Something of the same is now happening in British Columbia. The Nisga'a people have just voted in a referendum on the province's first aboriginal treaty, in settlement of their longstanding claim to thousands of square kilometres of the province's northwest. But whereas negotiators for the Nisga'a were obliged to take the treaty to their people for approval, no such obligation appears to fall upon the other parties to the deal. Neither Glen Clark, the premier of B.C., nor Jean Chretien, the prime minister, thinks it necessary to consult their electorates directly on the matter; Mr. Chretien will not even open it to a free vote in Parliament.

There is time enough to debate the merits of the agreement. For now let's consider the narrower question of whether it ought to be put to a referendum, at the least in B.C.

Regardless of how one feels about the treaty, is it not a matter of simple fairness that, if the issue were important enough that every Nisga'a should be entitled to vote on it, the same courtesy should apply to the other side?

One objection might be that the treaty's effects, for good or ill, will fall more heavily upon the 5,500 Nisga'a than upon the province as a whole. That's true, as far as it goes.

But the agreement's provisions are nonetheless both sweeping and unprecedented.

Beyond a simple transfer of title, it would create an entirely new order of government, combining the powers of a municipal government with some provincial and federal powers. In a number of specific areas, indeed, the agreement provides that Nisga'a law could override provincial or federal law.

While the Charter of Rights and Freedoms is supposed to apply, it is unclear what this would mean in light of the Charter's own internal caveat, to the effect that it should not be so interpreted "as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada." Nor are Charter ideals of equality easily squared with the construction of a system of government on essentially racial foundations.

These may be good ideas, they may be bad ideas, but they unarguably mean important changes to the way B.C. is governed. What is more, the agreement will undoubtedly be cited as a precedent in future land claims, more than 50 of which are pending in B.C.

alone. So the treaty surely meets the test of significance.

What other arguments might there be against putting the deal to a vote? Mr. Clark has trotted out several variants of the general case against referendums: they reduce complex questions to simple yes-no answers; they're divisive; and so on. But the same objections might as well be raised against the premier's preferred course. At some point, he and his cabinet had to decide whether to sign off on the treaty, yes or no, as at some point the B.C. legislature will do. At that moment, complex questions are reduced, willy-nilly.

As for divisiveness, which is more likely to engender racial mistrust in the province: an open, frank debate in which everyone has their say, or a quick bit of legislative steamrolling over the protests of much of the population? Whatever the treaty's merits, they would be lost in the cries of "conspiracy" that would follow.

The premier may be right in one respect: a referendum may not be legally obligatory.

That will depend on whether the courts find that the Nisga'a deal represents a substantive amendment to the Constitution, mandating a referendum under B.C. law, or merely confirms and codifies existing native rights, as guaranteed under Section 35 of the Charter. But if the latter is the case, it rather contradicts Mr. Clark's other point: that the rights of the minority should not be subject to a vote of the majority. If the treaty would not alter, but only confirm, rights already guaranteed under the Constitution, they can have nothing to fear from the people.