We have obtained advice on the legal matters from several sources, including an eminent trade lawyer and constitutional expert. The basic Constitutional issue is that no Federal government can be allowed to remove the rights and responsibilities assigned by the Constitution, either from future Federal governments (the ``Sovereignty" issue) or from subordinate governments, such as those of the Provinces (the ``Federalism" issue). Both cases are strong, but we will see that the second, the Federalism case, is easier to pursue at this moment and can lead to more immediate action (perhaps preventing the MAI's being signed by Canada).
This case concerns the division of powers between Federal and Provincial (or other subordinate) governments, and turns on a finding that the former cannot by foreign treaty remove from Provinces their rights and responsibilities (Privy Council, 1937). But the MAI consists very largely of undertakings to forego government actions and regulations on matters which, in Canada, fall under Provincial jurisdiction. (These matters are discussed more fully in a summary available from PAMAI.) The case is immeasurably stronger than a similar case against NAFTA would have been, because it concerns investment (which resides within the Province) rather than trade (which is largely a Federal matter).
Here's the wrinkle: although any citizen could eventually launch a case along these lines, it could be done most effectively by Provincial governments. In particular, an ordinary citizen or group will have difficulty in obtaining ``standing" in our courts until there is a final, signed, agreement against which to make a claim. This difficulty can be side-stepped by a Provincial government, however, because any of them can require a ruling from its Court of Appeal, by way of `reference', even on the draft treaty! This would bring the MAI before the courts immediately; it could become possible to seek an injunction to stop the signing or ratification of the MAI pending the outcome. Other groups could seek to ``intervene" in such a case. It would also serve as an important public educational device.
Some governments have already expressed reservations. British Columbia has made repeated strongly critical public statements and even threatened non-compliance; B.C. is probably the most likely candidate to challenge, and is known to be examining the legal option already. The Prince Edward Island and Yukon legislatures have recently passed resolutions expressing concerns and calling on the Federal Government to cease action toward the MAI pending full country-wide consultations. The Saskatchewan Premier has also recently made critical statements about the prospect of the MAI.
PLEASE ACT QUICKLY!
2. CONTRIBUTE FINANCIAL SUPPORT:
The preparation of effective legal action costs money. The bulk of the preparatory work is being organized by a Vancouver group, the ``Defence of Canadian Liberty Committee", centred around a well-known lawyer named Constance Fogal. Much work has been done voluntarily, but they need funds urgently to complete a legal analysis of the questions of standing, intervenor status, etc., and to engage experts to prepare the substantive case. This will prepare them to cooperate with the B.C. Government (or another), important if the case is to be launched on the short time-scale proposed, and/or to intervene in such a case, or to carry the case themselves later if the Provinces fail to act. They NEED our support.
PLEASE ACT QUICKLY!
Send a financial contribution, made out to the Defence of Liberty Fund,
Defence of Canadian Liberty Committee,
c/o Constance Fogal Law Office,
\#401, 207 West Hastings Street,
Vancouver, B.C. V6B 1H7.
Information on PAMAI:
People Against the MAI brings together, along with many independent concerned citizens, members of: Science for Peace, Citizens Concerned About Free Trade (CCAFT), The Council of Canadians (COC), Ontario Public Interest Research Group (OPIRG), Committee on Monetary and Economic Reform (COMER), MAI-Not, Veterans Against Nuclear Arms (VANA), Canadian Peace Alliance (CPA), Unitarian Social Justice Committee, Citizens concerned About Violence in Entertainment (C-CAVE), and others.