The Written Word
for March 22, 2000

The Victoria Times/Colonist did an extraordinary editorial today criticizing former Supreme Court Justice Bud Estey, and by extension, former Justice Bill McIntyre for speaking out on the Nisga’a treaty. The theme of the editorial was that both the legislature and the House of Commons have spoken and that should end the matter. A more puerile approach it’s difficult to imagine. Never mind that in BC a government elected by less than 40% of the voters and at about 20% in the polls rammed the treaty through. Let’s deal with the legal position and why the two former judges have spoken out.

From the outset there has been a legal challenge. Constitutional expert Mel Smith, in a legal opinion in July of 1998 raised the question of the treaty’s constitutionality. This opinion was widely circulated and spawned a lawsuit by the Provincial Liberal Party and the Fisheries Survival Coalition which is ongoing. I, amongst many, raised this issue over and over publicly and demanded that the government do the sensible thing and test the constitutionality of the treaty before passing it. This suggestion is simple common sense – as a business man with a project that might attract an adverse tax ruling would do, the government ought to have sought a court declaration before getting started. Which is something they clearly are entitled to do. This is what Pierre Trudeau did before patriating the constitution and what Jean Chretien did before bringing forward his "clarity" bill, now before the Commons.

The reason that Mr Estey and Mr McIntyre got involved is simple – this issue as with most issues happening in BC simply don’t get any sort of airing let alone a proper one in the eastern dominated media.

The matter now arises because the bill has reached the Senate which, for all its failings, does tend to listen better than does the House of Commons. That’s probably because they don’t have to worry about re-election.

In any event, there being hearings, why shouldn’t Messrs Estey and McIntyre have their say? What’s the Times-Colonist afraid of - the truth? Which truth is, as Mel Smith and others have been saying all along, that the treaty is unconstitutional in that the Province and Ottawa purport to divest themselves of powers under the constitution without amending the constitution.

Frankly, late in the day though it is, I think that we should thank God that this matter is finally being raised.