CKNW Editorial
for March 21, 2000

What a horrible way to be vindicated. And how appalling it is for everyoneaffected.

From the outset, I have been questioning the constitutionality of the Nisga'a treaty. The arguments I made were shouted down by the government and the Indian Industry in general. You didn't have to listen too carefully to note the accusation of racism. Colleagues in the media drowned out my arguments with conscience stricken cries about the need to make a treaty whatever the consequences ... the government of British Columbia ignored me ... so did the entire higher purposes persons brigade which thought that all the problems of the province could be settled if we just did the "right" thing. I was not alone on this one - not by a long shot. I was fortified by an opinion given by Mel Smith to the provincial Liberals and by speeches he gave as well as the many private talks we had. There were many others – Phil Eidsveck comes to mind for one. But the other most outspoken voice crying out for timely judicial review was the always courageous Gordon Gibson.

What's this all about?

Well, in the past 24 hours two distinguished former Supreme Court of Canada judges have stated that the Nisga'a deal is unconstitutional and for the very reasons Mel Smith gave in the opinion I mentioned.

The constitutional argument is very simple. The Constitution of Canada gives the entire power spectrum to the two senior governments, the federal government under Section 91 of the Constitution Act and to the provinces under Section 92. The Supreme Court of Canada has affirmed that there is no room left for the exercise of power - it's either with Ottawa or the provinces.

Mel Smith maintained that the province of British Columbia and the Federal government, by giving Nisga'a exclusive right to govern in a number of areas, were doing that which could only be done by amending the constitution of Canada. And to amend the Constitution in this case, because it involves the division of powers, requires unanimous consent of the provinces and Ottawa. British Columbia law requires that a referendum be held before any constitutional amendment is agreed to by our legislature.

I warned these idiots in Victoria that there was a very difficult constitutional question here and the provincial Liberals went one better and took the government to court. In a decision I can only describe as bizarre, the trial judge postponed the hearing until after the Treaty became law.

What should have been done here?

Anyone with half a brain could answer that. It's not rocket science. You do what Pierre Trudeau did before bringing the Constitution home with substantial amendments - you refer the matter to the court before you sign a damned thing.

But no ... this matter was wrapped in emotion and entwined with the NDP's political record of ill thought out promises. The treaty was the result of conscience stricken poetry which denied practicality and the people's wishes at every turn. Those of us who pointed out the utter folly of making a treaty where the constitution al power to do so was in question, without getting a court ruling first, were called racist for our trouble.

We have now a treaty, passed by both the Province of BC and the House of Commons, in great doubt. There is an enormous cloud over this treaty and over other negotiations. And if the treaty fails in the Supreme Court of Canada – which it will if the court, for once, decides the law instead of creating social policy - then what? One can only imagine!

Now the opinions of the Honourable Willard Estey and the Honourable William McIntyre, powerful as they are, are not definitive of the matter. The courts are not bound by the opinions of former judges. It may be that in the fullness of time the Supreme Court of Canada will disagree with their former colleagues. But this doesn't alter the fact that we've been bloody fools.

What would public opinion on this matter have been if before the legislature passed, people were told that in the opinion of two highly respected Supreme Court of Canada judges the Treaty was unlawful? Might not two or three NDP MLA's, for once obeying the wishes of their electorate as well as their common sense have voted against the treaty?

But the overriding question is this - what legislature, what House of Commons, would pass a piece of highly contentious legislation, with huge ramifications for all time, without settling the legal questions first?

The answer, of course, is only legislators who were not only gutless, but utter damned fools to boot.

And they were warned – over and over again they were warned.

Our two governments, Victoria and Ottawa, instead of getting a ruling – just as a prudent business person would get a tax ruling in a major endeavor where the tax implications were in doubt – our governments have crashed ahead, to suit the political agendas of the New Democratic Party in BC especially and have run the risk of setting aboriginal affairs and their proper settlement back perhaps a decade or even much more than that.

And both of them, the BC NDP and the Federal Liberals think we should vote for them in the next election!

In a lifetime of observing matters political I have never seen anything - and this covers a hell of a lot of ground - quite as stupid as this.