Subject: Nanoose decisionNO (Fogal)
Date: Wed, 22 Sep 1999 044249 -0500 (CDT)
From: "Roy L. Beavers"
To: emfguru
--------------------------------------------------
......For our many Canadian readers...... (Not EMF related, but
the "press" in Canada is not reporting this -- as the press is not
reporting EMF issue in U.S. -- so allow me to give some encouragement
to a small group of Canadians who are fighting the same battle "we"
are.).....
Roy Beavers (EMFguru)......
rbeavers@llion.org.......
.....It is better to light a single candle than to curse the darkness.....
EMF-L web-site can be found at:
EMF-L archives can be found at:
..................PEOPLE ARE MORE IMPORTANT THAN PROFITS..................
---------- Forwarded message ----------
Date: Tue, 21 Sep 1999 23:47:45 -0700
From: Connie Fogal
To: synaxis@new-ostrog.org
Subject: Nanoose decision:NO
RE NANOOSE COURT ACTION IN BCSC SEPTEMBER 21,1999 NO: A992161
The Human Rights Institute of Canada, Archbishop Lazar Puhalo of the
Ukrainian Orthodox Archdiocese of Canada, Citizens Concerned About Free
Trade, Rose-Marie Larsson, Defence of Canadian Liberty Committee, and
Constance Fogal were in B.C. Supreme Court September 21,1999 to hear
judgement on their application to set aside the transfer of the Nanoose Bay
lands from BC to the federal government.
The good news: once again the court held that we , the citizens have
standing, i.e. the right to be in court to make the challenge.
The bad news: the Court held that it is not possible to get an injunction
against the Crown; that to do so is prohibited by the Crown Proceedings
Act. The Court referred to 3 cases that followed this principle of law,
including the Delgam Uukw case. As a result the judge dismissed our
application.
The good news: The Court did not order costs against us today. It ordered
costs in the cause.
The bad news : The final Court could order costs against us for this
application.
The good news: Our lawyers have already tonight researched the question of
this technical reason for dismissing us and have found case law that says
such a technicality does NOT apply in constitutional cases where the Crown
has acted unlawfully. The judge is wrong in law.
English translation of all of this: Mr Justice Bauman dismissed our case on
a technicality saying there is law that says you cannot get an injunction
against the government. Our lawyers have found other case law that says ,
yes we can in cases based on the Canadian constitution where the
government has acted unlawfully; i.e., contrary to our constitution.
Our fundamental case is that the federal government acted unlawfully in
this expropriation; it did what our Constitution says it cannot do.
This means we have grounds to appeal this interim decision of Bauman, J.
Where does this leave us?
Still in the trenches.
Before we even get to court on the fundamental issue, the core of the
case, we can take another step to appeal this decision of Bauman.
Why should we appeal? Why not give up and go away?
Because no one else is going to stand up for us. Because what the federal
government is doing is wrong. Because the direction the world has taken is
harmful. Because the ease with which the federal government is throwing
away our rights should not go unchallenged. Because no one else is going
to do the fight for us.
We are taking on the whole apparatus of the state in this kind of a case,
just like we are doing in our lawsuit against the MAI. (We await a hearing
date on our appeal in our MAI case). Indeed we are taking on the whole
apparatus of the real government , the unelected government that dictates
to our elected government. It is not going to be easy. It has not been
easy. It will not get easier.
Why not give up the judicial arm of this struggle and go back to the
political arm?
There is no political party currently elected that is supporting our
Nanoose lawsuit. We have been in two courts to try to get an injunction:
The federal court on August 30th 1999, the BCSC on September 17,1999. Not
one Member of Parliament nor Member of the Legislative assembly showed up
in court to stand beside us. Not one has even sent a message of support.
NOT FROM ANY PARTY.
The BC provincial government only issued the first starting papers, (the
writ), which means nothing without the second set of papers, (the
statement of claim). The province has one whole year to sit on their
first papers and do nothing.
The fed lawyers tried to use the fact the BC government writ exists to
throw us out of court. They did not succeed on that point. We have not
been thrown out of court, i.e., our basic case is still before the court
and will continue through the various steps. (These applications were
interim applications, i.e applications to get an order to tide us over
until the full case can be heard. We were not able to get interim
injunctions, but that does not affect the hearing of the full case finally.
And we have filed our appeal in the federal court over the federal
court refusal of an injunction there. We can appeal this BCSC interim
order for rejecting an injunction there.)
Why bother? Because it matters.
We can be cynical, discouraged, angry. We can give up and retire to the
cabbage patch and await the cabbage moths.
Or we can hunker down, put our heads into the wind, and keep going. We
still have lots of room to manoeuvre.
La lutte continue. Riria! Riria!
Onward!
Connie Fogal
DEFENCE of CANADIAN LIBERTY COMMITTEE/LE COMITÉ de la LIBERTÉ CANADIENNE
C/0 CONSTANCE FOGAL LAW OFFICE, #401 -207 West Hastings St., Vancouver,
B.C. V6B1H7
Tel: (604)687-0588; fax: (604) 872 -1504 or (604) 688-0550;cellular(604)
202 7334;
E-MAIL cfogal@netcom.ca; www.canadianliberty.bc.ca
“The constitution of Canada does not belong either to Parliament, or to the
Legislatures; it belongs to the country and it is there that the citizens
of the country will find the protection of the rights to which they are
entitled” Supreme Court of Canada A.G. of Nova Scotia and A.G. of Canada,
S.C.R. 1951 pp 32
Archive provided courtesy of WaveGuide, http://www.wave-guide.org
Reprinted with permission of Roy Beavers, http://www.emfguru.com