Vancouver Courier
for February 15, 1998

Politicians are notoriously unable to foresee the inevitable results of their actions. When the politicians are in fact Supreme Court of Canada judges acting as politicians, that inability has catastrophic consequences.

The Supreme Court has demonstrated, since 1982 when Pierre Trudeau gave us the Charter of Rights and Freedoms, a remarkable ability to avoid making legal judgments substituting therefor social engineering on a grand scale. Moreover, when anyone challenges their right to do so they ponder the matter gravely then decide, surprise! that they indeed do have the right to tell us how to govern ourselves.

It's no use hoping parliament will trim their sails. It's so controlled by the Prime Minister, who after all appoints the judges, that it daren't even murmur at the severe ongoing incursions into their supremacy. Moreover, if they do dare legislate in a way which offends the Supreme Court, the judges find reasons to nullify parliament's decision.

Why this outburst?

Because with an inevitability far greater than the Titanic hitting that iceberg, the Supreme Court of Canada in the Delgamuukw case will surely set the entire land ownership system in Canada on its ear.

The decision wasn't based on any precedent in Canada or indeed in any other country nor upon the writings of great legal scholars, but for the most part upon sentimental guilt trips of left wing, professorial dreamers. To the extent the judges relied on legal reasoning it was their own extra judicial pronouncements in lawyers' trade papers.

Last Tuesday I had the privilege of hearing my old friend and colleague Mel Smith QC, author of the best selling Our Home or Native Land speak to the Vancouver Board of Trade. It was a sobering 40 minutes as Mel spelled out what Aboriginal title, as yet inexactly defined, will certainly mean. Without wishing to repeat Mel's speech, suffice it to say that there's a reason why Native leaders have suddenly acted like they're cock of the walk. They are. They have the hammer. And here is the really hard part to take.

The federal government, contrary to their clear constitutional duty, for decades ignored native land claims in B.C. Now, God help us, they're the only hope British Columbia has to maintain any sort of control over its own land mass. The federal government, of which the Supreme Court is part - indeed arguably the strongest part - must now be looked to by ordinary British Columbians for a way out of the mess they've got us in.

The decision, by nine aging lawyers, seven of whom come from outside B.C., all of whom must live within 25 miles of Ottawa, was made in a vacuum where no evidence of the social, political, demographic or economic realities in British Columbia was considered. Yet the anecdotal, oral evidence by native elders of native title, the stuff of legends if not myths and the rawest possible hearsay, was and must hereafter be accepted without question!

Read the decision. Get Mel's book, Call the Board of Trade for a copy of his speech.

And consider what must inevitably happen, barring a miraculous recovery of political vigor by the federal government, which doesn't give a damn any way because, after all, it's mostly happening in B.C.

Starting very soon, huge tracts of land in British Columbia will no longer be under the control of Victoria even though the land is presently owned by the Crown. Forest leases will be nullified; roads will be closed or tolled; rights of way and easements will be canceled or subject to negotiations with native bands; mining rights will be tossed out as will grazing leases, fishing and hunting camp licenses; fishing, both sports and commercial will be subject not to the law of the land but the law of the tribe. The list goes on.

It's not an exaggeration to say that unless some courageous action is taken forthwith, British Columbia will shortly be economically ruined.

There's more. These tracts of land will be under the exclusive control of Indian Bands, often under hereditary leadership, which will determine what if any rights non natives have on these lands. If the proposed Nisga'a settlement is any guide, non band members will certainly not have political or property rights.

What will this amount to?

Well, the best examples I can think of where ownership of land and the rights of residents thereon depended upon race was in apartheid South Africa. They were called native homelands and were rightly condemned by decent people, including the Canadian Government and our courts, as racist.

True, in South Africa, the motive was appalling whereas the motive of Canadian "higher purpose persons" is noble as hell.

But the results are the same. The right to own and live on property, to vote or even be in the area will depend upon one factor - race.

Welcome to British Columbia, the land of 1600 native homelands, where all rights depend not only upon being of the correct race, but the right clan as well.

Makes you sort of proud to live where the Rule of Law prevails, doesn't it?