Feb 13/98: "Delgamuukw divisive, will sink BC"


Victoria News
February 13, 1998, p. 6
Rafe Mair

[S.I.S.I.S. note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only.
Rafe Mair is a former BC cabinet minister and a former senior partner of Mair, Blair Jensen a powerful interior law firm. He is also the host of an influential highly rated radio - hotline program. He also acts as a constitutional advisor to the BC NDP provincial government.]

Politicians are notoriously unable to foresee the inevitable results of their actions. When Supreme Court of Canada judges act as politicians, that inability has catastrophic consequences. The Supreme Court has demonstrated, since 1982 and the Charter of Rights and Freedoms, a remarkable ability to avoid making legal judgments, substituting instead social engineering on a grand scale. Moreover, when anyone challenges their right to do so they ponder the matter gravely then decide (surprise) they indeed do have the right to tell us how to govern ourselves.

It's no use hoping Parliament will trim their sales. It's so controlled by the prime minister, who after all appoints the judges, that Parliament dare not even murmur at the severe ongoing incursions into their supremacy. Moreover, if they do not dare legislate in a way which offends the court, the judges find reasons to nullify their decision. Why this outburst? Because with an inevitability far greater than the Titanic hitting that iceberg, the Supreme Court, in the Delgamuukw case, will surely set the entire land ownership system in Canada on its ear. The decision wasn't based on any precedent in Canada, or indeed in any other country, nor upon the writing of great legal scholars.

For the most part, it was based upon sentimental guilt trips of left-wing, professorial dreamers. To the extent the judges relied on legal reasoning, it was their own extra judicial pronouncements in lawyers' trade papers. Last Tuesday, I had the privilege of hearing my old friend and colleague Mel Smith, author of the best selling 'Our Home or Native Land,' speak to the Vancouver Board of Trade. It was sobering as Mel spelled out what aboriginal title, as yet inexactly defined, will certainly mean. Without wishing to repeat the speech, suffice it to say there's a reason why native leaders have suddenly acted like they're cock of the walk. They are. They have the hammer. The federal government, of which the Supreme Court is part - indeed arguably the strongest part - must now be looked to for a way out of the mess they've got us in.

The decision by nine aging lawyers, seven of whom come from outside BC. and all of whom must live within 25 miles of Ottawa, was made in a vacuum where no evidence of the social, political, demographic or economic realities of BC was considered. Yet the anecdotal, oral evidence by native elders of native title, the stuff of legends if not myths and the rawest possible hearsay, was and must hereafter be accepted without question! Read the decision. And consider what must inevitably happen, barring a miraculous recovery of political vigor by the federal government which doesn't give a damn anyway because, after all, it's mostly happening in BC.

Starting very soon, huge tracts of land in BC will no longer be under the control of Victoria even though the land is presently owned by the Crown. Forest leases will be nullified; roads will be closed or tolled; rights of way and easements will be canceled or subject to negotiations with native bands; mining rights will be tossed out as will grazing leases, fishing and hunting camp licenses; fishing, both sports and commercial, will be subject not to the law of the land but the law of the tribe. The list goes on. It's not an exaggeration to say that unless some courageous action is taken forthwith, British Columbia will shortly be economically ruined. There's more. These tracts of land will be under the exclusive control of Indian bands, often under hereditary leadership, which will determine what if any rights non-natives have on these lands.

If the proposed Nisga'a settlement is any guide, non-band members will certainly not have political or property rights. What will this amount to? Well, the best examples I can think of where ownership of land and the rights of residents thereon depended upon race was in apartheid South Africa. They were called native homelands and were rightly condemned by decent people, including the Canadian government and our courts, as racist. True, in South Africa the motive was appalling, whereas the motive of Canadian "higher purpose persons" is noble as hell. But the results are the same. The right to own and live on property, to vote, or even be in the area will depend upon one factor - race. Welcome to British Columbia, the land of 1,600 native homelands, where all rights depend not only upon being of the correct race, but the right clan as well. Makes you kind of proud to live where the rule of law prevails, doesn't it?

Letters to Victoria News: vicnews@pinc.com


Full text of December 11, 1997 ruling:

Index of Delgamuukw/Gitksan articles, analysis, and commentary:

Background information on Delgamuukw case:

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