My name is Ted Hayes and I live in North Saanich. I was born and raised
in
British Columbia
although I have lived and travelled elsewhere. I am a psychiatric nurse
and
a social scientist.
My concern is with the unwarranted intrusion by the federal government
into
the legitimate
affairs of this province. I am here because I cannot let this hearing
go by
without voicing my
objection.
My objections extend to both the purpose and process of the federal
government's expropriation.
On August 3, 1999, I received by registered mail a Notice to Objectors
for
this expropriation
hearing. By that time, the Nanaimo hearings had already finished and
the
Vancouver hearings
had already begun.
As a Vancouver Islander, I object that I must travel to Vancouver in
order
to register my
opinion. The time required for my travel is considerably longer and
more
inconvenient than
travel to Nanaimo. So, in addition to having no time to prepare, I
am now
also unnecessarily
placed in the position of having to waste much of a day simply travelling
back and forth to
Vancouver. And the reason, I am told, is that there was "a processing
error" which caused me to
be notified of the hearings after they had begun. This requirement
for
adequate notice has been
set out in Section 8 of the Expropriation Act. The failure of the federal
government to give
adequate notice is not saved by Section 6 of the Act which deals only
with
errors in the content
of the notice. These grounds, I believe, are sufficient for this hearing
to
conclude that there has
been a miscarriage of justice. I understand that I am not alone in
my
experience. I believe that at
least 500 other persons were similarly deprived of this right to adequate
notice.
Because I do not find the British Columbia media a reliable source of
information, I rarely buy
newspapers or listen to television or radio commentary. I did not receive
notice of my right to
attend these hearings until I received the Notice to Objectors. Given
that
I have another life that
is not associated with these hearings and given that, in addition to
attending the hearings, I must
also do the necessary background research, I believe that the late
notice I
received has seriously
undermined my right to properly represent my opinion. I have done what
I
could, but there are
many areas in which I more detailed research would have strengthened
my
case. I would like to
have done more research on the American connection to Nanoose Bay.
There
are details of
some historical and contemporary incidents with the United States which
I
would have liked to
have researched further. There is an array of constitutional material
that
I would have liked to
have examined. But I could not. I could not because the federal government
in its haste failed to
give me decent notice of my right to attend these hearings.
In its Notice of Intention to Expropriate, the federal government has
indicated its purpose for
expropriation as "a purpose related to the safety or security of Canada
or
a state allied or
associated with Canada and it would not be in the public interest further
to indicate the
purpose". This purpose is specifically defined in Section 5(3) of the
Expropriation Act. That
Section may be used for only one purpose, that is, to protect our national
security. Therefore, the
federal government is committing itself to a single justification for
expropriation, that is, the
purpose of national defence. If it can be shown that the action would
not
be in the interests of
national defence, then the expropriation may not proceed.
Section 91(8) of the Constitution Act 1867 establishes the powers of
the
federal government.
The Act is quite clear that "Militia, Military and Naval Service, and
Defence" are the legislative
prerogative of the federal government. On the other hand, Section 92(13)
of
the Act gives
responsibility to the Province for "Property and Civil Rights". Section
92(5) also gives the
Province authority over "the management and sale of public lands belonging
to the Province".
The federal government's intention to expropriate the Nanoose site
would
appear to conflict
with Province's authority over property. Now, it might be argued that
the
greatest national
interest is national security since, without national security, the
nation
and the provinces might
cease to exist. For that reason, the federal government might be justified
in claiming that its right
to legislate national security is greater than the Province's right
to
legislate property rights. I
would like to address that issue.
W.P.M. Kennedy in his book, Constitution of Canada 1534-1937, (1) states
that "It does not
invalidate a federal Act if it interferes with the operation of a
provincial Act, provided that it is
not substantial legislation on a matter belonging to the exclusive
jurisdiction of the province."
However, the federal Expropriation Act does enter into an area of
provincial jurisdiction.
Indeed, the Province has its own Expropriation Act. And, while Kennedy
also
refers to the
preference of the courts to limit the generality of Section 92(13)
of the
Constitution Act 1867(2),
he does so only insofar as it relates to "civil rights". Property rights
would appear to remain the
exclusive preserve of the Province as does the management and sale
of crown
lands. In other
words, while the federal government might have the right to legislate
on
matters of national
defence, that right would most certainly conflict with the provincial
right
to legislate on
property.
Now, if the federal government were expropriating the Nanoose site
exclusively for its own
military purposes, then the constitutional conflict might be justified
under Section 91(8) of the
Constitution Act 1867. The Government of Canada contends that "The
seabed
is being
expropriated for the purposes of
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national defence"(3). But that does not appear to be the real
reason. Of the six documents that the federal government has reproduced
on its Nanoose Bay
web site (see Appendix I), one, entitled Fact Sheet (see Appendix II),
is devoted entirely to the
defence relations with the United States. Another document, entitled
Chronology of Events (see
Appendix III) makes shows that the Nanoose Bay site was established
for use by the Americans.
Indeed, we know that, during the Salmon Treaty dispute, the British
Columbia Government
targeted Nanoose Bay specifically because it was a uniquely American
installation over which
the Province had some authority. The Government of Canada appears never
to have challenged
that assumption and all the evidence available to us would indicate
that
the site is operated for
the benefit of the Americans; there being no satisfactory alternatives
in
Hawaii or California.
If we are to assume that Section 91(8) of the Constitution Act 1867
applies to Canadian
defence, then the question of the federal right to expropriate on the
grounds of national defence
becomes less compelling. In fact, since colonization by the British
and
French, Canadian borders have only ever been attacked or seriously
threatened by one country, to wit, the United States of America.
An historical examination of the American military threats on this country
produces a
remarkably consistent picture of actual and threatened invasion or
annexation. (For historical
references see Appendix IV.)
November 1775 - the Americans, intending to invade
Canada, attacked and
took Montreal.
June 1812 - the Americans declared war on Canada
with a view to
annexing the country.
1842 - the Americans threatened to go to war against
Canada over the
Maine-New
Brunswick border.
1844 - James K. Polk won the American presidency
under the banner,
"Forty-four forty or Fight".
1846 - the Columbia Valley was ceded to the Americans
under the threat of war and the
border was established at the 49th parallel.
1859 - as a result of the so-called 'Pig War', the
Americans annexed
the San Juan Islands from British Columbia.
1896 - the Americans threaten war over ownership
of the Alaska
panhandle and, in 1903,
the British conceded to the Americans all maritime
inlets in the
Panhandle.
Although all these incidents took place a century or more ago, there
is no shortage of such
examples right up into modern times. Only a few years ago, the Americans
sent an American
warship through the Northwest Passage. They did so publicly and
deliberately without
requesting Canadian permission. The purpose of the trip was to establish
American sovereignty
in an area long-recognized and claimed by Canada.
Closer to home, there remains the outstanding dispute over the Dixon
Entrance. The
internationally-recognized border at the Dixon Entrance was established
as
54º 40' in an 1825
treaty with the Russians, yet American oil interests have recently
decided
otherwise. Over the
last few years, the Americans have used threats and force to stake
their
claim on this new
territory.
The Pacific salmon dispute - which gave rise to the present
federal-provincial dispute - is
another such case. The federal government, by its own admission, conceded
British Columbia
fish to American interests in order to buy security for its remaining
stocks - stocks that were
being threatened by the Americans. In other words, they conceded to
American threats.
If there is a defence threat to Canada, then all the evidence suggests
that
the threat comes
exclusively from the Americans. The Russians have never attempted or
threatened to invade
Canada. Indeed, despite the Cold War, the only hostilities ever between
Russia and Canada was
an abortive invasion of Russia by Canada and her allies shortly after
the Russian Revolution.
The Government of Canada will not require the Americans to forego
importation of nuclear
weapons and fuels as a condition of use for the Nanoose Bay site. Such
weapons and fuels are
the most dangerous arms and propellents known to humanity. Yet, the
Government of Canada
appears willing to countenance their importation by a country which
has a long history of
hostility to our own.
The Government of Canada has justified its haste in bringing this
expropriation with its desire to
placate American military interests in the area. In a press release,
the
Honourable Art Eggleton
stated that "The Government of Canada cannot permit itself to be put
in breach of its
international obligations. As such, I have reluctantly asked the Minister
of Public Works and
Government Services to initiate the process of expropriation."(4) In
so
saying, he has admitted
that the issue is not an internal defence matter, but a foreign military
one. An interest by a
foreign military power is not a Canadian defence interest as defined
in the
Constitution Act
1876. (In invoking Section 5(3) of the Expropriation Act, the federal
government has foregone
any constitutional authority it might be afforded by Section 132 of
the
Constitution Act 1867
which gives the federal government responsibility for foreign treaties.)
A
military interest by a
foreign power is even less a Canadian defence interest when it is
considered that the foreign
power in question is one that with a long and recent history of assaults
on
Canadian sovereignty.
In refusing to place any constraints on the fuels or armaments which
that
foreign power brings
into Canada, the Government of Canada may actually be abrogating its
constitutional
responsibilities.
The federal government has stated its intention to expropriate land
which
falls under the
constitutional responsibility of the Government of British Columbia.
It has
claimed its right to
do so under its own constitutional responsibility for defence. However,
the
federal government
has made evident it's view that the Nanoose test site is run primarily
or
completely for the
benefit of a foreign power. As such, it loses any authority it might
otherwise have for military
expropriation. Until and unless this constitutional problem is decided,
this expropriation must
not proceed.
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Obviously, any power the federal government might have to expropriate
seabed that is the
property and constitutional responsibility of the Government of British
Columbia is limited. It is
unlikely, for example, that the federal government would have the authority
to expropriate all the
seabed in British Columbia. The power to expropriate provincial crown
land,
if there is such a
power, is not unrestricted. The Province may well be correct, then,
in
arguing that the federal
government is asking for more land than is necessary for its purposes
or,
more correctly, the
purposes of a foreign power. That limitation must also exist in the
purpose or cause for federal
expropriation as well as the extent of the expropriation.
In making its judgements, the courts have been guided by public opinion
as much as by legal
doctrine. More than 2,000 objections were filed against the Nanoose
Bay
expropriation.(5) Two
thirds of British Columbians are opposed to the Nanoose Bay expropriations,
most of them are
strongly opposed. Two thirds of British Columbians also wish the federal
government to
prohibit nuclear weapons in the area.(6) The decision by British Columbia
to cancel the
Nanoose lease in response to American intransigence on the Salmon Treaty
was endorsed by all
parties in the British Columbia legislature. On April 23, 1992, the
British
Columbia legislature
overwhelmingly endorsed an all-party resolution that declared the province
"a nuclear weapons
free zone".
It would certainly appear that both the provincial legislature and the
general public strongly
hold the opinion that the federal government has no business expropriating
British Columbia
land for a purpose that will not preclude a foreign power from bringing
nuclear arms onto the
site. Both provincial and federal governments have acknowledged the
expropriation decision
was a political decision. Therefore, any recommendations that come
from
this hearing must take
into consideration the political climate in which they are occurring.
It is
evident that the public
and the Opposition stand overwhelmingly with the Province. That is
the
political answer to the
political question. Unless there is a strong and unified demand from
elsewhere in Canada to
outweigh the will of the people of this province, then there is no
other
possible political answer
to this political question. I have been able to discern no such outcry
from
the Canada outside
British Columbia and I must conclude that the federal government must
drop
its plans for
expropriation.
I have presented three separate arguments in objection to the federal
government's expropriation
intentions.
1. The federal government has failed to give me and at least 500
other
persons sufficient notice of
the hearings. As a result of inadequate notice, I have been put to
unnecessary inconvenience.
More importantly, I have been deprived of sufficient time to prepare
my
case on what is
probably the most important expropriation ever undertaken in this province.
2. The federal government has breached its constitutional authority
in
ordering expropriation of
the Nanoose Bay site. And it has also breached its constitutional
responsibility for defence. The
federal government's own documents indicate that its concern to expropriate
is motivated by
other than the defence of Canada as it has claimed. Instead, it is
attempting to expropriate land
for the military benefit of a foreign power. Because the foreign power
is
the only foreign country
to assault the sovereignty of this country and because these assaults
have
continued to occur
over a period of more than two hundred years right up to the present
time,
the government is
failing to live up to its constitutional obligations for the defence
of
Canada. By failing to limit
the weapons and fuel used on Canadian soil by this foreign power, the
Government of Canada
has further failed to live up to its constitutional obligations. Far
from
providing grounds for
overriding the Province's constitutional responsibility for property,
the
federal government has
manifestly shown that it is not living up to its own constitutional
responsibilities for defence of
the country.
3. This intention to expropriate the Nanoose Bay seabed is a political
dispute between Canada and
British Columbia. Both governments acknowledge as much. The federal
government's actions
are aimed at winning a political argument. However, the people and
the entire legislature of
British Columbia support the position of the Province. Other than in
the rarified air of Ottawa,
there appears to be no strong feeling to the contrary from outside
the
province. The political
solution is obvious. The federal government's decision is neither welcome
nor acceptable in this
province nor, it would appear, in any other.
I would respectfully request that the report on this hearing
unconditionally conclude that an
expropriation of the Nanoose Bay seabed is neither constitutionally
nor politically acceptable.
Ted Hayes August 12, 1999
North Saanich
1. W.P.M. Kennedy (Constitution of Canada 1534-1937) Second Edition
pp 443
2. W.P.M. Kennedy ibid pp 437
3. Government of Canada Nanoose Bay Web Site Correcting the Myths July
6,
1999
4. Government of Canada News Release Government of Canada begins expropriation
process
to retain seabed testing site at Nanoose Bay 14 May 1999
5. Government of British Columbia Press Release More than 2,000 Nanoose
objections filed
June 22, 1999
6. Government of British Columbia Press Release 66 per cent want nuclear
warheads
prohibited in Nanoose Bay, 65 per cent oppose expropriation June 17,
1999 |