CKNW Editorial
for October 31, 2001

I’m sorry Mr Attorney-General, it just isn’t good enough. You have weaseled out of pursuing your claim that the Nisga’a Treaty is unconstitutional and you can’t be permitted to get away with it.

You take two positions, as I understand it.

First you say that as a government you are barred, by the Nisga’a Treaty, from either challenging it or assisting anyone else to challenge it – this being the reason, you say, you cannot assist Chief Mountain and the dissident Nisga’a. But, with respect, that’s not how the Constitutional Questions Act is written. As I read the Act there are two main purposes – Section 1 provides for cabinet to refer – note the word "refer" a question to the Supreme Court or the Court of Appeal.

Section 8, permits a challenge – note the word "challenge" - to the constitutional validity of an act under The Charter of Rights and Freedoms. These are two very different things.

Unless I misread the Act there is no need for your government to challenge the constitutionality of Nisga’a but simply, under Section 1, refer the matter to the Court of Appeal to affirm or otherwise the constitutionality of the governance provisions of the Nisga’a Treaty. In short, you have, in my opinion, taken, deliberately, a very narrow interpretation of the Act and assumed that you must seek a remedy where the Act says no such thing. Indeed, I would suggest that there is a very good reason for Section 1 and it is to avoid the necessity of getting into the position where you must take a position. You could, clearly, refer the question to the Court of Appeal, with notice to appropriate parties without taking any position but simply as an honest broker wanting to determine if what the government has done is constitutional.

But, Mr Attorney, I take larger issue with you over the notion that once the three named plaintiffs, Gordon Campbell, Mike DeJong and yourself became cabinet ministers you had to drop the case … and I say it is deception unto outright dissembling to pretend that this case was not brought by the Liberal Party.

I have now gone back over the press reports and my own notes concerning utterances by Gordon Campbell to me when he was Leader of the Opposition and Leader of the Liberal party. Clearly – there can be no doubt on this score – that the public were unequivocally advised that the Liberal Party was challenging the constitutionality of Nisga’a. You yourself talked about the obligation of the provincial government to negotiate treaties that comply with the constitution. Mr Campbell, in launching the lawsuit on behalf of the Liberal Party, told the public he’d take the matter to the Supreme Court of Canada.

What is it that in fact happened here, Mr Attorney?

The Liberal Party of British Columbia took an action for a declaration that the Nisga’a Treaty was unconstitutional but, as a matter of procedure only, actually took the case in the name of Campbell, Dejong and yourself. Your position now that it wasn’t the Liberal Party that brought the action, but the three individual plaintiffs, would be unbecoming a Mississippi small town shyster much less the Attorney-General of B.C. This just the sort of self serving nit picking the public has come to expect of modern day lawyer/politicians. The public was consistently told by Mr Campbell, Mr Dejong, and yourself, in the case of Campbell and Dejong on this show, in the clearest possible terms, that the BC Liberals would take this case all the way to the Supreme Court of Canada.

Disingenuous in the extreme, you maintain that this wasn’t a campaign commitment. Yet if, prior to the election, you asked any ordinary citizen what a Liberal government would do about Nisga’a, they would say without hesitation they have promised to take the Nisga’a case to the Supreme Court of Canada.

Before going further let me say this – either you didn’t, before the election, read the Nisga’a Treaty and thus didn’t see that the government of BC was bound not to attack it, or you did. If you didn’t that’s a shocking dereliction of duty and I’ll assume you did. If you did, you must have felt certain that you could still maintain the Liberal Party’s court challenge or make a reference under the Constitutional Questions Act … or you were prepared to go back on your word. If either you didn’t read the Treaty or having read it, decided that you would have to drop the case and refrain from making the challenge, you have deceived the BC voter every bit as much as the NDP did with their fudget budgets.

I say the following things, Mr Attorney

1. you can make a reference notwithstanding the Treaty for section 1 of the Constitution Questions Act calls not for a challenge but merely a reference

2. when the Liberal party brought it’s actions in the names of three individuals that was mere form, not substance, and the Liberal party of BC, through its leader, Dejong and you, pledged to the people of BC that you would see this matter through.

3. The fact that all three named plaintiffs are now cabinet is either self serving or irrelevant. If relevant it is self serving because Mr Campbell did not have to make you and Dejong cabinet ministers. I say more likely it is irrelevant until you can cite me authority for the proposition that a cabinet minister cannot be party to a lawsuit against the government. In all events, despite your efforts to give the contrary impression, government backbenchers are not part of the government and if Mr Campbell chose he could have left you and Dejong on the backbench free of any impediment, legal or moral.

4. You could have applied to court to substitute other persons for the named plaintiffs – in fact I would suggest this is the very case those rules contemplate.

5. The Liberal Party of BC, which was presumably financing the case, could have agreed to finance, to the extent they would have financed the individuals, Chief Fountain and the dissident Nisga’a who were seduced into joining your case in the first place by your presence in it.

In conclusion, Mr Attorney, if you and the Campbell government had the will you could have continued the case in one of several ways. You chose not to and now cloak yourself in the sanctimonious clap trap that you would be breaking the law by keeping your word. You have betrayed a fundamental commitment you made to the public of British Columbia and you have deserted your allies.

I smell a rat – and I think that rat’s from Ottawa wearing Liberal red. After all, as Gertrude Stein would surely have said, " a Liberal is a Liberal is a Liberal."