Vancouver Courier
for August 5, 1998

Let's take a stroll through the maze of constitutional flak flying about the Nisga'a deal and see where it takes us.

I've read the Attorney-General's legal opinion which, surprise! surprise! holds that the agreement doesn't require a referendum. It would be most inconvenient for the NDP government if it did and it certainly wouldn't please Glen Clark who happens to be the A-G's boss, would it?

Peter Hogg, a Toronto academic, who has previously taken the aboriginal side in writings for the Canadian Bar Review, says that Section 35 of the Constitution automatically approves any treaties so there is no need for any further formality.

Melvin Smith, QC, (I admit my biases - he was my mentor and fellow warrior in countless constitutional struggles) in an opinion for the Opposition leader Gordon Campbell, says that the Nisga'a Agreement amounts to a very substantial de facto amendment to the Constitution that requires formal approval under the Constituion's Amending formula.

This debate as to whether or not Nisga'a amounts to new constitutional amendments is critical. And the elite will want you not to worry your pretty little heads about it. Just lawyer talk, you know.

Well, folks, how we govern ourselves in this province for all time depends on how this issue is decided.

Always implied, of course, is that you and I are too stupid to understand these things which are therefore better left to union organizers who have never held a real job but have the wisdom which automatically descends upon them from on high when they become premier.

Here is the case, in a nutshell, for saying that Nisga'a does not require a constitutional amendment, thus a provincial referendum. Section 35 of the Constitution says "The existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed", which was amended in 1984 to include rights contained in future land claim agreements. Therefore it is said, whatever subject matters are contained in future agreements such as the Nissga'a deal are automatically "constitutionalized" so there's no need for any troubling formalities.

A moment's thought shows how preposterous that notion is. It's to say that if it was agreed that a new aboriginal "nation" would be totally responsible for defence .. or foreign affairs .. or education and health that these abdications of federal and provincial responsibilities would then be automatically constitutionalized under section 35. Clearly what section 35 means is that agreements consistent with the existing constitution, not amendments to it, are "constitutionalized". Otherwise Section 35 operates as an automatic "kick in" clause where whatever future governments might decide will be automatically in the constitution without any need to go through the proper amendment processes.

This is precisely the point Mel Smith makes in his admirably clear and concise opinion of which everyone should have a copy.

He states "a fundamental principle of Canadian federalism is that the totality of legislative power is distributed by the Constitution between the federal parliament and the several provincial legislatures. There is no room for a third order of government having constitutional status, such as native leadership seeks, short of a constitutional amendment."

Mr Smith concludes "the consequence of this [Nisga'a Treaty] constitutes a de facto amendment to the constitution of Canada because it permanently diminishes the powers of the B.C. legislature. He could well have added "to the Parliament of Canada as well."

This is no academic matter. Smith points out that the Nisga'a Treaty would

make Nisga'a laws constitutionally paramount on 17 subject matters and give shared jurisdiction in 16 others. All these changes, if the Attorney-General and Peter Hogg are correct, automatically become part of the constitution!

Constitutions are there to constrain governments and to provide the foundation for the Rule of Law. The most difficult part of drawing a constitution is finding a fair way to amend it - you dare not make it too easy otherwise every government will do as it pleases and you can't make it to difficult otherwise the body politic becomes constipated. Canada spent 115 years finding its amending formula.

But the NDP and Mr Hogg say you needn't trouble yourself with the amending formula if it's an Aboriginal Treaty - no matter what's decided, it was all approved back in 1984 when the present Section 35 was passed "constitutionalizing" all future treaties. No matter that the Nisga'a Treaty diminishes British Columbia's powers under the constitution and in ways no one even thought of in 1984, they're all retroactively tucked tidily into the constitution without any troublesome amending procedures or referenda.

This means, of course, that Ottawa doesn't have to worry about other provinces who have seen federal authority diminished in B.C. Premier Clark doesn't have to trouble himself with obeying provincial legislation requiring a referendum. It was all approved in advance 14 years ago, you see!

And there's even more good news - this is the way it will be for the next 50 settlements to be reached!

How do you like them apples?