Financial Post
for August 21, 1998

It's hard to report on B.C. these days and avoid the Nisga'a Treaty. For those recently arrived from the Falkland Islands, this represents a deal cut between the feds, the province and the Nisga'a people setting up an aboriginal "nation" which, according to Premier Glen Clark a scant few weeks ago, was a public relations no brainer - the public would love it. That, by far, was the biggest miscalculation of Clark's career.

The NDP are slow learners - very slow learners. After the Charlottetown Referendum of 1992 the party had a glittering conversion like that of Saul on the road to Damascus. Where the day before they all wore "Yes" buttons into the legislature they next day were saying "who me vote 'yes'?, you must be joking!"

From a party of indifference to matters constitutional they strode to the cutting edge of the "I Am A British Columbian" league - I still have the bruises from being elbowed out of the front row! Suddenly Glen Clark was Captain B.C. and his constitutional minister, the cerebral constitutional professor, Andrew Petter, had become a soulmate of those of us who had fought Meech and Charlottetown. Forgotten were their enthusiastic endorsement of those very same deals.

In the legislaturemotion sort of endorsing the Calgary Declaration (only tepidly supported by Clark and Petter at the convention itself) great pains were taken to show that there was no consent, express or implied, to any constitutional amendments. Moreover, whenever asked (and often when he wasn't), the premier enthusiastically endorsed the requirement in B.C. for a referendum before passing any constitutional amendment.

The Nisga'a agreement provides for a referendum - trouble is, only for Nisga'a. The rest of us are too stupid to understand - now, where have we heard that before? And herein lies the cause of Mr Clark's and the NDP's galloping political dry rot.

There are plenty of issues here, not the least of which is money - lots of it and for evermore. But the real issues are three - protection of non native rights, an aboriginal only, hence race based, fishery, and the constitution.

The proponents say non native rights are protected. In fact, they're not. The very best one could say is that the Nisga'a might [emphasis] create a school board and either allow non Nisga'a vote for a non Nisga'a member or the Nisga'a might (emphasis) appoint one. (That's not racism?). Or they might (emphasis) do something else.

The Nisga'a fishery is for Nisga'a only. Period. Supporters try to find judicial authority for this utterly racial abomination but there is none unless, like the Mulroney government, you utterly misread Sparrow (italics) and do precisely the opposite of what the court decided.

Despite what the B.C. Attorney-General says, the fact is that the powers of the Province under section 92 of the Constitution Act are dramatically altered. According to noted Constitutional expert Melvin Smith QC, section 35 of the Constitution cannot be read to permit this; this is a constitutional amendment and therefore can only be effected by proper constitutional process (Section 52 of the Constitution Act) and to the extend British Columbia's consent is required, after a referendum.

What's happened takes one back to yesteryear. Mulroney thought Charlottetown was a self dunker because the people didn't care about this sort of thing - or at least they'd never understand it so would trust their betters. In the result, Mulroney's gone and so is his party.

Glen Clark, reading the usual polls from the usual suspects which never ask the right questions, was sure that the public would go along with their betters. They were too dumb to ask questions. Besides, if any did, all you had to do was call them racists.

Well it hasn't quite worked out that way. It all started with a signing ceremony starring the premier before the nation's TV cameras and it's been all downhill for Glen Clark ever since. Voices have been raised and the racist card's been played. But no one's buying that argument. British Columbians are not racists even if Glen Clark says they are. As with Charlottetown, they're reading the document, asking questions, and getting no answers.

Clark may well cram Nisga'a through his tame legislature without a referendum. But the people of British Columbia, liberated as they were by the 1992 referendum, won't stand for it.

Glen Clark and the NDP will pay - exactly the same price Kim Campbell and the Tories paid for Charlottetown.