The Written Word
for October 31, 1999

The excessive power granted the Supreme Court of Canada not only by the Charter of Rights and Freedoms but by reason of Section 35 of the Constitution Act should give us all pause for concern – especially the latter,.

In the Mic Mac case, the court had to decide whether or not two treaties 240 years old gave a right to take lobsters to an Indian tribe. In that treaty the words "fish" or "lobster" were not mentioned … it merely stated than in exchange for protection of the Crown the natives would trade exclusively with the Crown’s agent.

In making the decision the court called upon a professor to help them deal with what the treaty meant. This professor gave exhaustive evidence and the court deliberated. The majority decision, given by Mr Justice Binnie came to the extraordinary conclusion that even though lobsters weren’t mentioned that an exclusive obligation to trade created an exclusive right to anything to be traded! Unbelievable though that may be the learned judge based his decision upon the evidence given by the professor who, upon reading the decision stated that Mr Justice Binnie had got it all wrong … that the minority decision of Madame Justice MacLauchlin was the correct interpretation! So now we have upset the fisheries on the East Coast and, by extension probably to the West Coast, because the majority of the Supreme Court of Canada couldn’t understand the evidence!

But, I hate to tell you, it gets worse. This decision, because it decides an aboriginal right, now is part of the constitution of Canada by reason of Section 35 of the Constitution of Canada which anchors in constitutional cement all aboriginal rights, even those later found to be such by the courts/ So we have a fisheries situation which can only be cured by the consent of both parties or by an amendment to Canada’s constitution!

This is the point continually – and for reasons which escape me deliberately – ignored by the governments of Canada and British Columbia with respect to Nisga’a. The aboriginal self government created by that deal and approved by the BC Legislature will, the moment the Governor-General of Canada puts the seal on it, become part of the constitution of the country and thus, for all intents and purposes, unchangeable forever more.

It may be too late but we had better take a long, hard look at what we’ve done in this country and what we’re going to do in the future. The madness is not just in the Supreme Court of Canada – though there’s enough there to go around – but in our legislatures as well. They are, without bothering to go through the troublesome procedures of a proper amendment process, changing the rules by which we’re governed and, seemingly, without caring a whit.

There is no one of any standing in the community that I’ve heard that would deny basic rights to natives. No one denies the obligation to make things right as best we can late in the 20th century. The need for aboriginal peoples to govern their own affairs, as cities and municipalities do is not seriously questioned anywhere. What we’re doing, however, is sleepwalking to a position where we have created the potential for hundreds of quasi independent states within the country with huge stakes in the resources of the county in no way commensurate with fairness. Those of us who have tried to warn our fellow citizens of this have been called racists for our trouble.

What little consolation it will be to know, in the fullness of time we were right, that knowledge being confirmed by the chaos around us.