CKNW Editorial
for May 17, 2000

The Nisga'a case which has opened in Supreme Court this week will undoubtedly go to the Supreme Court of Canada and it will pit the lawyers on the benches concerned with the social workers. Essentially, as I understand it, the case will be a pretty simple one to follow though the legal arguments might not be.

The lawyer-judges, that is any who will find for the Liberals, will hold that the entire jurisdictional pie in Canada is occupied by Ottawa and the provincial governments. In short that there is no "constitutional room" for a new player. They say that if a new player is in the game, namely Nisga'a, that there has to be an amendment to the constitution and this requires the unanimous consent of Ottawa and all the provinces and that because of British Columbia law, that would mean a referendum.

The social worker-judges will not really disagree with that but their argument runs something like this. Before the settlers came, Indian bands enjoyed self government and under section 35 their aboriginal rights are preserved and … this is the federal government’s and British Columbia’s view of what that self government was like … so it is automatically covered by section 35 and all the governments did was put constitutional meat on the bones so to speak. In other words they are saying that the Treaty simply codifies what was already in existence and thus was preserved by section 35. It follows, then, according to this argument, that any aboriginal rights now recognized, whether or not they in fact existed at the time of white settlement, by the constitution are retroactively recognized.

It will be a fascinating contest.

As a lawyer, though I think that the Nisga’a Treaty is a bad one, I find myself more and more persuaded that the second argument will be found attractive by the courts. If aboriginal self government is included in the term … "The existing aboriginal and treaty rights of the aboriginal peoples" … which is the wording of section 35 … and that is a very big if … then the Liberal case will be tossed out. The courts will have to ignore the fact that the people rejected the notion of aboriginal self-government in the Charlottetown Referendum but the court will not likely have any trouble doing that.

It's hard to know what will happen in the British Columbia courts. The Courtof Appeal will be the fascinating place because one judge, Mr Justice Douglas Lambert, has already spoken out on the side of Nisga'a and presumably he will disqualify himself from the case. In the Supreme Court of Canada I assume that, in light of Delgamuukw, the court will come down on the side of the natives although to do so they will have to fly in the face of earlier decisions. You may recall that former justices Bud Estey and William McIntyre came down on the side of the lawyers but, of course, they no longer sit on the bench.

I have a couple of observations. I think the social workers will win. The tendency away from interpretation of the law based upon precedents towards shaping a new social contract for Canada seems to be too strong a temptation for the Supreme Court to resist. I, of the lawyer's ilk, disagree with this tendency but that's really irrelevant.

It's sad that the legal implications were not cleared away before the treaty passed the BC legislature and the Parliament of Canada. That would have made such good sense and now the courts who are supposed to ignore such things - once did, now don't - will feel pressure not to scupper a done deal.

The other comment concerns the fallout if the social engineers win. There will be pressure from all other Indian bands across Canada to have the same sort of government and quite apart from all other considerations it will be hugely expensive.

But then the social engineers don't have to worry about those sorts of mundane matters do they?

I am quite uncertain whether or not the law of the land will be followed … but we can be sure that at the end of the day the law will, for better or worse, be made.