Vancouver Province
for March 24, 2000

So let’s say you’re a business person. Successful. Lots of people work for you with their futures invested in the your decisions. Along comes a big opportunity that seems to be just right for your company and all who depend on it but there are major tax implications which could ruin everything. What do you do next?

Well, if you’re like the people who run this Province you just barge ahead – as with the Fastcat ferries - and do your "due diligence" after the fact.

If, on the other hand, you’re prudent, before you make a move you get a an advance tax ruling. May cost you a bit of money and it may even delay things a bit – but you know that doing "due diligence" is your duty not only to yourself and your own interests but to all who depend upon your decision. It’s just good planning.

This week two distinguished former members of the Supreme Court of Canada, the Honourable Willard (Bud) Estey and the Honourable William McIntyre, the latter from this province, declared that in their view the Nisga’a Treaty is unconstitutional. And it suddenly became a big story. And the treaty’s supporters act as if they had been blindsided.

Well, folks, I’ve got news for the NDP. They knew all along that this would happen. Melvin H. Smith, QC, Canada’s most knowledgeable constitutional expert, did a paper for the BC Liberal Party in July 1998, which was made public. In Smith’s firm opinion, passing the Nisga’a treaty required a constitutional amendment and that this meant unanimous consent of the Provinces and Ottawa. If he was right, of course, it would require a referendum on the matter be put to the people of B.C. The NDP had a contrary opinion from staff and from a law professor from Ontario but the point is, surely, that long before this deal was signed or went to the Legislature the NDP knew that there was a very serious constitutional issue involved. There was, as the lawyers say, a triable issue.

Shortly thereafter the BC Liberal Party and the Fisheries Survival Coalition took the government to court on this very point. And for what it’s worth, I constantly nagged the BC government to seek a court ruling before going further and for my trouble was characterized as a racist.

The point is not complicated – even the NDP ought to be able to understand it. The powers to govern this country are outlined in the Constitution Act and are divided between Ottawa under Section 91 and the provinces under Section 92. The Supreme Court of Canada has already ruled that the entire spectrum of power is granted under these sections and that there is no governing room left.

Well, the Nisga’a treaty purports to take powers away both from the federal government and the Province of British Columbia and grant them to Nisga’a. Mel Smith says – and for what it matters I thoroughly agree – that this cannot happen except by amending the division of powers sections in the Canadian Constitution requiring the unanimous consent of the provinces and Ottawa.

Over and over I bellowed this at the NDP nit wits in Victoria. I was not saying they had to agree with Mel Smith, only that before they went any further they ought to be like the prudent businessman and get a court ruling. Just like Pierre Trudeau did before he patriated the constitution in 1982. Just as Jean Chretien more recently did over the right of Quebec to secede.

But no. Glen Clark knew best and, even though the stakes were enormous, there was no one in the caucus or cabinet with the jam to make him see reason. Glen Clark and the NDP are not big on "due diligence."

Look where we are now. If Messrs Estey and McIntyre are right – and unless the Supreme Court of Canada plays social worker not interpreters of the law they are right – then settlement of native claims will be set back many years, perhaps decades.

Of all the damn fool things these half wits have done over the past nine years – and there have been some doozies – this one makes all the rest pale into insignificance. Glen Clark knew best - and none of his pals had the guts to make him pause and make sure of his footing before he charged ahead.