CKNW Editorial
for October 8, 1999

Power corrupts – absolute power corrupts absolutely. So said Lord Acton and a right wise old gent he was. The Supreme Court of Canada has, thanks to Trudeau’s 1982 Constitution, absolute power. And, as Stanley Baldwin once said during a British election "power without responsibility, is the prerogative of the harlot through the ages." I pause to mention that one particularly taffee nosed Tory was heard to exclaim "My God! he’s cost us the tart vote." But this is no place for levity, for the Supreme Court of Canada doesn’t have to live, politically, with the results of their addle-headed decisions.

We start with Delgamuukw which established that stories, legends and songs could be real evidence in native land cases. This was hailed by the Indian Industry as a far-sighted decision – it was about time the stodgy old rules of evidence were cast aside it was said.

Really? The rules of evidence which have grown up over the years have provided access to the truth by fair means. It’s not considered reliable to convict someone, for example, by hearsay standing alone. My Aunt heard that Uncle Charlie robbed a bank. Because Auntie cannot be cross examined as to the actual truth or otherwise of the robbery it is not, standing alone, admissible. There are dozens of exceptions to the hearsay rule and I only make the point that rules of evidence are not designed to obstruct, though they may unintentionally sometimes have that result, but to ensure that before liberty or rights are affected, evidence must be hard evidence, not rumour or tittle tattle.

With Delgamuukw oral history is now admissible to prove land claims. Sometimes this oral evidence of history will confirm hard evidence – fair enough – but to give it the weight of real evidence is plain silly. To say that the claims cannot be established in any other way is like me claiming to be entitled to half of New Zealand if the court would just please listen to the songs my grandfather used to sing to me.

Now I don’t wish to be heard mocking traditions. They are very important to a society and they may be a tool for helping people determine facts. But they are no more than that. They ought not to be definitive of matters any more than can rumours, however appealing they may be.

Now the Supreme Court of Canada has taken these words in a 1760 treaty, "I do further engage that we will not traffic, barter or exchange any commodities in any manner but with such persons or managers of such truck houses by His Majesty’s Governor in Acadia" to give an ironclad right to Mic Mac Indians to take lobsters and other wildlife whenever they damn well please. In short we have the preposterous proposition that an agreement to trade gives an unalienable right to the things to be traded. This is, with such respect as I am able to summon up, demonstrable nonsense as the dissenting judges said. Even the majority had a lot of trouble taking these words to confer an absolute right to hunt, fish and gather game 239 years after the treaty. They really had to work overtime to contort these words to achieve their desired social results.

It’s going to get worse. The Supreme Court of Canada has run amok, legally speaking that is. And my legal advice and my reading of Section 35 of the Constitution says that these judicial messes probably become part of the Constitution of Canada under Section 35 and thus, to all intents and purposes, unchangeable. This is, of course, the danger of Nisga’a – if it passes, at least that which gives them aboriginal self government will, upon it becoming law, be unamendable.

It’s going to get worse. There are a number of treaties concerning Indian Bands across the country including some on Vancouver Island which, no doubt, will be contorted by the Supreme Court of Canada so as to accord with the social values they deem appropriate to thrust upon the Canadian people.

And what are the governments you and I elect doing about all this? If they were doing nothing that would be one thing but in Nisga’a they are supporting the constitutionalizing of an aboriginal system of self government which clearly amounts to a back door amendment to the Constitution. One must assume that both the federal and provincial governments will continue to adjust the constitution without troubling themselves with the amending formula and will be delighted to see special rights to resources handed out to natives. There is no concern for conservation or sharing of the resource. The resources – which may well include mining and petroleum rights right across the country – will be given to whatever natives claim them.

That may seem like an extravagant statement until you see what Mic Mac has done to the Fisheries in Atlantic Canada and realize treaties with similar language exist across the country.

A caller recently suggested that ancient treaties should simply be junked. I was pretty short with him and perhaps I shouldn’t have been. But at that time I had not read Mic Mac and seen what the Supreme Court is prepared to do. This court is not interpreting title or rights, it is saying that the plain meaning of treaties is to be ignored. Here is what Mr Justice Binnie said for the majority … "While I do not believe that in ordinary commercial situations, a right to trade implies any right of access to things to trade … I pause to say if he had stopped there it would have ended the matter he goes on to say "I think the honour of the crown requires nothing less in attempting to make sense of the result of these 1760 negotiations." The honour of the bloody crown requires that a right be created, contrary to long established law, so that natives can haul out all the lobsters they wish all year long! This, then, is where we’re at. In law, the right to trade doesn’t confer a right to access the things to be traded EXCEPT, where natives are concerned, we turn the law on its ear.

There is very little amusing about all this but we in British Columbia are, I think, entitled to a small albeit sad grin as we see this entire mess cross the country and hit places a little closer to Ottawa. It’s very little satisfaction, I suppose, to know that the oil of Alberta and the mines of Ontario and Quebec will soon be on the list … and that all across Canada we will soon see Nisga’a governments of all sizes.

I’m not sure what Parliament can do but they better put their thinking caps on soon before the real voters, the ones in Central Canada that do all the real electing in this country, get wind of what is really happening.