent much of this year deliberating on this complex question. We hope that our perspective will help inform treaty negotiations and other initiatives to bring justice to First Nations through increased self-government.”

The BCCLA was originally approached by leaseholders on the Musqueam Indian Reserve who complained that the Musqueam Band unfairly administers property taxes. Upon considering their concerns, the Association recognized that the issues raised in the leaseholders’ complaint arise whenever an aboriginal community exercises government authority over non-aboriginal individuals resident within aboriginal jurisdiction.

The Association’s position balances the competing claims of aboriginal self-government and democratic rights for non-aboriginal residents, and sets out six principles:

The exercise of aboriginal self-government authority, such as property taxation under the Indian Act, raises civil liberties concerns for non-aboriginal individuals living in aboriginal jurisdictions. This issue is not just a private dispute between contracting parties.

People who live in an aboriginal jurisdiction, but are not members of the Indian Band or First Nations community, have no right to membership in the aboriginal political community and cannot vote for band councils or aboriginal governments.

However, residents of an aboriginal jurisdiction do have a right to participate meaningfully in decision-making regarding matters that significantly and directly affect them.

Canada, as democratic society, promises that all Canadians, aboriginal and non-aboriginal alike, have a meaningful opportunity to influence the rules that we live by. Aboriginal self-government is subject to Canadian sovereignty and constitutional norms.

To balance the principle of aboriginal self-government and the right of non-aboriginals to participate in decision-making, democratic procedures and institutions may be weighted to ensure that aboriginal people are not outvoted by a larger non-aboriginal population.

Participation for non-aboriginal residents must be meaningful. Advisory bodies will not provide sufficient opportunity for meaningful participation. Meaningful participation for non-aboriginal residents in decision-making is satisfied either by voting for elected representatives or participating in consensus-based decision-making processes.

Murray Mollard, who extensively researched this issue on behalf of the Association, states: “After supporting the principles of the Nisga’a Treaty in 1998, the Association’s Board of Directors realized that we had to carve out a meaningful role for non-aboriginal residents in aboriginal jurisdiction without fundamentally undermining the principle of self-government. Our society must be careful that it does not create a new class of disenfranchised people while remedying the years of injustices against First Nations. Government and treaty negotiators must be sensitive to preserving a meaningful role for non-aboriginal residents.” The position paper is online at http://www.bccla.org/positions/political/00nonaboriginal.html.