Saturday, June 26, 2004

Why it's good that you're backing fight against gay porn ban

VICTORIA - You're going to be picking up the legal costs for a Vancouver book store's fight to bring banned gay porn into Canada.
And, on balance, you should be pleased.
The B.C. Supreme Court ruled this week that taxpayers should pay Little Sisters Book Emporium's legal costs for the latest round in its battle with Canada Customs. The store wants to challenge the seizure of two "Meatman" comic books and two books on male bondage by Canada Customs.
But the trial would take 12 weeks, and the store has no money. In the past that would have been the end of the matter. The book ban would stand, untested.
But the rules changed last year, That's when the Supreme Court of Canada upheld a ground-breaking B.C. Court of Appeal ruling that government should pick up the legal bills for four Interior native bands battling over forest issues.
The Supreme Court - in an six-three decision - said the First Nations couldn't afford the hugely expensive litigation; they had a reasonable chance of success; and the title rights' issue was of broad importance. Justice demanded that they have their day - or months - in court, and that couldn't happen without public funding.
It was a huge leap beyond any previous ruling on costs, opening the door for other similar funding bids.
And Joe Arvay, acting for Little Sisters, was the first to seize the opportunity.
Little Sisters has no money to pay for the long trial, he said. And the case raises broad issues of public importance that should be heard, Arvay added. Canada Customs' power to ban books has significant implications for Canadians' basic rights to information. When the state has the power to decide what citizens can and can't read, there has to be a right to external review to ensure decisions aren't arbitrary, unreasonable or unlawful.
The only recourse isa court challenge to the government's decision. And without funding, that right is an illusion.
Justice Elizabeth Bennett agreed. "There is a strong public interest at stake, and that is ensuring that government does not interfere with the rights of citizens." (Canada Customs have barred some 65,000 books and other items over the past five years.)
It's a decision that should be applauded.
The courts have always offered a way of addressing issues of public interest, with that role increasing since the introduction of the Charter of Rights and Freedoms.
But common law practise on costs hasn't reflected either the increasing importance of these cases or the rising costs of pursuing them.
University of Victoria law professor Chris Toleffson is co-author of a paper on the issue to be published in the Canadian Bar Review. He notes that the nature of public interest cases means that one side often has limited resources and no prospect of any material benefit even if they do win. And they face a huge risk if they lose, and are ordered to pay costs.
The result is that unless some provisions around costs are made by the courts, then cases involving the public interest - but not financial self-interest - will not be heard. The courts will be for those who can afford them.
Critics shouldn't fear a flood of cases. The test for public funding is still tough. Mrs. Justice Bennett said advance costs should only be awarded in "rare and exceptional circumstances."
And she said she wasn't providing a blank cheque, ordering another hearing on the level of costs. (Although they will likely be more than $150,000.)
There are still concerns. It's always risky when neither side in a legal dispute is spending their own money. And it's fair to worry about the constant trend to longer, more costly court cases - why, for example, a 12-week trial is necessary in this case.
But those concerns aside, this ruling is a step forward.
It's recognizes that the courts have an important role in protecting our rights. And it acknowledges that access to justice - especially on issues of broad public importance - shouldn't be reserved for governments and others with big bank accounts.
- From the Vancouver Sun

Thursday, June 24, 2004

Luna campaign a weird waste of money

VICTORIA - I'm getting increasingly peeved at the way the federal government is churning through money on the great Luna relocation project.
Basically, I don't buy any of it. I don't buy that Luna is such a serious threat. I don't buy that there's a way to assess the chances of successfully hooking him up with his pod again. And I don't buy the idea that it it makes sense to spend more than $500,000 on moving one whale.
Luna is an Orca that left its pod and has spent the last three years hanging around Gold River. Note that fact - three years.
Sure, he's been a nuisance to boaters from time to time. Luna is social, and when an 1,800-kg whale decides to nuzzle up to your boat, things can get a little complicated. And the federal department of fisheries and oceans says he's surfaced near landing float planes.
So everybody needs to be careful; there's a whale in the water.
But that's hardly a justification to spend a whack of money on a plan to catch the whale, put him on a truck and drive 300 kilometres down Vancouver Island, put him in another pen for a week and then hopes he reunites with his pod. (And if i doesn't, and becomes a nuisance down here, he'll be caught again and sold to an aquarium.)
For the amount being spent on this exercise, the government could hire a full-time minder for the next decade to keep Luna out of harm's way.
Heck, if I was the town of Gold River I'd be contributing to any plan to keep Luna around. The town is in a beautiful setting, and still struggling to cope with the closure of the Bowater mill that provided most of its jobs. A well-regulated whale-watching business could fuel tourism and help keep Luna out of harm's way.
Instead of an opportunity, the whole exercise is turning into a big PR mess.
People around the world have seen First Nations paddlers leading Luna away from the government officials who want to capture him. He's swimming along side them in the shots, as they scratch his back with their paddles. It's like a Beautiful BC commercial and Free Willie rolled into one, with the DFO stepping into the role of the bad guys.
The Mowachaht/Muchalaht First Nation want Luna - or Tsuxiit as they call him - to stick around. Chief Mike Maquinna says his people believe Luna carries the spirit of his father, who died around the same time Luna showed up. Maquinna said his father made a deathbed wish for his spirit to inhabit a killer whale.
I don't question others' beliefs. My seriously ill greatgrandmother died happily after a dream in which she met Jesus and was told everything would be fine.
Anyway the whole effort is starting to look ridiculous. The plan to move Luna is plowing through some $500,000 in donations, and being funded heavily by the DFO on top of that. The amount you're paying is mounting every day.
All that to move a whale that's swimming around, as whales were meant to do.
Doesn't this strike you as patently crazy? It would be a huge feat to raise this amount of money to change the lives of 500 little kids in B.C., giving a bunch of preschoolers a fair chance to make their way in this world. But for a whale, it's a piece of cake.
Maybe, at base, that's the question here. Can one whale be worth this much? Are people really convinced that Luna - likable as he seems - is worth more than scared and lonely kids? (Sorry, you do have to choose. People aren't willing - or perhaps able - to give enough to meet all the needs.)
I'm thinking not. So if Luna is really a genuine threat, then sell it off, or drive it away.
If it's not, leave the creature alone.
Footnote: An interesting bit of irony. The Mowachaht/Muchalaht, championing Luna, are also part of the Nuu-chah-nulth Tribal Council that is seeking the right to hunt grey whales in its treaty talks. It's not an unreasonable position - there are lots of the whales these days. But it won't play all that well.

Tuesday, June 22, 2004

Seven steps to deciding who to vote for

VICTORIA -It's been a grim election campaign.
The issues have been small, and negative. No party has come close to offering an inspiring vision for Canada, or raising a defining issue that it is prepared to stake its future on.
But the parties are different. You should vote. So here's seven things to consider if you're having trouble deciding how to vote on Monday.
First, forget most of the issues the parties raise in an attempt to make the other guy look bad. Paul Martin is not any softer on child porn than Stephen Harper, despite the stupid press releases from the Conservative party. Harper is not going to take away women's right to abortion. These are bogus issues.
Second, take a hard look at the details of the Conservative platform, particularly the assumption that taxes can be cut while health and military spending are increased, without any reductions in other areas. Most economists are dubious. Many British Columbians recall that the provincial Liberals made similar claims, and a majority of them are dissatisfied with the results. Conservatives say they won't have to cut other programs, just keep the rate of spending increases down. It's a claim that demands a very hard look. (That's especially true because of the vagueness of the Conservative platform.)
Third, take a similar look at Martin's plans. How credible can it be that a leader who chopped health care spending has now suddenly discovered that wait lists are the most important issue facing Canadians? How can a leader who promises to restore democracy blow off Liberal party members in key ridings and appoint his own candidates? And why isn't Martin running on the record of his government - isn't that what we expect from competent political parties seeking re-election?
Fourth, consider your local candidates. An effective MP handling constituent's concerns and working for them in Ottawa is valuable no matter what the party. If you have a candidate you like and respect, then why not pick the person, not the party?
Fifth, get specific. It's a brute to try and sort through the parties' positions on every issue. So pick one that matters to you, and check it out. Base your vote on their ability to reflect your priorities in that critical area. (Party web sites are useful, as are media sites that include overviews of the major issues.)
Sixth, get strategic. Voters have different options in different ridings. In Kelowna the Conservatives are going to win; if you're not in their camp, you can vote for any other party safely. But in Victoria, for example, Liberal David Anderson faces a tighter race according to most observers. Given the closeness of this race nationally, that means that a single Victoria voter could decide the future of Canada. Conservative or Liberal? Minority or majority? It could all be decided by one voter who stays home on Monday, too busy or bored to vote. You can assess the likely outcome in your riding - check out and for insight - and make your vote count.
Seventh, recognize that your vote means money for a party for the next several years. Corporate and union donations have been banned; instead parties that meet a minimum threshold will get $1.75 per vote per year. (Reasonable concept, but too costly - $1 per vote would have been reasonable.) Even if the outcome in your riding is not in doubt, your vote matters. The Green Party, for example, raised about $140,000 in 2002. If they can hold their current level of support, they will get about $1.4 million a year. That's a lot of organizing money.
You should vote. It's a cliche, but people did die - and are dying today - over the right. Practically, our collective decisions are better than choices made by just a few of us.
And surely, following the seven-step program, you can find a reason to head out to vote on Monday.
Footnote: B.C. - and your vote - matter this time. Nationally, the Liberals and Conservatives are each on the brink of forming a minority government. The Election Prediction Project reports that with days left 16 B.C. ridings ae too close to call. The rest of Canada could be watching B.C. to see who will govern

Sunday, June 20, 2004

Harper win means tougher times for BC treaty talks

VICTORIA - A perfect storm is about to slam into First Nations treaty talks.
Things were already getting bumpier in B.C. Add a Conservative election win and the dramatic treaty policy changes likely to follow, and the skies grow decidedly darker. Successful talks look less likely, and the chance of blockades and lawsuits increases.
The prospect of a Conservative government has cranked up fears. The party doesn't mention B.C. treaties in its platform, but expect at least tougher negotiating line.
Or perhaps much more. Tony Penikett is a former Yukon premier, and a senior fellow on First Nations treaty issues at Simon Fraser University. "If there's a Harper government after June 28, that may effectively end treaty negotiations in B.C.," he says.
Mr. Penikett points to the influence of Tom Flanagan, probably Conservative leader Stephen Harper's closest policy advisor. Mr. Flanagan, an academic, is national campaign manager and certain of a senior role in a Harper government.
Mr. Flanagan has strong views on the treaty process and relations with Canada's aboriginal communities. (Mr. Flanagan rejects the First Nations term, arguing Canada's native groups don't qualify as nations.)
Back in 2001 Mr. Flanagan attacked the basic principles of treaty making in B.C. It's impractical to settle treaties by providing land, he said, because the land is already being used by others.
And he said Ottawa should give the treaty process another three years, and then hand the issue to a federal commission to resolve. Parliament - and the B.C. legislature - would approve the settlements, title would be extinguished and everything would be resolved.
It's an appealing but unworkable solution. The legal issue of title is not so easily swept away. And damaging First Nations' protests and pressure campaigns would be inevitable.
Mr. Flanagan has also argued that collective ownership of land by First Nations should be replaced by private ownership to encourage economic growth. Again, it's an interesting idea. But it is considered poisonous by First Nations, who see shared ownership as fundamental to their identity as a people. Give that up, they believe, and it is the end of their culture. (Mr. Flanagan argues for assimilation.)
Conservatives' aboriginal affairs critic John Duncan says he leads the policy development. But the Vancouver Island MP is vague about the party's plans for treaty talks, promising "productive" changes. But Mr. Duncan was a leading critic of the Nisga'a Treaty, objecting to the amount of land and money provided and the self-government provisions. Future agreements should "compensate aboriginals for what the courts recognize as their modest aboriginal entitlement," he says.
Policy debates are fine.
But this is a dangerous time for the Ottawa to lurch in a whole new treaty making direction.
After two years of apparent progress, relations between First Nations and the provincial government are souring. First Nations have found common cause in the Title and Rights Alliance, which is borrowing the proven tactics of the environmental campaigners.
The alliance is already out warning institutional investors about the risks of operating in B.C. until land claims are resolved.Its first "information blockades" on roads and highways will go up as early as the end of this month.
Tthe First Nations' Summit has just voted to support the alliance. And Dave Porter of the Kaska Dene has just been elected to its leadership group. Mr. Porter was a deputy premier in the Yukon NDP government, an aboriginal affairs assistant deputy minister under the B.C. New Democrats and the province's first oil and gas commissioner. He will be a formidable foe, or friend, for government.
All this comes as the BC Treaty Commission operates without a chief commissioner. Miles Richardson resigned to run as a Liberal candidate in Skeena-Bulkely Valley. First Nations and federal and provincial government have to agree on a candidate. It's unlikely the job will be filled before the fall, leaving a critical vacancy, at a difficult time.
B.C. needs treaties. But the process - already shaky - is facing a flood of changes and challenges that will make progress much tougher.
- From the Vancouver Sun