Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 30 (19 December 1980)
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 30 (19 December 1980).
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HOUSE OF COMMONS
Issue No. 30
Friday, December 19, 1980
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the
Constitution of Canada
The document entitled “Proposed Resolution for a
Joint Address to Her Majesty the Queen
respecting the Constitution of Canada” published
by the Government on October 2, 1980
(See back cover)
First Session of the
Thirty-second Parliament, 1980
SPECIAL JOINT COMMITTEE OF
THE SENATE AND OF THE HOUSE
OF COMMONS ON THE CONSTITUTION
Senator Harry Hays, P.C.
Serge Joyal, M.P.
Representing the Senate:
Representing the House of Commons:
Campbell (Miss) (South West Nova)
Joint Clerks of the Committee
Pursuant to S.O. 65(4)(b) of the House of Commons:
On Friday, December 19, 1980:
Mr. Tobin replaced Mr. Gingras;
Mr. Hnatyshyn replaced Mr. Hawkes;
Mr. Fraser replaced Mr. Oberle;
Mr. Benjamin replaced Mr. Lewycky;
Mr. de Jong replaced Mr. Benjamin.
Pursuant to an order of the Senate adopted November 5, 1980:
Senator Bird replaced Senator Rousseau.
MINUTES OF PROCEEDINGS
FRIDAY, DECEMBER 19, 1980
The Special Joint Committee on the Constitution of Canada met this day at 9:35 o’clock a.m., the Joint Chairman, Senator Hays, presiding.
Members of the Committee present:
Representing the Senate: The Honourable Senators Adams. Austin, Bird, Hays, Lapointe, McGrand, Petten, Phillips and Tremblay.
Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Miss Campbell (South West Nova). Messrs, Corbin, de Jong, Epp, Fraser, Hawkes, Hnatyshyn, Irwin, Joyal, Mackasey, McGrath, Nystrom, Oberle and Tobin.
Other Members present: Messrs. Henderson, Manly, Marceau, Mrs. Mitchell, Messrs. Munro (Esquimalt-Saanich), Robinson (Burnaby), Roche, Rose and Waddell.
In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director, From the Research Branch of the Library of Parliament: Messrs. John McDonough, Hugh Finsten and Louis Massicotte, Researchers.
Witness: From the Government of Saskatchewan: Honourable Allan E. Blakeney, Q.C., Premier of Saskatchewan.
The Committee resumed consideration of its Order of Reference from the Senate dated November 3, 1980, and its Order of Reference from the House of Commons dated October 23, 1980, both relating to the document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980, (See Minutes of Proceedings. Thursday, November 6, 1980, Issue No. 1.)
The Honourable Allan E. Blakeney, made a statement and answered questions.
At 11:50 o’clock am. the sitting was suspended.
At 12:05 o’clock pm. the questionning resumed.
At 1:11 o’clock p.m., the Committee adjourned to the call of the Chair.
Joint Clerks of the Committee
(Recorded by Electronic Apparatus)
Friday, December 19, 1980
The Joint Chairman (Senator Hays): Honourable members and honourable Senators we are honoured this morning to have the honourable Allan Blakeney, Premier of Saskatchewan here this morning. I must say I speak on behalf of my Joint Chairman, Mr. loyal and all members of the Committee.
Mr. Premier, we have been quite looking forward to your being here this morning and we are looking forward to hearing your brief with great anticipation. We also welcome your Minister, Mr. Romanow.
You are familiar with the procedure and you may now proceed in any fashion you want. I want you to know that being a Westerner myself and being very familiar with your province that I still think it is the food basket of Canada and its surface has only been scratched.
Honourable Allan Blakeney (Premier of Saskatchewan): Mr. Chairman, monsieur le president, I would like to proceed by presenting a prepared statement and than giving members of the Committee an opportunity to address questions in your usual manner. I believe that copies of our brief and presentation have been circulated and will accordingly be in your hands. If that procedure is satisfactory I will simply start with my statement. From time to time I may call upon my colleague, the Minister of Intergovernmental Affairs, Mr. Romanow either to make a statement or to assist me in replying to one of the perceptive questions which I know will be forthcoming.
The Joint Chairman (Senator Hays): That is quite satisfactory to the Committee.
Mr. Blakeney: Thank you. Ladies and gentlemen, I am here today to place before Parliament the position of the Government of Saskatchewan on the resolution you are considering. I do so with mixed feelings. It is clear that the constitution is an important subject, but it is not clear that it should be dealt with in this way. We are here, after all, because the Government of Canada believes that federal-provincial negotiation, the traditional process of constitutional discussion has failed and must continue to fail. I do not share that belief.
You have before you Saskatchewan’s written submission. Some parts of that submission may be summarized briefly in my remarks and you may wish to refer to the brief itself for a fuller exposition. The brief contains some material under the heading: Canada: A Federal State.
It is not often in the history ofa nation that the fundamental rules of its organization and government are brought into question. That is as it should be. In the normal course of events, as we go about our daily lives, we must be able to have faith in the essential elements of our national existence; our basic political institutions, the fundamental framework of our legal system and the shared values which bind us together.
It is only on rare occasions that basic questions demand examination and debate. I believe that Canada is now at such a juncture.
As we face the present challenge, as we build together for tomorrow, it is important that we remember our past. Nations, like individuals, must build upon what has gone before, must understand their past if they are to shape their future with any success.
In 1867, Canada was created as a federal state. As you know, a federal state has two orders of government; a national government to pursue goals common to all and provincial or state governments to reflect and preserve the distinctive characteristics of the constituent units, the regions.
Now more than ever we need to preserve and strengthen our federal system. We need a strong central government to define and pursue national goals, to manage the national economy, the redistribute wealth among regions and individuals and to promote Canada’s interests abroad. We need strong provincial governments to respond to the distinctive needs, to meet the distinctive challenges and to seize the distinctive opportunities of each province. The rules which govern our federation are in need of adjustment of renewal. But the purpose of renewal should not be to weaken either the federal government or the provinces. It should not be to establish the dominance of either over the other. It should be rather to strike a new balance more useful to contemporary Canadian society. A balance more able to preserve and build the unity of this country. Turning now to constitutional amendment in Canada, in my view unilateral action of the kind proposed is a breach of the well established conventions governing constitutional change in the federal state of Canada. I refer Committee members to the arguments developed in our brief and to appendix A which reviews the history of amendments to the British North America Act. The convention of provincial consent has been formerly acknowledged in a paper on constitutional amendment published by the federal government in 1965, and we have appended that as appendix B. That paper published under the authority of the honourable Guy Favreau, then Minister of Justice, identified four general principles or conventions governing constitutional amendments. These conventions, while not constitutionally binding in any strict sense, had nevertheless come to be recognized and accepted as part of the amendment process.
The fourth and most important principle was, the Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces. Yet now the federal government proposes to act unilaterally in breach of the firmly established constitutional convention. What it proposes may or may not be legally possible. But it cannot be denied that it is constitutionally wrong. It is not consistent with federalism.
Turning now to federal-provincial negotiations, this unilateral federal action interrupts the process of federal-provincial negotiations. Those negotiations have been tough but they have been making progress. I do not intend to review in detail
the history of constitutional discussions over the last four or five years. I want to emphasize though, that by September 1980, after intensive negotiations, Canada’s ll governments had reached a significant measure of consensus on some of the most contentious constitutional issues.
In deciding to proceed unilaterally, the federal government has brought an end to the process of federal-provincial negotiations, at least for the time being. And it has done so, not at a time when these negotiations were hopelessly bogged down, but a time when progress had been made and might have continued.
Turning now to the Saskatchewan approach, I am convinced that constitutional renewal is necessary. Constitutional renewal to be effective however, can be achieved only by the consensus among governments. To reach that consensus will require flexibility and patience. it will require a determined effort to devise a package that accommodates as far as possible the legitimate aspirations of each province and region while maintaining an appropriate balance between the two orders of government.
Canada can work neither as a centralized state nor as 10 principalities. One defies our diversity; the other our common goals. Canada can only work as a balanced federation that is united but not uniform, respectful of regional diversity, linguistic duality, cultural pluralism and with a workable and efficient division of powers as part of our constitution sharing fundamental values adhered to by most Canadians.
It is my hope that governments will return soon to the negotiating table to complete the work that has been interrupted, the work of building the new Canada. In the meantime however, we have before us the federal government’s resolutions which seek to patriate and amend the constitution.
Turning now to the resolution and first to the process. Unilateral action strikes at the very heart of Canadian federalism. It defies the partnership upon which Canada is based. The partnership between orders of government to bargain among cultures and regions. As I have already said, such action also defies the constitutional conventions which have for the last 50 years governed the procedures for amending the BNA Act. These conventions, developed for a good reason, responded to the essential requirements of a federal state. They respected the federal-provincial partnership and they ensured that constitutional changes affecting the rights of the provinces would have provincial consent.
Perhaps these conventions were too inflexible. Perhaps we should develop better rules. But surely in a federal state, that is not the prerogative of the central government alone.
I want to make perfectly clear my strenuous objection to the kind of unilateral action which the federal government is undertaking by means of this resolution. it is an action which seeks not only to patriate the constitution but to amend it in ways that go beyond federal jurisdiction, in ways that affect the rights of the provinces and in ways that affect the balance so critical in a federal system.
Now what can be the justification for unilateral action? Many are offered. Most rely upon the failure of governments to reach agreements respecting patriation after repeated attempts since 1927. But 1 need not note for you that the idea of entrenching our charter of rights was not discussed in 1927, even the general idea did not emerge until 40 years later. Some of the provisions of the particular Charter contained in the resolution appeared only last summer. Others were revealed for the first time only two months ago. Clearly many of these provisions have not been subjected to any substantial period of public scrutiny and this is made increasingly clear as group after group while professing support for the general idea of a charter express strong objections to the terms of this Charter which has been so recently sprung upon them.
Similarly, the proposal for an amending formula involving a referendum has not been under discussion for 50 years. Indeed it has not been under discussion for 50 weeks, but barely 50 days. So the 50-year deadlock alone provides no justification for proceeding with this particular package, the terms of which are novel and the implications of which are not fully appreciated. In our federal state, unilateral action of the kind proposed must be condemned. The federal action may or may not be legal. The courts will make that determination but it is clearly corrosive of the basic principles of federalism.
Ladies and gentlemen, Canada is facing troubled times. It is trite to say so and I offer no further evidence. They daily papers contain a litany of our economic and political woes. and they are a subject of debate in the parliamentary fora even contemporaneously. This resolution is compounding our difficulties. There is widespread opposition, fully justified opposition. I say this is certainly so in Saskatchewan. I believe it to be so in Western Canada and poll results indicate that it is probably so elsewhere in Canada. This turmoil is not going to abate, There are just too many forums: this Committee, the House of Commons, the Senate, the Provincial Appeal Courts, the Supreme of Canada, the Parliament of Westminster, its Committees and other public forms which will keep this matter before the public for many months. Every month that this controversy rages, it does harm to Canada. Surely that cannot be denied or questioned or is there any real prospect of this divisive wave being counterbalanced by the unifying enthusiasm flowing from patriation. That might have been the case once, but I do not believe it to be the case now.
What can be done? What should be done? Well, let me make suggestions of what we in Saskatchewan or we of the Saskatchewan government believe your committee can do.
Our first preference is that your Committee recommend that the resolution not be proceeded with and that the parties resume negotiations after a pause for reflection. That was our suggestion in September and we make it again. We believe it would work. We recognize that there are many who believe that this course of action cannot be fruitful. As I understand it, they say that while the unanimity rule applies, and while the provinces consistently want a package of reforms to accompany patriation, it will prove impossible to arrive at any package that is acceptable to all governments. So the argument goes. Now I do not agree with it but I understand it. If the Committee is convinced by that argument or by others that action must be taken without provincial agreement, then I state our second preference.
Our second preference is that your Committee recommend patriation with a simple amending formula because the great majority of Canadians want it and an amending formula because the mere act of patriation gives us a new amending process whether we like it or not. Canadians should know what the new process is by setting it out in a formula. By a simple amending formula, I mean one along the lines of the one that Canadians have been discussing for the last 20 years; The Fulton-Favreau Conferences, the talks leading to the Victoria Charter, the discussions of the last few years. Such formulas have been considered by Canadians and can lay some claim to acceptability.
Now our third preference is for your Committee, if you feel that you must go beyond patriation and an amending formula, is for your Committee to recommend a resolution that is minimal but has some balanced regional appeal. This would include patriation, an amending formula along the lines widely discussed . . .
I will say more about the particular formula later if I may—a provision on official languages, a provision on equalization, a provision on resource ownership and control, and the usual transition and technical provisions. This would contain the essentials, that is patriation and an amending formula, together with things concerning which there is strong regional support and little controversy except controversy of the “it does not go far enough” variety and you will always have that.
If the resolution goes beyond these simple provisions into elaborate amending formulas involving complicated referendums or into a detailed entrenched charter of rights, all matter foreign to Canadian constitutional practice and tradition, and for the most part matters which have not been widely discussed in Canada is clearly impossible to get any broad consensus among Canadians.
Our basic argument then is this. The present process is pulling Canada apart. We say, “Craw back”. If you feel you cannot or should not draw back, then we suggest you recommend a package that has the essentials, patriation and a simple amending formula; has some appeal to each of the regions and avoids elaborate proposals that have not been the subject of
detailed consideration at conferences and general debate among Canadians. In short, we ask that you recommend a resolution that has claim to the broadest possible consensus. In this way you will get the important job of patriation done with the least damage to the fabric of the nation.
Because we believe this and have believed it for some time, our government has been trying by negotiation and persuasion to have the contents of the resolution changed to improve it, to remove what we think are its most glaring inequities, to make it more broadly acceptable to all Canadians.
If the contents of the resolution are substantially improved, we will be in a position to consider acquiescing in the process, even though we clearly object to it, in the interest of getting some agreement and reducing the level of controversy.
If the contents are not substantially improved, we will have no option but to oppose both the process and the contents.
Now, you ask me what are the proposed changes that Saskatchewan would offer.
Since the beginning of October, I have spoken out on the specific improvements which we are proposing. They are based upon three general principles:
1. The substance of the unilateral changes must leave intact the essential features of Canadian federalism;
2. The changes must be accomplished in such a way that unilateral action can never the repeated;
3. The changes must address some of the real concerns of all regions.
Now, let me then review the specific changes we propose.
Resources. Throughout the federal-provincial constitutional talks, resources have been a number one issue for Saskatchewan and for Western Canada generally, and for good reason. In Saskatchewan, for example, resources provide more than a quarter of our provincial government revenues, which are used to finance a broad range of social and economic benefits for Saskatchewan residents resources represent our best hope of providing long-term economic stability and diversity, of iron’ mg out the booms and busts of a very volatile economy resources are the key to Saskatchewan’s growth and prosperity.
If you feel that they have made us wealthy, I invite you to look at the figures for average incomes of Canadians in 1979 and you will find that the average income of Saskatchewan people is below that of British Columbia, below that of Alberta and below that of Ontario and below that of Quebec, you will see that we are not every year below Quebec but it is simply not true that we are somehow riding some bonanza. Even with these resource revenues, we are still only in the mid range.
It is hardly surprising, therefore, that Saskatchewan and Other provinces attach importance to a clarification and confirmation of provincial rights to manage and tax resources.
Now, I want to underline this: rights which we thought we had but that have been called into question by recent decisions of the Supreme Court, rights that we must have confirmed. not so that we can do new and different things, but so that we can continue to do with certainty what we are now doing with great uncertainty.
Governments have made good progress in resolving the complex issues surrounding resources and we concede out of hand that the federal government has a major concern with respect to resources.
In February 1979, we reached near agreement on a so-called best efforts draft, and that is attached in our submission, but the resolution proposed by the federal government ignores resources entirely and has nothing other than patriation itself which addresses the particular needs and aspirations of Western Canadians.
As we understand it, the federal government has now indicated that it is prepared to redress that imbalance and to incorporate a resource section in the resolution. As we understand it, that section will confirm provincial jurisdiction over resource management, admit provinces to the field of indirect taxation of resources and permit provinces to legislate in areas where their legislation might incidentally affect interprovincial trade and resources. This latter is subject to unqualified federal paramountcy in the event of any conflict between federal laws and provincial laws.
What it will not do is permit provinces to pass laws which may incidentally affect international trade. For Saskatchewan, this is crucial. Almost all our resources are sold in world markets. We do not want to take over the federal government’s responsibilities for, international trade policy and any fair review of the policies of our government over the past year will indicate that we have been scrupulous in observing the federal government’s role with respect to all international contacts. But we need to ensure that steps we take to regulate the production of a resource within Saskatchewan will not be struck down by the courts merely because they are seen to affect incidentally international trade, the field that is reserved exclusively to the federal government. I repeat again, we are prepared to see any rights we have in this area subject to unqualified federal paramountcy. If the federal Parliament feels that we are off base, they need only pass a law and our law is inoperative.
We have produced a draft of a resource section in Appendix F which we would recommend to the Committee. It is patterned closely on the best efforts draft of 1979 which, incidentally, was agreed to by the federal government at that time, but we have struck out the compelling national interest test because we understand that the federal government substantially objected to that and although we would clearly prefer it, and we have replaced it by one of unqualified federal paramountcy with respect to both interprovinical and international trade.
In our view, this is a reasonable and responsible compromise proposal and I say again clearly it is not our first choice. We would have preferred the 1979 draft but, by way of compromise, we put forward this proposal.
Leaving resources, I turn now to Part IV of the resolution and I will not comment on the many problems of Part IV. In my judgment, it is clearly a make-weight provision and it will not be used and, therefore, there is not much use in debating it.
I turn now to the amending formula.
The proposed amending formula is the most unacceptable part of the federal resolution, the part which does most serious violence to the basic principles of federalism. Saskatchewan cannot endorse the resolution unless major changes are made in the amending formula.
In a federal state, the procedure for amending the constitution is the most important part of the fundamental law, that I think is self-evident really. The constitution and how you amend it are the most important laws in a federal state, and the most important part of the constitution is how you can amend it.
The amending formula proposed in the resolution is so weighted in favour of the central government, so weighted against the interests of the provinces, that it threatens to destroy the balance that is so crucial to the maintenance of Canada as we know it.
As you know, the resolution offers two methods of amending the constitution of Canada. The first, the legislative alternative, requires, as well as the consent of Parliament, the consent of Quebec and Ontario, the only two provinces which now to heretofore have had 25 per cent of Canada’s population; the consent of two of the four Atlantic provinces with 50 per cent of the region’s population; and the consent of two or more of the four western provinces with 50 per cent of that region’s population. That is what is there now.
As has already been pointed out by others who have appeared before your Committee, the population requirement for the Atlantic Region appears to be unfair to Prince Edward Island, since it makes the support or opposition of that province totally irrelevant to the approval of any amendment, and if the Atlantic people want that changed Saskatchewan would support that, what I might call the PEI change.
However, the formula, even with that change, is not satisfactory. For one thing, it gives, in legal terms, a perpetual veto to two provinces, Ontario and Quebec, irrespective of future shifts in population. By doing so, it lends support to those who attack the process, not only as unilateral but also as clearly aimed at curtailing the influence of the West regardless of its future growth. You may feel that there is paranoia in Western Canada about the efforts of Eastern Canada to restrain the growth in the West. Maybe you will describe it that way, or pick your own description; certainly this is seen as part of it, to give to two provinces a veto in perpetuity regardless of how big or small they may become. This allegation can be refuted by a very simple change.
Saskatchewan prefers and proposed a variation of the formula so that the formula would require, for provincial approval, the consent of a majority of the provinces representing 80 per cent of the population of Canada, which majority must include two or more of the four Atlantic provinces and two or
more of the four Western provinces, representing 50 per cent of the population of the West. That we set out in Appendix G.
The result would be the same for the foreseeable future. It is going to be a long, long time before either Quebec or Ontario has less than 20 per cent of the population of Canada, if ever, but at least it would be seen to be a formula which did not grant a continuing veto based upon history rather than current circumstances.
We put this forward not as an ideal formula, but rather as an improvement over the formula proposed in the resolution, an improvement designed to meet one of the objections being levelled against it. Clearly you will see, therefore, that we are favouring a generally flexible formula for amending the Canadian constitution. Not fluid by any means, but not requiring unanimity on all matters.
We adhere to the Vancouver Formula and we could live with the Vancouver Formula if you people decide upon it. We adhere to it, again, because we are seeking agreement. We have earlier expressed our preference for a legislative formula based upon a variation of the Victoria Charter I, and I have outlined it.
The second proposed method for amending the constitution does not involve the consent of provincial legislatures at all. It employs, instead, the technique of the referendum.
Much has been made of our 50 years of trying to get an amending formula. I searched this 50 years without finding any proposal for a referendum. It is a new proposal which Canadians have had no real opportunity to consider. It is a proposal for which no case has been made.
Our first preference would be for the referendum procedure to be dropped altogether as a means of amending the constitution. If this is not possible, if you people feel, if Canadians generally feel that it is desirable to have a referendum procedure, Saskatchewan must insist, as a mininum, on substantial changes to the referendum alternative currently proposed in the resolution.
As now drafted, a referendum could be used to by-pass provincial legislatures entirely. There is no requirement that the provincial legislatures be consulted or in any way involved in future constitutional changes before a referendum is called. Thus, there could be a situation of an extensive and well-publicized debate in the federal Parliament, little or no debate in provincial legislatures, a well-orchestrated appeal to the public and then a referendum, what I call the “instant referendum”. This clearly undermines the position of democratically elected provincial legislatures.
The instant referendum, as I say, has all the charm of instant mashed potatoes, and it must be changed. I am aware that there are new proposals which would convert this into a “deadlock breaking mechanism” and I will come back to that in a moment.
If we are to adopt this extra parliamentary device for amending our constitution, some important conditions must be met:
1. There must be an opportunity for adequate public debate, in Parliament and in provincial legislatures, on the precise terms of a proposed constitutional change before the public is asked to vote on it. And this is not only a question of the rights of provincial legislatures; I say to you that constitutional amendments are difficult things, the public is entitled to have a full debate on them, not only at distant Ottawa but also in local Charlottetown or local Edmonton, so that the terms and the arguments for and against will permeate before they are asked to vote.
2. There must be some measure of reciprocity as between Parliament and the provincial legislatures in their power to initiate a referendum. The proposed process permits a referendum where provinces fail to agree to a federal proposal for constitutional change. It does not provide for a referendum in the reverse case, where the federal government opposes an amendment endorsed by the provinces. In other words, it is a way to temper the intransigence of provincial legislatures but not the intransigence of Parliament. In our view, appropriate provisions for reciprocal treatment are required to make the referendum a fairer and more balanced instrument.
If the legislatures are asked to defer to the will of the people of Canada on a specific amendment, so should Parliament.
3. The referendum vote must take place within a reasonable and specified time of the amendment’s endorsement by the legislative body commencing the process. Let me put that another way. Parliament passes a resolution and if it is dealt with by provincial legislatures yes or no and suppose the answer is no, then this is going to be a deadlock-breaking mechanism. The referendum should not be able to be called eight years later. There must be some period of time wherein it is said that the referendum must be used, if as a deadlock-breaking mechanism, to break the deadlock, and when that time expires you have to start the process again. It cannot be a sword of Damocles hanging up there.
4. Provision must be made for impartial referendum rules developed and supervised by an appropriate referendum committee. Ln the federal proposal, all the rules respecting referenda are to be solely within federal control, with none of the safeguards which have been established over the years to run federal elections, provincial elections and the like. This clearly requires some revision and we propose a federal-provincial body to establish rules for the referendum.
Attached as Appendices H and l are draft amendments proposed by Saskatchewan dealing with Section 42 and Sec-
tion 46. Section 42 would establish the referendum procedure as a deadlock-breaking mechanism. I take it there is some support for that idea already. It would also permit a referendum to be held in cases where an amendment is endorsed by provincial legislatures but opposed by the federal government, and would create a federal-provincial referendum rules committee, one which has in effect a federal majority but a provincial presence.
I am well aware that federal spokesmen have recently suggested that they are prepared to improve the referendum procedure in some of the ways that we and others have proposed, but as yet we have not seen a detailed proposal and therefore cannot say whether they are acceptable.
If a referendum procedure is to remain, I urge the Committee to recommend specific amendments along the lines which we propose.
Turning now to equalization, we want to see a strengthening of the commitment to the equalization principle. The present Section 31 is inadequate. Last summer all but one of Canada’s governments agreed on the wording of a constitutional provision which would enshrine not only the principle of sharing, but of equalization payments to governments. We hope that this provision is of relative academic interest to Saskatchewan, but we strongly take the view that for the provinces which are the recipients of equalization, that it should be done by payment to governments. We believe the provision could be strengthened and we have attached appropriate wording. I have consulted with some of my provincial colleagues along this line and the proposal which I believe was put forward by Premier Hatfield is very close to what we would find acceptable.
I turn now to the Charter of Rights. May I digress for just a moment on equalization? Canadians do not realize what we have achieved here. When I go abroad I find people saying you people have found a way to collect taxes federally, to use them for services which are operated by provincial governments and administered regionally, and that is something we have not achieved in our country. We should not under-rate what we have achieved by way of equalization payments.
On to the Charter of Rights. Many of you will know that I have opposed, in principle, the constitutional entrenchment of a Charter of Rights. Many of you will know the grounds of my opposition. It would serve no useful purpose to review these arguments now, though they are briefly set out in the written
submission, and in order that my position may be understood. I want to make some qualifications or explanations of it.
I do not object to the constitutional entrenchment of French and English language rights. The right of use French or English or the rights to receive some government services in either of these languages is not, after all, a right we claim as humans. It is a right we claim as Canadians. It is an essential fact of Canada, an essential element of the Confederation bargain and as such is an obvious candidate for inclusion in the constitution.
In endorsing the recognition of French and English as Canada’s two official languages I want to emphasize the importance we in Saskatchewan attach to Canada’s cultural diversity. Two languages, cultural diversity. Saskatchewan is the only province in which those of British and French origin combined form less than half of the population. That makes us particularly conscious of our multicultural heritage, and it gives us a strong commitment to policies and programs that will ensure the continued vitality of languages and cultures other than French and English, all the while agreeing that this is a country of two official languages.
We ought to be examining some constitutional recognition of multiculturalism, perhaps in a preamble, if we are going to have a Charter of Rights, as discussed last summer, or perhaps in some other section. In any case, it should be the subject of early discussion in the next round of negotiations, and I am not now talking about what is included in this round.
Our brief makes some specific technical points with respect to Section 1, Section 7 and Section 15 of the Charter and I would refer Committee members to those parts of the submission.
On Section 15 let me mention one particular concern about the possible impact of that section, and you will recall it as the nondiscrimination section, on the system of separate schools which exits in Saskatchewan and a good number of other provinces.
On the face of it, the use of public funds to support denominational schools is a clear violation of Section 15 which prohibits discrimination on the basis of religion, since you are only going to do it for one religion and not all of them.
Are separate schools saved by other sections of the Charter or by other constitutional provisions? Perhaps so, perhaps not. What about the discriminatory hiring and staffing practices and enrollment criteria which are part and parcel ofa religious school system? Will they be jeopardized by the language of Section 15? Well, our lawyers have looked at this and they say
on balance perhaps not but it is far from clear. And while I fully agree that there are other provisions in the US. Constitution, and important other provisions, we all know that aid for parochial schools has been struck down, partly on the grounds that it is discriminatory on the basis of religion.
I turn now to Indian and native rights.
In 1979 the First Ministers made a decision and a commitment: a decision to place on the agenda of constitutional discussion an item entitled “Canada’s Native Peoples and the Constitution” and a commitment to give Indian and native people direct involvement in the process of constitutional review.
Now, we as governments have begun to examine this subject. We have had some preliminary meetings but we have not yet fully honoured that commitment.
I recognize the difficulty and complexity of this subject and I know, as Indians and natives know themselves, that final resolution of all items involved, the issues surrounding treaty rights, aboriginal rights, Indian political structures, Indian self-government, will not come easily or quickly. Certainly, the problems cannot be fully resolved in the context of the resolution now before the Committee, and I think all must concede that.
However, we must acknowledge the legitimate concern of native Canadians and we must commit ourselves now to address these concerns in a serious way as soon as possible after patriation. On behalf of the Saskatchewan government I make that commitment, and I think that other governments in Canada should make a similar commitment before or at the time the resolution is proceeded with in order that native Canadians may know that because all their concerns are not here, it does not mean that we are ignoring them.
Furthermore, I believe that, at a minimum, we should ensure that what we are doing now, if it does not advance the cause of Indian and native rights, is not detrimental to the position of Canada’s aboriginal peoples,
Indian and native people are concerned that Section 24, as now drafted, does not give adequate protection to their existing rights. Saskatchewan proposes an amendment to Section 24 which would recognize and safeguard, in a somewhat more explicit way, the rights of Canada’s Indian and native peoples, the rights enjoyed by Indians by virtue of treaties with the Crown, and such historic rights of Indians, Inuits, Métis and other native peoples as may be claimed or may exist, And we
acknowledge that there are disputes on that, we have attempted to cover that and you will see our effort at drafting in Appendix K. Now, Messrs. Joint Chairmen, I have spoken at some length because I feel strongly about this process and the future of our country.
I feel strongly about the fact that 50 years of tradition is being flouted by the process; I feel strongly that the Canadian partnership is being changed unilaterally.
But most importantly I feel strongly about the potential for division caused by the current proceedings.
Canada is strong, but not infinitely strong. We cannot engage in relentless and nearly constant controversy without endangering the basic structure of our nation.
It is our view that there is still time to seek a broader consensus. This may mean not proceeding with patriation at this time. It may mean proceeding only with patriation and amending formula. If a resolution containing something more than patriation and a simple amending formula goes forward, it certainly means that the resolution must have a broader base of support among Canadians than does the one which was referred by the House of Commons and the Senate to your Committee.
As members of the Committee you have the opportunity to recommend the appropriate course of action. If you decide to recommend that the resolution be proceeded with, then you have the opportunity to change the resolution from something which is flawed and clearly divisive to something with broader support, something more unifying for Canada.
Those of us in positions of responsibility have an obligation to seek with diligence and patience the accommodation so clearly needed to foster a spirit of co-operation and harmony.
Without being sanctimonious about it, I do feel that all of us in public life need to aim at what may unify us and not only focus on what divides us.
It is often easier to pick a side and to maintain ones position. This course promises a clear victory, and if not that, then a glorious defeat; rather than the seeming indignities of craven compromise.
But this country was built on compromise among those who represent its regions and that same spirit is needed today.
First and foremost, we need it if we are to prevent regional conflict from escalating still further, and that is a danger not to be taken lightly.
Secondly, we need it as a basis for the next step in constitutional renewal.
We all recognize that patriation, whether or not accompanied by the other items in the resolution is only a first step in the renewal of the Canadian federation to which we are all committed.
Now time is running out, There must be an indication very soon as to whether the federal government is prepared to make changes in the resolution, changes needed not only to respect the balance between the orders of government so crucial to the national unity, but also to achieve the broader consensus among Canadians generally of which I spoke.
If we can arrive at an appropriate resolution, as I believe we in Canada can, perhaps the process of patriation may yet contribute to strengthening our common commitment to a renewed Canada, a Canada which reflects our cultural and regional diversity and our shared national goals.
The Joint Chairman (Senator Hays): Thank you, Mr. Premier.
I now call on the honourable M. Epp, followed by Mr. Nystrom.
Mr. Epp: Thank you, Mr. Chairman.
On behalf of my colleagues in this Committee, I would like to welcome you here, Premier Blakeney, as well as your Attorney General, Mr. Romanow.
Those of us who, through the summer and now in the fall, have been at this topic can say it is at least one of the growth industries in the country.
Mr. Premier, I thought you put the whole matter in focus, that constitutional renewal is not the exclusive right of anyone person, any one government or any one party; rather, it must be a joint venture in co-operative federalism. That is the only way in which the federation in fact would be strengthened.
I get also from your brief and comments, prior to your appearance here this morning, that you are deeply concerned that the federation be strengthened and that it can only be strengthened through the methods which have been described by you here today.
It is my intention, sir, to concentrate primarily on the amending formula and other colleagues of mine will be looking at the other sections of your presentation this morning.
My question, Mr. Chairman and Mr. Premier, will be primarily reflected on the amending formula.
You are correct in saying that the amending formula is the most important aspect of the constitution in the sense that we can, through this method, change our fundamental law.
First of all, you say you would endorse an amendment to the present proposal which would remove the population factor for Atlantic Canada, thus dealing Prince Edward Island back into
Confederation out of which, under the present proposal of the government, they have been dealt at least so far as the amendment to the constitution is concerned.
Is that a correct interpretation of your view?
Mr. Blakeney: Yes, subject to the agreement of, let us say, three of the four Atlantic provinces. It is their formula; all four may well agree. But I understand it is generally acceptable to ‘them, and it it is, then I would agree.
Mr. Epp: That is also my understanding, sir.
The Minister of Justice was before us and that question was asked of him, whether he would accept that amendment for Prince Edward Island. I used the argument for Western Canada as well.
You are correct in saying that we are not paranoid in the West, but we would like to be dealt in as equal partners in Confederation.
While no one province in Western Canada falls under the guillotine as does Prince Edward Island under the government’s proposals, I would suggest to you that your province any my home province of Manitoba are nor far removed from the same effects under the proposed resolution.
I asked the Minister at that time whether he would accept the same amendment for Western Canada, namely, only two provinces. His answer was no. What is your reaction?
Mr. Blakeney: My reaction is that I would prefer one which dealt with all of the Western provinces equally, so two of the Western provinces: I know the formula which is in the federal draft is the one which was accepted at Victoria; I know this was of particular importance to the province of British Columbia.
By the way, the government of Saskatchewan did not either adhere to or disagree with the Victoria Charter, as a matter of history.
But we were prepared to accept that which has been agreed to broadly in Victoria without pressing too hard for our preferred one.
So we would accept either.
Mr. Epp: Mr. Premier, there is also, now, gaining some credence the so called Toronto formula. In your appendix it comes very close to what some of us refer to as the Toronto formula; the six provinces as a minimum; at least 80 per cent. You have modified that formula according to your appendix G. namely that you would need two or more of the Atlantic provices or two or more of the Western provinces: so that is a major modification, I would suggest, to the Toronto formula.
Is that one on the principle, again, that every region must be represented?
Mr. Blakeney: Yes, it is. I think the one way you cannot amend a constitution in a federal state is by reference to referenda where the majority rules; because if you are talking about majority rule you do not need a federation, because you already have a Parliament, you have a unitary state.
Therefore, it is important in constitutional change to have the regions represented. Our view was there ought to be two or more Atlantic provinces, two or more of the Western provinces, and, in effect, Quebec and Ontario.
That way, you would then at least not be writing into law a perpetual veto?
Mr. Blakeney: That is right; and I believe there is some feeling that merely because of a historical accident the province of Ontario had 25 per cent of the population at one point, if in the unlikely event it went down to, say, 15 per cent of the population and a burgeoning British Columbia had most of the population then Ontario should not have this special preference in perpetuity.
We have seen some fairly heavy shifts; Nova Scotia perhaps had 10 or 11 per cent of the population in 1867 and now it has, perhaps, 3 per cent. Things can change.
Mr. Epp: If the changes are not made along the lines of these principles—and I prefer that term rather than the word “formula”, because we can talk about formulas for a long time—the principle which would recognize the equal partnership of the federation, of the provinces, that provinces must have a place in the amending formula, in changing that fundamental law; if the federal government persists in its manner of creating second class provinces, what action do you intend to take?
Mr. Blakeney: Our position is that if the resolution does not emerge from the Committee—we will make a judgment as to whether the resolution is likely to be amended in the House of Commons; frankly, our current judgment is that it will not be, and that that which comes out of this Committee would be the resolution—therefore, we will not know what we are to say yes or no to until this Committee reports.
When the Committee reports then we will have to make a judgment. We will have to balance off our desire and what we believe to be the need in Canada for patriation against our objection to the process and we will be governed by the contents, as in so many of these other difficult decisions.
Generally speaking we will have to see some major changes in the amending formula, some of which are already indicated to be underway, but not all of them; and other of the major changes which we have suggested here.
I do not want to say that we insist on these particular words, and we understand that you people are dealing with many other people who have come with their draft and some tailoring may well have to be done.
But as to the principles, if these are not there, then we will have to assess our position, but in all likelihood we would say it is not there and we will take such action as is available to us.
Anything I now say may seem threatening—and we are not in a position to threaten anyone; but we will use such weapons as are available to us.
Mr. Epp: Have you had any assurances, either from the Prime Minister or from his Ministers in the last period as this Committee has been studying the proposed resolution, that the federal government is willing to make changes along the lines you have suggested? An amending formula I mean, because I am restricting myself to that.
Mr. Blakeney: I have had discussions with the Prime Minister, and my colleague has had discussions with Mr. Chrétien.
We think that there are some proposals in the works. I do not know anything more than you do on this; but we have not had indications that all of the principles we have outlined here are acceptable.
Mr. Epp: One final question, sir. I would like to confirm any fears you might have. We do not have any assurances here either that amendments will be made along the lines that our party has suggested. I notice from your brief that they are very close to what we have put forward both in the House and in this Committee.
I would like to just draw your attention in relation to the amending formula and your conclusion to this. If I understood your conclusion correctly—and I have said to someone that as regards most parts of it we could have written it ourselves—that you would like to see at this point in time patriation with an amending formula, would you be amenable to calling a meeting very early between the Prime Minister and the Premiers to work out details of the amending formula and then to patriate under that regime and then work further on constitutional amendments, not only in this proposed resolution, but other ones, for instance, national institutions such as the Senate which would give more regional balance in our national institutions—just that one example?
Mr. Blakeney: Yes, I would agree with that.
If I may digress for a moment, I say that even as a first step it is difficult to see the full resolution as an appropriate first Step, because it does not deal with something which is absolutely fundamental, the Supreme Court.
When you are talking about any federal constitution, you need a division of powers and an adjudicating mechanism, or you do not really have a constitution.
Now this one does not touch the Supreme Court, so, obviously, there has to be a step in any logic of a federal constitution.
Obviously, we would be prepared to go with patriation. For reasons already indicated I think patriation without an amending formula would be unwise, since it leaves all of the issues outstanding as to whether or not the unaniminity rule is a conventional or a legal rule—and that is a very important or vital matter to have hanging over us as a country.
We should put this to rest, and I think there is something to be said for this resolution in that it puts that dispute to rest; and I would be prepared to do that.
If people who have other perceptions of Canadian needs, believe that we must go beyond this and deal ith something about language rights now, people who genuinely have a feeling for Canada say that this is important, then I am perfectly prepared to accept their judgment about it and say, yes that goes in, but if we start that, then fair enough, we have to build a little regional base package. I would buy either of those.
Mr. Epp: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.
The honourable Mr. Nystrom, followed by Senator Austin.
Mr. Nystrom: Thank you very much, Mr. Chairman.
On behalf of my colleagues and our party, I want to welcome Premier Blakeney and his delegation to the Committee this morning.
I would also like to say, on behalf of our Saskatchewan colleagues, how proud I am of the brief presented by the Premier. In my opinion it is one of the most comprehensive, detailed and perceptive briefs that we have yet seen at these hearings.
I also wanted to mention the fact that we have with us this morning as well, Roy Romanow, the co-chairman of the continuing committee of Ministers on the constitution this summer. I say to you welcome, Mr. Romanow, and perhaps I might have an opportunity to throw a couple of questions at you a bit later on.
The Premier whispers want weapons he has. Well, Mr. Premier, I think you have a pretty stiff left hook, That is one of his weapons, Mr. Chairman.
Two matters have struck me about the Premier’s brief this morning and his comments, namely his very strong commitment to his philosophy of co-operative federalism, and that there are two orders of government and of powers in this country.
Secondly, there was his deep concern about the future of this country, Many times he referred, particularly in his conclusion, to the fact that time was running out and that we
have to do something soon and that the country was built on compromise among those who represent its regions, and that the same spirit is needed again. He talks of the document as it is now as being flawed and clearly divisive.
With those comments in mind, Mr. Premier, I would like to ask you about the changes you are suggesting to us, not so much in the amending formula, but with respect to the referendum procedures.
You are suggesting two or three changes in the referendum procedure, as to a referendum commission which is jointly appointed by the federal provincial governments, the need for one year of debate before a referendum can be held, which means it is not an instant referendum.
I wonder if you would care to enter into details a bit more on those proposals on why you feel that in changing the referendum in this way, it would do more to unify the country and bring us together?
Mr. Blakeney: Let me say that with respect to the proposals to convert the referendum procedure from an instant referendum—I have called it a deadlock-breaking mechanism—I just cannot think of any argument against that principle. I think the idea by and large is being accepted as a deadlock-breaking mechanism.
As to our efforts here to set it out, we think they are good, but we are not so proud of our draftmenship that some other way of approaching that could not be done.
With respect to the principle of reciprocity, it is clearly a little more difficult to draft that, and there are some other considerations involved; if people wanted to come up with some other way of drafting the idea of importing the principle of reciprocity, they would certainly be prepared to look at that, We acknowledge that that is a little more difficult area.
However, we do take the view that if provinces, as a group, propose referenda—propose a constitutional change, then clearly that must be addressed in some form, and the referendum is perhaps the most appropriate one.
With respect to the Rules Committee, again, we are not proud of our draft, but I do not think the principles we have set out can be really effectively disputed.
If you are going to use this hammer weapon, if I may use that expression, of a referendum, it must be done not only scrupulously fairly, but it must be seen to be fair, or else it is going to be in the highest degree divisive—and referenda have all the potential to be divisive—and I need not say that to anybody in Canada; if it is thought that you can challenge not only what has been done, but the electoral process, then that is dynamite, and we must guard against that, and we have attempted to do it in detail. If I may say so, we have attempted to do it in such a way that I do not think any federal government could take objection to, by having a person appointed by the federal government, a person selected by the provinces; if not, then if we can not agree, then by the chief
justice from among the people we have suggested, and the chief electoral officer of Canada. That gives the federal government clearly two to one, but it does set up a body which has a clear obligation to be fair and to parade their fairness, if I may put it that way.
Accordingly, therefore, I think that no legitimate objection can be raised to the Rules Committee idea, and I think our draft is appropriate; no legitimate objection can be raised to the deadlock breaking mechanism. We think our draft is good.
Perhaps legitimate objections can be raised with respect to reciprocity. We do not think they are valid objections. We certainly will look at other drafts. But we maintain firmly, the view that there must be an element of reciprocity. I do not want anything that I say to derrogate from that. We must have some measure of reciprocity.
Mr. Nystrom: The other matter the Premier stressed this morning, in addition to co-operative federalism, was the future unity of the country and finding a consensus or compromise and building a package which represented something positive for the country.
You referred to resources and to some of the powers you thought you did have as a province or provincial government under the present constitution. You have referred to several problems in the past that Saskatchewan has had in the Supreme Court in the Cigol case and the Central Canada Potash case. You referred to the need to clarify this.
I wonder if you would care to elaborate a bit more on this. I know it is at page 35 under appendix F. You suggest that you draft resource amendment. You also make the point very clearly that we have to make reference to the resources which are traded, not only interprovincially in our country, but those which are traded internationally because so many of Saskatchewan’s resources go beyond the borders of Canada.
Would you elaborate a bit on this concern and on the Cigol case and the Central Canada Potash case as to why the problems exist and why there is the need for these amendments?
Mr. Blakeney: Well, basically those two cases and the problems which they highlighted were as follows.
In the oil case our province had levied super royalties to catch the windfall profits when the prices went up rapidly in 1973. The statute was passed in the last days of 1973 as the prices were—those were the days when oil sold for $3.40 a barrel; that is simply today’s normal announcement of the increase.
We thought that they were perfectly valid. The courts held that that was an indirect tax and I think it is generally conceded that provinces ought to be able to levy these types of royalties from minerals which are produced not only on Crown land, where there is little legal doubt, but on land where the
mineral rights may be in private hands, and that is the question addressed by this talk about indirect taxes.
With respect to potash, my predecessor, Premier Thatcher, in dealing with a difficult problem of a drop in the potash markets, imposed a regime which said that every mine had to produce at 50 per cent or 60 per cent capacity, and this allowed them all to stay in business. They are out there in little towns and if you close down a mine you close down a town and he said: we just cannot have that, everybody has to be on quota.
That lasted until about 1973, 1974 when the markets turned up and we dropped the quotas because everyone could forge for themselves. There was enough for everybody at 75 or 80 per cent of capacity.
However, it was attacked by the companies in the course of litigation on a number of matters and it was struck down on the grounds that it was effectively dealing with trade and commerce, and trade and commerce of a commodity which entered into provincial and international trade.
Now, we think we ought to be able to do that, to attempt to regulate the rate of production, since it has such an enormous social impact on our province, and not only with respect to potash but the same will be true with uranium mines, subject always, as I say, to federal paramountcy. If we are using this in a way which is an attack on some important federal principle, the federal government can legislate it out of there but it ought not to be struck down at the insistance of the companies when the federal government is not taking any objection to it, when it is not interfering with any appropriate federal concern, and that is all we are asking; so that we can have that measure of management to manage those resources in a way which is consistent with provincial concerns, always subject to any federal law which operates.
We do not think that is too much, and that is what we are addressing in this resource package and we would not want that struck down merely because the resource enters international trade, as virtually all of them do.
A reading of the Central Canada Potash case appeared to indicate that the judges were leaning in the direction of saying that if it had a major or significant effect on the product which is moving into international trade, then it was trade and commerce, and the province could not do it regardless of whether there was any federal law. We think that is a bad situation and all we are asking is that we be allowed to manage, and to the extent our management affects interprorvincial or international trade, anything we do is subject to unrestricted federal paramountcy, and we think our position is thoroughly consistent with a Canadian approach to resources, With local management and control; but if there is a larger national issue it can be dealt with.
Mr. Nystrom: Thank you.
Mr. Chairman, if I may, just one more question?
The Joint Chairman (Senator Hays): Yes, all right.
Mr. Nystrom: Has my time run out?
The Joint Chairman (Senator Hays): Well, it really has.
Mr. Nystrom: Well, just a very quick question.
I would like to ask the Premier in view of the fact that what he is suggesting is an amendment to our constitution where there is clearly federal paramountcy, where if there is a conflict between a federal law and the provincial law and the federal Parliament is dominant, it is paramount, what are the reasons why the federal government would not agree with this perfectly logical amendment, then?
Mr. Blakeney: That is a tough question.
Mr. Nystrom: Are Liberals that illogical, unreasonable?
Mr. Blakeney: Let me say two things: first, I do not want to suggest that the unlimited federal paramountcy is our first preference, We wish that the federal government would state that they were acting based upon some national interest, and we had compelling national interest in 1979.
The federal government has drawn back from that, and while we very clearly prefer it, we do not want at this time to thresh that old straw.
With respect to why the federal government is concerned about it, my own belief is that the federal government is concerned about anything in the constitution which links provincial governments and international trade or any international concern because they have what I might call a super sensitivity, and that obviously is a biased point of view, it reflects by bias, about the provinces having any role in international relations.
Now, you will know from whence that comes and I make no comment on it except to say that I do not think that that sensitivity in any way applies to this issue and this problem and ought, therefore, not be a bar to us approaching this kind of a problem because it certainly does not permit any activity by a provincial government by way of making treaties or pacts with any foreign governments or generally acting in the role of representative of Canada abroad.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Nystrom.
Mr. Nystrom: Thank you.
The Joint Chairman (Senator Hays): Senator Austin.
Senator Austin: Thank you very much, Mr. Chairman.
Premier Blakeney, for my colleagues on the government side and for myself, we welcome you here. You have been very helpful this morning and have made some proposals to this Committee that I consider quite exciting. I think you have certainly earned your reputation as the pivotal premier in these constitutional discussions, and I have no doubt that there are ears beyond those who are here who are anxious to hear your concerns and your ideas, and I assure you they will be heard.
I join with the concern of Mr. Epp, Mr. Nystrom, that there are those in our part of Canada, in Western Canada, who feel that in some way the standing of the provinces in Western Canada may be diminished by an amending formula of the kind that requires or grants a veto to any particular province.
At the same time, I think, Mr. Premier, that you have expressed your concern in the past for the problems of maintaining the culture and language and community integrity of the Province of Quebec.
I wonder if you could express to us again here what those concerns in Quebec are and how your Saskatchewan proposal, which you have put in your brief this morning, which I find very, very attractive, would assuage and assist in minimizing the concerns of the people in the Province of Quebec?
Mr. Blakeney: Well, let me attempt to respond to that.
I think Senator Austin has raised a point and I want to state it as a concern that is expressed in Western Canada, not necessarily my concern.
The rule with respect to amending the constitution now is unanimity. that is the belief. There is a further belief that the resources belong to the provinces and that the financial benefit ought to flow to the provinces.
A further belief is that this principle is not accepted in Eastern Canada and that there are dark designs on western resources and that, accordingly, we are about to face constitutional amendments which will give expression to these dark designs. Now, I do not necessarily share those views but I well understand why they are held and, accordingly, any proposal which places the western provinces in a significantly different position with respect to constitutional amendments than the provinces of Quebec and Ontario, which are said to be the resident provinces of the dark designers, clearly has problems.
Now, if you add to that a provision which says: and furthermore, thou shalt always be in an inferior position, it does not matter how much you develop, how substantial you become; then this adds to the feeling of unease.
And you can go either way. You can say: if you become 25 per cent of the population you, too, can have a veto; or you can go the other way and say nobody should have a veto based upon history but only upon the present position, from time to time, and I think logically that has everything to commend it, save only the point which Senator Austin suggested. It may well be there as a protection for the Province of Quebec, not qua Quebec but qua the protector of the French language culture.
Senator Austin: That is right.
Mr. Blakeney: And that raises an extremely difficult problem. I think it is appropriately addressed by the fact that it is going to be generations, I would think, before the population of the Province of Quebec would go below 20 per cent. I would think it a long, long time. Maybe you will like 15 per cent, then, if you think—the idea, really, is to try and get a formula which has a measure of flexibility based upon current rather than historical events but still provides a measure of protection for its language and culture.
That is our effort. We will sure look at anybody else’s which tries to address those concerns.
Senator Austin: I suppose to some degree, Premier Blakeney, it comes down to who should take the risk, however
remote. The Province of Quebec has been very clear in saying, we are not prepared to take a risk and, as you very well pointed out, the risk is not simply to economic or political power but to the culture ofa community as well.
Mr. Blakeney: And there is a little problem about linking on Ontario with Quebec, but I suppose . . .
Senator Austin: I have noticed that no one has raised that with you thus far but the discussion is not over yet.
Mr. Blakeney: Yes.
Senator Austin: I did want to talk again about Western Canada and to ask you whether it is uncomfortable for you to accept the proposition that Saskatchewan must find another western province in order to be able to block any proposed amendment?
Mr. Blakeney: Yes, it is uncomfortable since we, too, are a minority and there are a large number of people in Saskatchewan who believe that we have a distinctive social pattern, sometimes exhibited in the political institutions of the province and that therefore we will frequently be under attack, and we are right now, at least in our perception, the only left of centre government in Canada, and as I say, in our perception, I underline that.
We, too, are a minority but we have to face the fact that we must have some measure of flexibility in an amending formula and we are prepared to say: fair enough, we will take those chances because we think that Canadians are basically fair minded and we can probably convince them that they are fair minded.
Senator Austin: Do you think, Premier Blakeney, that you will have some opportunity to persuade your colleagues who are western premiers of the validity of the Saskatchewan proposal and the flexibility that you built into it?
Mr. Blakeney: Well, I am not awfully persuasive on this point with my colleagues because they have done the same balancing act but came down on the other side. Their belief was that the process was so unacceptable that they do not feel it is useful publicly, as I understand it, to address the contents because it gives legitimacy to a process which they think is highly objectionable, if I state their position fairly, and I do not think I can dissuade them from that.
Senator Austin: Can I turn to a point that Mr. Epp made. He referred to the Senate as a possible balance wheel in the federal process which might be used to give better representation to Western Canada and to Atlantic Canada and which could be effectively a counterweight to the population pressures that come from central Canada.
Do you see reforms of the Senate as being able to achieve a better representation for western interests?
Mr. Blakeney: That of course is in stage two but I have difficulty with that. I would like to think that is true. I am not sure that it can be true unless the new Senate, whatever we call it, has some sort of an electoral base. I think we have moved into an era of politics wich says that any appointed body that does not have legitimacy in the legislative arena . . .
Senator Austin: So a form of proportional election might be worth considering.
Mr. Blakeney: Right, or perhaps as Senators or second chamber representatives who are directly appointed by provincial governments and whose appointment falls with the provincial government. They have an electoral base.
Senator Austin: But so does the present system. In that sense they have an electoral base and the Prime Minister holds a mandate from the country because of the size of his support in the House of Commons.
Mr. Blakeney: But that cannot be changed. You get rid of the Prime Minister but you do not have the luxury of getting rid of all the Senators he has appointed.
Mr. Mackasey: I am not sure which is hardest.
The Joint Chairman (Senator Hays): Your time is nearly up. Senator Austin.
Senator Austin: But you do agree, Premier Blakeney, that the bicameral system in Canada is required for a country of this size and the federal system that we have?
Mr. Blakeney: Well. clearly one of the major flaws in the Canadian federal system is that there is virtually no regional representation at the centre. The classic federalism has one chamber representing the public on a roughly representation by population basis, and the second chamber which represents the regions and an effective chamber, and it can be elected as in the US and Australia. There can be a number of combinations.
That we have never had in Canada. With all deference to the Senate, it has never represented regions, the party system has proved too strong in Canada and it has been the party rather than the region that has been represented and we, therefore, have lost the regional voice at the centre, and we have, as I indicated, replaced this de facto with the federal-provincial conference as the regional voice at the centre. As the need for more and more regional voices at the centre came, the number of federal-provincial conferences increases, practically by the year, and I do not know how to get around this but we need to.
Senator Austin: On that point let me ask you about a controversy we are having here in this Committee and that controversy is whether or not the so-called Vancouver Formula had the unanimous agreement of all of the premiers.
Premier Hatfield came to us and told us that he had great doubts that there was such unanimity there. He told us that there are two kinds of agreement: one that is tacit and tactical and one that is firm, and he doubted if there was any firm agreement with respect to the Vancouver Formula.
I wonder if you could comment on that particular issue, Premier Blakeney? You are our best evidence of what might have taken place?
Mr. Blakeney: Well, I think that I am not the best evidence, there were l0 or ll people at those meetings depending on which meetings we are talking about and my recollection is no better than the next.
I would put the type of agreements in three categories: there is a full agreement saying: I like it and I agree to it; there is what I might call the tactical agreement saying: I certainly do not like it, I do not think it is going to fly but it is our best bargaining position.
There is no doubt that the first was not true; there is no doubt that the second was true; the question is whether there was a third level of agreement saying: I have very considerable reservations about it but if that is the only one we can all agree to, I will swallow and say yes.
I think there was probably that level of agreement. There are all sorts of “swallow and say yes” in this for me. This would not be my first preference, this was my effort to state what I think might be generally acceptable to the Government of Canada and a number of other people, and that type of what you might call compromise agreement I think probably surrounded the Vancouver formula.
Senator Austin: Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Senator Austin.
We now go to five minutes rounds and the fact that we have about 10 or 12 speakers. if you will permit me, I may be a little tough on the time. And I now go to the honourable Mr. McGrath followed by the honourable Mr. Irwin.
Mr. McGrath: Thank you very much, Mr. Chairman.
A am glad that Premier Peckford put Senator Austin’s mind at ease . . .
An hon. Member: Premier Blakeney.
Mr. McGrath: I am not sure I can recover after that one, Mr. Chairman.
An hon. Member: Do they sound alike or was that a Freudian slip?
The Joint Chairman (Mr. Joyal): Mr. McGrath, I will have to tell you that I fully concur with you.
Mr. McGrath: In any event, Mr. Chairman, I am glad that there now is no doubt that there was general acceptability of the Vancouver Formula by the premiers, and that should put that to rest once and for all.
I would like, Mr. Premier, to . . .
Senator Austin: I think the Premier’s answer stands for itself.
Mr. McGrath: It certainly does.
The Joint Chairman (Senator Hays): Go ahead, Mr. McGrath.
Mr. McGrath: I would like, Mr. Premier, to refer to something you said on page seven of your brief where you referred to, and I quote, “unilateral action defies the constitutional
conventions which have for at least 50 years governed the procedures for amending the BNA act.” You go on to state that these conventions were developed for good reasons, and then you go on further to state that in our federal state unilateral action of the kind proposed must be condemned. The federal action may or may not be legal, the courts will make that determination, but it is clearly corrosive of the basic principles of federalism.
Well, the courts may or may not make that determination, and indeed the question we have to satisfy ourselves on is will the courts make that determination before we have an opportunity to make our determination, because the order of the House states that we have to recommend whether or not such an address, with such amendments as the Committee considers necessary, should be presented by both Houses of Parliament to Her Majesty the Queen. That leads to the question of legality as far as we are concerned because obviously, we as a Committee should not recommend something which is demon: strated to be illegal or unconstitutional, to say the very least.
Now, there have been arguments presented to the Select Committee of the British Parliament by at least three of the provinces which state that these conventions which you refer to, which are in fact a part of our constitution just as much as the British North America Act, are just as binding on the UK Parliament as they are on the Canadian Parliament, or the Canadian Parliaments; and secondly, there has as well been at least three constitutional experts testifying before the UK Select Committee that what the Government of Canada proposes in the joint address contravenes these conventions and is in fact unconstitutional.
We have had Mr. Justice Clyne before this Committee and he can be classified as an expert witness and he has stated the same thing.
Now, I realize you are probably going to say that this is a matter for the courts to decide but I submit to you, Mr. Premier, that it is also a matter for this Committee to decide, and I say to you, as one of the distinguished leaders of this country, one of the senior leaders of the country, in that respect I look upon you as an expert, I say to you that we have to set aside ourselves on that score and since you are one of the provinces not making a presentation to the UK Select Committee and and that you have not joined the other six provinces in referring the questions to the provincial appellate courts, it would be very helpful to this Committee if you were to state your opinion on whether or not in your view the conventions are binding on the UK Parliament if the Government of Canada proposes to go beyond merely patriation with an amending formula, if the federal government proposes to proceed with the joint resolution as it is now before the Committee,
I may add as a footnote that we have had written evidence presented to this Committee that what the federal government proposes by the joint resolution is in fact ultra vires of the Statute of Westminster which conferred sovereignty on Canada and which took away from the Parliament of the United Kingdom the right to legislate in domestic Canadian
questions, which of course clearly would cover the question of the proposed Charter.
Mr. Blakeney: You have raised a couple of questions. May I just make one minor clarification.
When I was responding to Senator Austin. I want to speak firstly for myself as to the nature of our commitment to the Vancouver concensus and, secondly, on what my perception was of what other people were doing.
Clearly, when you are at a meeting and people are agreeing to something and clearly they are hesitant, you know, the state of their mental reservations is something not known to everyone else, so that when I can speak for myself, I obviously cannot speak for the other actors and in meetings where essentially you are getting a bargaining position and you are saying, can we agree to this, et cetera, et cetera, what mental reservations may be attached will be able to be stated by other premiers and I will not seek to speak for them.
On the other question that you raise, certainly the resolution contravenes the conventions of the constitution. Certainly in this sense, it us unconstitutional. Are those conventions binding on the federal and provincial governments in Canada in a legal sense? That, clearly, is a very difficult question and it is not clear just what we are saying is binding.
If you say that none of them are binding, then you are left with the situation where apparently the only constraints on the federal government are political ones. You are left with the proposition that Canada is not a federal state because at any times, at least in the last 50 years, since the Statute of Westminster, the federal government could have passed a resolution to abolish the provinces—let us put it at its highest—and that that must have been acted upon by the Parliament at Westminster and that there would have been no legal impediment to it, whatever the political impediments may have been.
That is a startling proposition that there is no legal basis for Canadian federalism. So, to say that they have no binding force strikes me as a startling proposition because, as I say, we have all been living in a dream world believing that there was a federalism when in fact it was perfectly legal for the federal government to abolish the provinces.
To take the other position and say that the conventions are fully binding and that unless we have the consent of governments we cannot really change anything which affects provincial jurisdiction, however peripherally, leaves us with a remarkably rigid constitution. That, frankly, is why I do not like the judicial approach to this one because it can only declare winners or losers and we clearly need something in the middle, and this is one thing good about this resolution among the many bad things about it, the one good thing is that it settles that issue.
So, I am not, in a sense, prepared to address the question fully as to whether or not those conventions are binding on Canadian Parliaments.
To go on to your next question of whether or not they are binding on the U.K., in a legal sense, my view is no. In a legal sense, I believe the U.K. can pass any act it wants, the Parliament, and then it is up to Canadians whether or not we pay any attention to their act, and it is the question of whether Canadians pay any attention to their act that determines the question of whether or not we are independent or not.
I cannot see how we can say to the U.K. Parliament, you cannot pass an act. I am sure the Canadian Parliament can pass an act setting up a new province in the State of Zambia and it will be a proper statute in a purely legal sense. It will be of no application in Canada and of no application in Zambia but, never mind, it is a proper exercise of legal jurisdiction.
In the same way, the U.K. can pass all manner of things with reference to the BNA Act, unless they are constrainte by the Statute of Westminster, and since they can always repeal that, in accordance with British parliamentary tradition, there is nothing that strictly legally binds it.
The question arises as to whether or not it has any force and effect in Canada and since it is widely believed that the UK. Parliament is a bare trustee—to use Judge Rand’s words-then the decision is to be made in Canada as to whether or not those interventions are valid, and I would wish it to be made in Canada. In my perception, the U.K. is a bare trustee but it is not at all clear for whom they are trustee. In my judgment, they are not a trustee solely for the federal government, by the way.
An hon. Member: l am glad to hear you say that!
Mr. Blakeney: And the tough area is: for whom are they a trustee. While the U.K. Parliament cannot conceiveably pass an amendment to the BNA Act not requested by Canada and have it accepted in Canada, we all conceive that, and the question is whether or not, in the course of performing their function as a trustee, they are entitled to enquire into whether or not this request comes from the true beneficiary or from someone purporting to be the beneficiary, and that is the whole issue.
Mr. McGrath: Premier, if you . . .
The Joint Chairman (Senator Hays): Your questions are so good that you lost your time. But I will permit you one more question.
Mr. McGrath: Premier, if you state that you have some doubt as to whether or not the U.K. Parliament is a trustee solely for the federal government, then I gather from that that they have a role with regard to the trusteeship of provincial fights as well. Certainly, I do not think that there is any doubt in my mind with respect to my own province which entered into Confederation in 1949 and they were, in fact, a trustee, a disinterested third party, if you like, of a contract between Newfoundland and Canada. I do not know if our position is unique in that regard or not but if they are a trustee of
provincial rights as well, that is interesting because at least two occasions when a joint address went to Britain to amend the constitution in areas touching provincial jurisdiction, the Unemployment Insurance Act and, I think, the Old Age Security Act, on each occasion provincial consent was sought and perhaps if I can get away from the question of legality, surely it would seem to me that if the Parliament of Westminster is a trustee of the two levels of government, then the conventions are just binding on the Parliament of Westminster as they are on the Parliament of Canada.
That would seem to me to be logically consistent.
Mr. Blakeney: Binding, meaning that they are. . .
Mr. McGrath: Binding in terms of a constitutional sense.
Mr. Blakeney: Morally. They are morally obligated to consider these in the discharge of their trust, fair enough. Binding in the sense that they are legally enforceable, I frankly do not know and since I neither have the time nor the remuneration of judges of the Supreme Court of Canada, I do not think I should usurp their role.
The Joint Chairman (Senator Hays): Thank you very much, Mr. McGrath.
The honourable Mr. Irwin.
Mr. Irwin: Mr. Premier, Mr. Romanow, it is indeed a pleasure to have you in Ottawa, as I indicated earlier.
We have these constitutional discussions to such a fine point that all of your speeches, from just this summer, are now in book form, both yours and Mr. Romanow’s, I have read most of them last night that we have and I found them very enjoyable, the Toque and the Uke analogies and the Malcolm Ross analogies. If anything comes through, it is your consistency and both, yours and Mr. Romanow’s, deep love and roots for not only Saskatchewan but this country. But I must say this.
My feeling today, after sitting since actually October 6 and listening to 62 40 minute speeches and over 180 witnesses in this phase, is almost like your feeling at the end of the conference when you said:
My disappointment springs from the obvious fact that we have not had a successful conclusion to this phase of Canadian history.
And I want to go back even further, to another Canadian who said this:
This would have been the last amendment to the BNA Act to be made in Westminster as all further power of amendment would have been transferred to Canada. But we decided there was no rush. We believed that the plan would be accepted and acted upon. The result was that the provinces of Saskatchewan and Quebec found some new grounds for objection. We were so close to success but we failed.
That this was an area where no one else has ever succeeded did not lessen my sense of loss or regret.
That was Mr. John Diefenbaker, he was talking about 1961 when they had concensus and we had, after about 15, 16 months, dotted every i and crossed every t, and I have a great fear that that may happen again, and I see it so close now.
Even though the Association culturelle franco-canadienne from your province were not satisfied, throughout your speeches you say you support what they want, if the mechanics are there, the numbers are there, if we can work it in, and that comes out, and you say you do not like the idea of entrenching human rights but one of the best briefs we have had, one of the best presentations was Mr. Ken Norman’s, your Chief Commissioner from Saskatchewan on human rights who very much wants an entrenched rights. As a result of questions from Mr. Hnatyshyn, he said, definitely, definitely. He wants that.
So I see us agreeing on the why and the what, and it just saddens me that we cannot work the how out.
I would like to start with your natural resources. l can sense your bitterness from some of your speeches, your disappointment or failures in the past and the litigation with regard to Bill C-42—the Potash case. You want the power to pass laws with regard to international trade. You do not want to deal with international trade policies, but you would like to be able to regulate your own resources.
The difficulty is the traditional federal power in relation to trade and commerce.
But, is there not some administrative mechanism which is agreeable and which could be entrenched which would satisfy not only the national interests, but could avoid future problems such as we had in the Central Canada Potash case?
Mr. Blakeney: If the administrative arrangement was entrenched as you say, then obviously that could work,
But as that term is ordinarily used, administrative arrangement implies something not entrenched, meaning it is an arrangement between governments which can be withdrawn at any time.
I would be a little alarmed at that, because we have, from time to time, our difficulties with the federal government on other issues and we would not want our normal regulation of resource subject to the constant threat of withdrawal of administrative arrangements.
It is not only provinces that use weapons in the course of bargaining, and it is not only provinces that threaten. Daily we hear about money going to be withdrawn from the social program area. I am not objecting to that, because that is bargaining. But I do not want to have this right dependent Upon the state of bargaining between federal and provincial governments as that state changes from time to time.
Mr. Irwin: Certainly, if we can divide broad principles such as equalization and language rights, and very nebulous rights and can come up with some mechanism which would satisfy
your needs and our needs, which could be enshrined, it cannot be any more difficult than terms like equalization; yet we are enshrining equalization.
Mr. Blakeney: Well, I do not particularly see any problem with our wording.
I do not understand the level of the federal objection and what has happened since February, 1979, when this international trade question was not raised as a problem—there were problems about compelling national interest, about the declaratory power, in respect of each of which we think we were right in 1979 and each of which we have backed off from in the interest of a consensus; but this issue of international trade was simply not raised, and for the life of me I do not know what the problem is.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Irwin.
Mr. Hnatyshyn followed by Mr. Mackasey.
Mr. Hnatyshyn: Thank you, Mr. Chairman. I also would like to take this opportunity of welcoming my fellow citizens of Saskatchewan, the Premier and Mr. Romanow, to this meeting. They have presented a very helpful brief, which has tended to clarify the position of the province very greatly.
I would like to carry on with respect to the matter of the Charter of Rights if I may, because the Premier spent some time in his brief and presentation on this.
I would like to suggest to the Premier that, while the statements made in his brief appear to be rather more negative, in other words in opposition to the concept of an entrenched charter of rights to suggest to the Premier that Canada is, in fact, a unique country, and it is not entirely, though it is built to some extent, on the tradition of the United Kingdom; it has some of the aspects and is under the influence of some of the civil law; it is a melding, it is a unique country as a result, and looking at the whole question of a charter of rights, I am often reminded that our British North America Act does in fact entrench certain rights which may be classified as basic rights to our political system, our fundamental political rules, developed in the British North America Act. There are certain linguistic rights which are already contained in that statute.
So that while we can say that there is always the argument, that on the one hand, we are not under the Napoleonic code nor are we exclusively under the British tradition, not having a written constitution as such—and I would like to propose to the Premier something to get a clarification with respect to his attitude towards an entrenched bill of rights, more or less a marrying of these two, if I may put it this way, solitudes, to see whether or not the Premier is adamantly or absolutely opposed to some idea of developing maybe an essential and fundamental set of rules which could be entrenched in a bill of rights and which could serve as building blocks to develop a consensus in this country.
I think there is no question but that a very substantial number of people in our country are supportive of having fundamental rights which are in fact entrenched, and which are not necessarily available to legislative change.
In our province, for example, some years ago there was an enactment which prohibited—and I am sorry to use the language of the Statute— but a chinaman from employing a white woman; in British Columbia there was a prohibition by legislation that it was not to employ a Chinaman in a mining industry. That kind of legislative action does exist, whether we like it or not and it is unfortunate.
So I simply wanted to canvass with the Premier, whether or not he does not see some kind of marrying process where we can develop, by consensus, some middle road in this debate, by having fundamental rights which will be generally agreed, fundamental, political, and individual rights in a charter of rights which can have that consensus, and then develop from that point forward.
Mr. Blakeney: My answer is yes. It can be done.
I think it is important, to my way of thinking, not to confuse what I think are rights which we claim as Canadians with human rights.
The simple tests is this: if you went to Mexico would you still claim them? If you went to Mexico would you claim the right to be educated in English or French? The answer is no. It is because you are Canadian that you claim that right, It has nothing to do with humans or your mother tongue or anything like that, because we do not do that for the Inuit or the Cree. So that there is a packet of Canadian rights I freely concede should be in the constitution.
There are some political rights which, in my judgment, should be in the constitution, because you cannot necessarily rely upon Parliament and legislatures not to take advantage of their position to extend their term or to seats and the like, and history will not support any suggestion of impartiality in that area.
When it comes to what I would call genuine human rights, then I say yes; but, then we run into what I think is an almost insuperable problem of approach.
There is a large body of people who say that we ought to set out in a charter of rights the aims and aspirations of our society, the values which we hold dear and set them out, whether or not we can live up to them; they are hopes and aspirations. Therefore, they say, we stand for freedom of speech, religion, nondiscrimination and all the rest of it; yet, knowing perfectly well that we do not believe that, knowing perfectly well that nobody believes in freedom of speech; they believe in freedom of speech sometimes, with all manner of qualifications with respect to slander and with respect to not being able to incite hatred against another linguistic, ethnic group or the like, There are a large number of qualifications.
I start out with a proposition that a charter of rights ought to be a minimum of guarantees that we say we will live up to, the minimum. We will go beyond that, but not in the Charter.
So that when someone asks me to say, “You should commit yourself in the constitution not to discriminate on the basis of sex.” when I know we are going to discriminate on the basis of sex, then I have trouble.
As an illustration, there is the problem in Saskatchewan where we have a human rights code which we passed and which says that if you are leasing any accommodation or offering any accommodation you cannot discriminate on the basis of sex. Now that seems innocent enough.
Now, the clear little widow in Saskatoon puts and ad in the paper saying, “Warm, comfortable room for lady boarder”; you cannot do that. We had to change the code to allow her to discriminate, to allow that woman to specify that she wanted a lady boarder and not a male.
We are working on this now with regard to the extent to which women can claim rights to jobs as custodial officers in men’s custodial institutions. That is not an easy problem. That is not a problem which is capable of being solved by merely saying that we are in favour of nondiscrimination on the basis of sex. That is just chest thumping and is not dealing with the essential problems of operating a society and of drawing these lines.
I know that some people believe it is a good idea to state our aspirations in a constitution and to allow the judges to make all the qualifications. I think the essence of government is making a fair number of these qualifications and I say that the judges are not well qualified to do this. They do not have the expertise or the staff. They cannot set up task forces and they cannot find out what the problems are. They may not be terribly sensitive to what the public wants.
Therefore, I tend not to be in favour ofa ringing declaration of what we say we are going to do when we know we are not going to do it and to allow the judges to put in the qualifications.
Therefore, I find myself on the other side of the fence.
Now I know there are a lot of people who do not agree with me, and they are people whose judgment I respect and who say that our society needs this statement of purpose as guidance not only to the courts but to the legislatures.
Maybe there is some common ground, because I fully acknowledge that my view is not necessarily the correct one.
Mr. Hnatyshyn: Now, to my final question. I wanted to get a declaration from the Premier and from Mr. Romanow as to whether or not they do not think that there is some work on a compromise basis in respect to these two solitudes which is achievable so that we can work towards that unique Canadian situation where there will be statements of fundamental rights which would still allow for the legislative process to remain effective and that there will be an opportunity to adapt.
The Saskatchewan Human Rights Commission, in their presentation, endorsed the idea of an entrenched Bill of Rights, as long as there was some process, as you have adequately suggested, to work these things out in advance.
Mr. Blakeney: Let me make a couple of statements. First of all, I do not want anything that I say to be interpreted as meaning that I am not in favour of rights or a Charter of Rights, and a Charter of Rights which has an over-riding
provision, over-riding all other laws. I think the Canadian Charter of Rights, without meaning to be abrasive, could be strengthened in that regard. We tried to do that with the Human Rights Code in Saskatchewan, and we have a piece of litigation before the courts saying that we have overlooked the over-riding provision and we are being sued and my colleague, the Attorney General is the defendent.
It is the question of entrenching that we are addressing. I could certainly go along with entrenching and with a non obstante clause, because basically the courts are good places to decide individual cases of human rights issues, but bad places to decide broad social policies in the guise of deciding issues of human rights.
Therefore what we need is some basis whereby the legislatures can over-ride if, in the course of deciding an issue about a single citizen, they have made a decision which affects broad public policy.
I had thought that the resolution before this Committee was not too bad in that regard, because it has Section I which is a kind of non obstante clause in advance.
You may think that is too comprehensive, but the suggestion of deleting Section I raise all my apprehensions, because we are then left with a very large number of judgments to be made by judges, and if we want to explore this area I could suggest one or two fairly horrendous decisions which would fall to the judiciary to be made which I do not believe Canadians in any way believe ought to be made by the judiciary as opposed to their elected representatives.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Hnatyshyn.
Mr. Mackasey, followed by Mr. Beatty.
Mr. Mackasey: Mr. Blakeney, I approach you, with some trepidation, because I have watched you with great admiration on television. You remind me very much of the extremely astute union leaders I used to have dealings with. Your position today seems to be one of bargaining in a laudatory fashion.
I have developed a habit from my years as Minister of Labour of listening to negotiations, to look for key phrases which would indicate the position, perhaps, or some signal. There is a lot today which encourages me. I may be reading more into the flexibility you have shown towards the proposed amending formula, and at the same time castigating the one in there.
But I have yet to be able to tie down today or from the proceedings at the last conference, the position where you would state categorically you support the position of the federal government.
For instance, earlier today you have used such prhases as “consider acquiescing” or “might necessarily share”.
It seems to me that you are still bargaining. Is that a fair comment?
Mr. Blakeney: Yes.
Mr. Mackasey: But there must be a moment when we cease bargaining.
Mr. Blakeney: Yes.
Mr. Mackasey: And that includes the federal government. I am not speaking for the federal government but I know that as a concerned Canadian time is running out in the country, I say this as one who, like yourself, has roots in the maritimes, Quebec. Ontario, Canada. I am very concerned. and I have the same passionate love for this country which I know you reflect.
I feel very concerned that we have to stop bargaining very soon. There is not much more to bargain. I can distinctly remember one labour dispute when I said, “gentlemen, bargaining is over. There is no more bargaining”
I was pleased that you said today that at least the amending formula, imperfect as it is, would settle the issue of an amending formula. I think that is a very key thing. Do you have anything to say to that?
Mr. Blakeney: Could you kindly repeat that?
Mr. Mackasey: I said the amending formula which we are proposing, imperfect as it is, at least would bring an end to that.
Mr. Blakeney: Yes. That is right.
Mr. Mackasey: I think it is one of the few cases where the ends justify the means. I do not wish to pursue with you the Bill of Rights, because I share some of your concerns about the complex problem of individual rights versus collective rights.
As far as Section I is concerned, the person you have to persuade is Mr. Nystrom, who would eliminate it completely. He is closer to you than I, in the sense of geography, if not philosophy.
Mr. Blakeney: And if I were to persuade him, is it a deal?
Mr. Mackasey: I want to say that the impasse around the amending formula which you have attempted to break today—and I value that attempt—nevertheless simply shifts the onus from the West to Quebec; because I can say that Quebec’s position in demanding a veto over the constitution is something I support, having lived there for 50 something years and understanding what a great province it is, and its ability to blend major groups, and the determination of Quebeckers to preserve their language and culture—I found that in the National Assembly; I understand it. I understand their fear that if, by accident or design, the constitution of Canada can be amended unintentionally or intentionally to limit their ability to protect that language and culture, that that is the end of their language and culture. I share their concern.
I think, ironically, their concern would be greater if they were only 15 per cent of the population rather than 20 per cent.
So what I am saying that if the West is hung up on Quebec’s historical concept of the veto and its importance then we are at an impasse which we would never break. That is really what has evaded us for 50 years, not the lack of. It is a different perspective of the importance of the amending formula and what it means to Quebec.
The preservation of its language and culture is what it means. Without the language Quebec, participate. Having said that, I fear, equally—and that is why I think time is running out—the growth of a concept on the part of many intellectuals in this country, that the simple solution to Canada is to have two linguistic blocks, Quebec, unilingually French, and the rest of Canada unilingually English. That would be the end of this country.
I repeat, that would be the end. That would be the sure road to separation, when the only time you communicate is for business reasons. That is why it is important that the English speaking community in Quebec should be retained, and equally important the French speaking community outside of Quebec should have a chance to flourish.
That is why I was pleased with the paragraph on page 15, I think it is, where you say that you do not object to the constitutional entrenchment of French and English language rights. That is important, coming from a man of your stature, because we have had briefs which acknowledge that historical fact.
The right to use French or English or the right to receive some government services in either of those languages is also very important. It is not, after all, a right which we claim as humans; it is an essential fact of Canada, and if the French community of Saskatchewan is going to survive it needs to be serviced in its own language. If it cannot survive, then there is no reason that French speaking Quebec should encourage the existence within its community ofa strong English presence.
Would you go so far as to extend under certain circumstances, and Mr. Nystrom, for instance, has made the point that he intends to bring in an amendment extending “Section 133 to Ontario and New Brunswick, would you be prepared to have him include in this amendment the same provisions for the Franco-Saskatchewanians which were demanded here by your community, and I do not ask that to embarrass you, I ask you as another concerned Canadian who I think has the same view of this country?
Mr. Blakeney: Well, let me attempt to respond to several things that Mr. Mackasey has said.
First with respect to the bargaining, I do not know whether the bargaining is over. It seems effectively to have stopped on the resource issue. Just let me take a moment. I want to quote from a document that was widely circulated, the Ministers eyes only document which became public at the time of the First Ministers’ Conference which says:
It is clear that no agreement with the Western provinces on this item of resources will be possible at the First Ministers’ conference without extending concurrency with federal paramountcy to certain aspects of international trade and resources. Acceptance of this principle will most probably mean an agreement with almost all provinces and will still be very much less than was contemplated in February, 1979.
Now, I believe that was the position of the federal government. I have not seen many departures from that. I believe
that that is the position of the federal government and they have simply not agreed to this at all, so I think, all right, they are still playing that game and maybe, I do not know, but I just say that and I may be totally wrong on that, so I leave the question of bargaining. I just give that as evidence of saying that I would have thought time was running out and any time now would be soon enough to tell us what the federal proposition is on some of those points. That is really the essence.
Now, back on the language issue. I basically share your view of Canada that we will not survive as a bilingual country, we will not survive as a country if we have unilingual blocks. Accordingly, there must be some ability of Anglophones to exist as Anglophones in Quebec and Francophones to exsist in Ontario and New Brunswcick, and, yes, in Saskatchewan. This is not only directed to those Francophones or Anglophones who may be in a minority position now in parts of Canada, but also, as I say, to the Francophone majority in Quebec who ought to have some right to move across Canada, including to Saskatoon; or the Anglophone majority in Saskatchewan who should have some right to move to Quebec City and expect some services.
So once we get that concept in there, then, yes, this is why I say I agree to French language education. We are making some very significant progress notwithstanding what the ACFC may have suggested, and I have been saying this at federal-provincial conferences.
I am not now asking you to sympathize with me, but it is not a popular cause in Saskatchewan because the Francophone group in Saskatchewan alone is a very small linguistic group, well below Cree. And as for Ukrainians or Germans or others, they are much more numerous than the Francophone community. About 2.9 per cent.
So, yes, I think we would be prepared to look at other arrangements. The whole Section 133 would be tough sledding but if we are talking about courts, if we are talking about other services, we would sure give it a try. I think of it in the legislature, I think the only fully fluent Francophone in our legislature now is Randy Nelson who is a Swede and who happens to teach French in high school. Mr. Rousseau can speak some French, he grew up in Fort Francis and it is not the sort of center of French culture in Canada.
Mr. Mackasey: There could be more in the future?
Mr. Blakeney: Well, yes, exactly, but I say this not by way of denigrating our present group but only by way of saying that it is an effort that has to be made to deal with the problem, it is not something which is being denied a large group in Saskatchewan now.
The Joint Chairman (Senator Hays): This is your last question, Mr. Mackasey.
Mr. Mackasey: I do not think you have quite answered my question, perhaps because I did not state it properly, which was: would you accept Mr. Nystrom’s amendment, the extension of Section 133, not only to New Brunswick and to Ontario but also to Saskatchewan?
Mr. Blakeney: Well, as I say, I think that would be tough sledding for us. If I were not out there alone, if I knew that all
the provinces with a Francophone minority of more than 2.9 were there with me, yes.
Mr. Mackasey: Well, if we put the threshold at 2.9 you would perhaps be enshrining yourself in history, Mr. Blakeney, a place I think you deserve to be, but somebody has to be out front and this has always been one of the problems of this country.
Am I to take from that that your answer is no?
Mr. Blakeney: Well, I think the answer is, if you want Section I33 in its current terms, the answer is no. If you are asking if the entire contents of Section 133 is being rejected, the answer is no.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey.
We are going to take a 15 minute break and we will return about 12.05 p.m.
Premier Blakeney has indicated that he would be available for questioning after that for a short time, so the meeting is now adjourned until 12.05 p.m.
The Joint Chairman (Senator Hays): I will now call on the honourable Mr. Beatty.
Mr. Beatty: Thank you very much, Mr. Chairman.
Mr. Blakeney, because of the constraints of time you did not have the opportunity to read all of your brief and I believe there was one paragraph on page 4 which I think was particularly constructive, it certainly reflects the feeling that many members on this side of the Committee have and I think it might be useful to put it on the record. You say, about mid way down on page 4:
Yet now the federal government proposes to act unilaterally, in breach of the firmly established constitutional convention. What it proposes may be legally possible. It is constitutionally wrong. It is not federalism. It is not Canadian.
I think that is a very important statement, Mr. Premier, and it is one certainly with which I concur very strongly.
Mr. Blakeney, when you were discussing the question of the courts with Mr. McGrath you indicated that you had a strong preference to have the issues currently outstanding settled by the politicians and not by the judges. I would like to ask you, assuming that Ottawa does not show reciprocal flexibility, the same sort of flexibility that you have shown today, assuming that they do not go back to the bargaining table to reach an agreement with you, are you ruling out the possibility either of joining in the current court challenge or initiating your own?
Mr. Blakeney: No, I am ruling that out, As I said, if the resolution coming out of this Committee is so flawed that we find ourselves unable to support it then, as I indicated, we would attempt to oppose it with such weapons as are at our disposal and this doubtless would cause us to at least consider the judicial route.
Mr. Beatty: The second question I would have is: even assuming that Saskatchewan’s concerns are met and it is possible for you to agree to whatever resolution goes forward,
now, assuming that some of your colleagues, other provincial Premiers feel their concerns have not been met and that they believe that the court challenge should continue, it is your position that the federal government would be justified in going ahead and asking the British Parliament to make significant changes to our constitution before the courts have had a chance to rule on the legality and the constitutionality of what the government is doing?
Mr. Blakeney: Let me make two replies to that.
The first is that I hope I did not put forward my proposals with a view to saying that these are Saskatchewan’s concerns in the sense of a narrow Saskatchewan perspective.
While undoubtedly there are some things of particular interest to Saskatchewan I try to put forward concerns which I think are broadly Canadian and that many Canadians share, whether or not they live in Saskatchewan.
Secondly, on the basic question you ask, it would seem to me that prior to the Parliament at Westminster being called upon the deal with this matter, that it is sufficiently questionable legally that a way ought to be found to have the Parliament at Westminster have the assistance by the Supreme Court of Canada. It strikes me that it is not self evident that the federal government can change the constitution of Canada, to use my extreme case, abolish the provinces, and that there are not legal restraints. Accordingly it seems to me that it is not self evident that the federal government can in a legal sense act unilaterally.
I do not think we should face the Parliament at Westminster with any difficult decisions in this area if in fact, as I believe, it is sufficiently doubtful, and I think therefore we ought to give them the benefit of a decision of the Supreme Court.
Mr. Beatty: Mr. Blakeney, then does Saskatchewan rule out the possibility of giving its support to a federal resolution to go to Westminster prior to a court decision?
Mr. Blakeney: Well, I think that what we would undoubtedly do is attempt to say that we agreed with the contents, or while we did not agree with the contents we think that the contents are sufficiently acceptable so that the over-all impact on Canada would be favourable and accordingly we would accede to that.
The question of the sequence of events, we frankly have not turned our mind to. It has been my assumption, frankly, that this would not be at all disposed of until the matter had been placed before some courts and we had some guidance.
Mr. Beatty: Are you prepared to call upon the Prime Minister to reopen negotiations with the provinces and to reinstitute a new federal-provincial conference to try and reach some sort of political agreement?
Mr. Blakeney: I have indicated earlier that I favour that course of action. I do not want particularly to call upon the Prime Minister to do that. I do not call upon him but from the point of view of making a public presentation, I am busy bargaining and I am trying to get some changes, there is not much point in taking positions for the sake of effect during this particular interval.
Time will tell if the negotiations are not productive.
Mr. Beatty: One final question, Mr. Chairman, if I may.
Mr. Blakeney, on October 24, 1978, you appeared on the CBC program the Fifth Estate in an interview with Eric Malling in which the question of the courts was raised.
Mr. Malling asked you this question:
During the campaign, the Supreme Court found against Saskatchewan on two complicated resources issues and you seemed to be almost campaigning against the Supreme Court rather than against the opposition here or even the Liberals in Ottawa. You attacked the centralist Ottawa judges on the Supreme Court. That seemed to me to come very close to really attacking the integrity of the court itself?
Your response was:
No, I did not attack the centralist Ottawa judges. I attacked the federal government who appoints those judges for their policy and I suggest it has been a very conscience policy of appointing people who would have a federalist point of view.
Mr. Malling then asked you:
If these judges are parochial or are acting parochially, that is just a step away from saying they are looking after their own interests?
Your answer was this:
No, not at all, not at all. Look, I am biased, you are biased, they are biased, and to suggest that I or you or any judge in this country is not biased in one sense of the word—he brings all of his preconceptions as l or you do, he does his best to surmount them, nobody denies that. I am sure that we have as fair minded a people as we can get on the Supreme Court but this does not mean that they somehow are not the creatures of their nature and of their education and of their background, Nobody can climb out of his past, be it a politician or a journalist or a judge.
Mr. Blakeney, you did not allude in your remarks to a long standing concern that you have had about a centralist bias on the part of the Supreme Court and yet you have pointed out the fact that you believe the British Parliament currently has a trusteeship responsibility on behalf of not just the federal government, but on behalf of the provinces as well. When that trusteeship responsibility is given up by Westminster, the only protections that either of the players has against encroachment by the other on areas reserved to it under the constitution is in fact the court itself.
Why in your presentation to the Committee today did you not deal with your concerns about your perceived bias within the Supreme Court, and what proposal would you be making to the Committee to ensure that the rights of the provinces, the rights of your province in particular, are protected once patriation has taken place, from any perceived centralist bias on the part of the Supreme Court of Canada?
Mr. Blakeney: Well, I think there is in here, perhaps there is not, a little reference to the fact that this is an incomplete package. Perhaps I did not put it in, I certainly referred to it elsewhere, and that no federal system can operate without defining the role of the final adjudicative body, the Supreme Court. Accordingly, we will need to add provisions for the Supreme Court; that is going to be in phase 2.
We have a commitment from the federal government along that line, that there will be a phase 2 and it will include the Supreme Court and native rights, and doubtless some other things but at least those too, and that since it was not in the resolution and since nobody was proposing to put it in the resolution, I did not outline any particular views about the Supreme Court.
I do believe that the Supreme Court will attempt to protect Canadians in a pretty fair way in the interval. I do not mean in any way to suggest otherwise, save only that it is difficult to find a federal state where all the judges are appointed centrally, where the power does not seem to move towards the center.
I therefore say that I will advance a good number of these views on phase 2. I have advanced them on earlier occasions. Essentially, I suggest some provincial participation in the appointment of judges.
Mr. Beatty: So that what you are saying, Mr. Blakeney, is that while you feel that the centralist bias or perceived centralist bias on the part of the Supreme Court is sufficiently grave to require a reshaping of the Supreme Court to allow for provincial appointments, you do not feel that it is sufficiently grave to require this issue be dealt with prior to patriation, and could you also indicate how many western judges or how many provincially appointed judges would be necessary in your judgment to protect the interests of Saskatchewan?
Mr. Blakeney: I am not talking about provincially appointed judges but rather than the provincial government has a role in the appointment process. We argued about it all summer and there are a good number of proposals on the table and, yes, I am saying I do not think it imperative that Supreme Court provisions be in this resolution.
Obviously, if I am arguing that our preference for any resolution be that it be confined to the patriation and an amending formula, I cannot in the next breath say: but you have to cover the Supreme Court. I am saying my preference is hold back if you feel you can; if you cannot, patriation and an amending formula, and if you add to that a regionally balanced package, I do not think it is imperative that it include provisions for the Supreme Court although it is clearly imperative that that be addressed shortly or once again we do not have a federal system.
Mr. Beatty: Thank you, Mr. Blakeney.
The Joint Chairman (Senator Hays): Thank you very much.
Mr. Benjamin followed by Mr. Corbin.
Mr. Benjamin: Thank you, Mr. Chairman and Mr. Blakeney.
There are two areas I would like to ask you a question about. One of them will be a triple question in one area and another question in another area, that is on resources and on your very limited comments about Part IV.
As a result of bitter experience in our province in terms of what we thought we had in the BNA Act, I am wondering about the word “primary” in Section 2 of your resources draft, in each province the legislature may make laws in relation to the exports from the province of the primary production. What if the province chose to semi-process or process that production before it went into export? Does not the word “primary” place some possible limitations on that province?
Secondly, in the area ofa regionally balanced package, does the suggested Saskatchewan draft cover the matter of off-shore resources or if it does not, then I take it you would leave that up to some further negotiations or proposals from somewhere else in Saskatchewan?
My third point about it is, since I am not only not a constitutional expert, I am not even a lawyer, but your paragraph 3 which relates, I take it, to paramountcy of the authority of Parliament, relates to Section 2 of your draft and not the rest of the draft, and why not?
Mr. Blakeney: I am not quite sure that I have got the last question, I am going to consult my people for a moment.
With respect to the definition of resources, yes, it is true that if the resource is processed to a substantial degree than it is not within the rights of a province to say that boots and shoes shall not move freely or, as the case may be. An effort to define that is set out in the sixth schedule on page 36 which is:
Production from a nonrenewable resource is primary production therefrom if:
(i) It is in the form in which exists upon its recovery or severence from its natural state, or
(ii) It is a product resulting from processing or refining the resource and is not a manufactured product
That definition was worked through pretty carefully in 1979 and I think is basically acceptable.
Your second question with respect to the off-shore is correct. The Saskatchewan draft does not deal with the off-shore resources question. It did not because this is an outgrowth of the agreement in 1979, and that agreement did not cover the off-shore.
We have already indicated our view that off-shore resources should be dealt with in the same way as on-shore resources, at least in the Newfoundland case. I do not know whether we have been asked in the British Columbia case. But with respect to Newfoundland and the arrangements between Newfoundland and the Clark government, we wrote both to Mr. Clark
and to Premier Peckford and said: one, we object to the process; we do not think that .the Prime Minister of Canada and one provincial premier should be negotiating with respect to the terms of the constitution, and we object to the process. But having objected to the process, we will swallow our objection because we approve of the end result and we will therefore agree with what you and Mr. Clark have agreed to.
So, we might find ourselves yet again going through an objection to a process, but a final agreement.
That is what we did with respect to off-shore minerals.
With respect to the third point, I am going to take some counsel now.
We are saying with respect to provincial regulations on the exploration and development of resources, that is a pure provincial power and is not subject to federal paramountcy and we are not prepared to have federal paramountcy with respect to the exploration and development of resources.
It is only when those resources move into interprovincial or international trade that the question of federal paramountcy arises, and it is only that the federal government might attempt to affect exploration and development of a product which is moving into international trade by reliance on their power over trade and commerce. We say yes, they have that power over trade and commerce; but we are not saying that if we explore in the province for provincial purposes you have any power; but if it is legitimately trade and commerce we say we can operate in this area, but you have paramountcy.
Mr. Benjamin: Finally, I take it what you have said about off-shore resources, that that means that provincial authority would apply, as it does for on-shore, but that the other areas would still remain not only in the federal parmountcy which you suggest for on-shore resources, but also that the usual federal authority shall apply when it comes to fisheries, international treaties, other nations and all of the other matters beyond just the limited resources matter, that the federal authority would be there in those kinds of instances.
But my final question, as I said, is that I note that you say on page 11—and I quote:
I will not comment on the many problems with Part IV of the proposed Act. It is clearly a make-weight provision, not intended to be used.
What bothers me is if it is not intended to be used, then why is it in here? Would you care to comment some, if any, of the many problems you see with it?
Mr. Blakeney: Let me deal with the first one. Yes, I agree with you. I do not see the ownership of off-shore resources or the right to develop off-shore resources if they are in the provincial sphere interfering with federal power over fisheries,
the environment, international treaties, international waters or the like.
I believe that in Lake Erie the Government of Ontario asserts ownership of the mineral rights and develops them under Lake Erie. This, in no way, interferes with federal powers over fisheries in Lake Erie or over environmental issues. or at least some environmental issues there, or over international treaties or boundaary waters and the like.
Clearly there are lines to be drawn.
We assert that the federal government must have some significant control over the continental shelf if it is going to enforce the 200 mile limit, or environment, international treaties and the like, and I do not think that anybody denies that, and we certainly do not.
One other point. Dealing with Part IV—and I do not want to deal with it in extenso, but looking at Part IV it says this. First it does not apply to the referendum procedure. It is the referendum procedure which is most objectionable to us. It only deals with what I might call the Victoria Charter or the legislative provisions. That is point number one. It does not allow the provinces to put forward an alternative to the crux of the amending procedure to which we take the most violent objection.
Secondly, it does not allow us to put forward a proposal which would be balanced against the one in the resolution and put to a referendum.
Please understand what it says. It says that you provinces can put forward your proposal, that once you have put forward your proposal we have power as a federal government to put forward an alternative proposal. We get the last kick at the can. We get the last one. Then those two are put to a national referendum and majority rules.
Now understand the position of Saskatchewan. Under what circumstances would I ever agree to an alternative referendum going forward? The answer is never, because I know once I do and once eight provinces agree, then the federal government has an opportunity to shape an amending formula specifically designed to appeal to Quebec and Ontario and nobody else; put it into a referendum. and have it carried in Quebec and Ontario, have it wiped out in eight provinces and have us stuck with it. That is the proposal.
It has all the marks of the people who drew the document which we saw this summer! I say, under no circumstances could any premier of a small province ever agree to get into that proposal. It is like going into a lion’s den to pick a rose. You simply would not do it.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Benjamin.
Mr. Corbin, followed by Senator Tremblay.
Mr. Corbin: The name is Corbin, Mr. Chairman.
I would like to take this opportunity to thank the Premier of Saskatchewan for providing us with a French text of his statement. I greatly appreciate his thoughtfulness. I think that this is an obvious sign of his desire to respect the principle of two official languages at the federal level.
On page 5 of his brief, the premier says that constitutional renewal must correct the existing defects and put in place the basic building blocks of a constitution for our federal state.
It is further stated that:
but it must do more than that. Constitutional renewal in 1980 must also respond to accumulated pressures for change.
To the long standing and deeply held aspirations of French Quebecers. To the aspirations and needs of the new west.
I am in complete agreement with him on this.
However, I am a French speaking Canadian who does not live in Quebec, I am from New Brunswick and since I am required to spend most of my time in the National Capital in the Province of Ontario with my family, I have been able to observe the existence of glaring and serious linguistic inequalities, and I am not only talking about your province, Mr. Premier, but about our National Capital.
If I may, I would like to turn to a provincial matter for a moment and ask you what you intend to do if the provisions concerning minority language instruction, as contained in the draft resolution, are adopted by the Canadian parliament and Westminster as part of the partiation of our constitution? How do you intend to apply these provisions in your own province, Mr. Premier?
Mr. Blakeney: Thank you, monsieur Corbin. I regret that I cannot respond in your language. I will therefore do so in English.
Our position is that we would agree with the provisions in the resolution with respect to the language of instruction making available schools in French. We have already moved along those lines. We have made a great deal of progress, limited progress in the early years of the last decade, rapid progress, perhaps not enough, but nevertheless rapid progress since May, 1978 with the new education act and some new regulations in the spring of 1979 setting up a system of schools which roughly says that the pupil shall be entitled at the request of his parent or guardian to attend a designated school, that is where the French is the language of instruction, and receive instruction in a designated program appropriated to his grading year, and if there is no school around we pay for his transportation, for board and all the rest of it.
Our francophone community is very, very disperse and we take some pride in the fact that we have got schools of over 35 students covering grades from kindergarten to grade nine, gathered up over a circle of perhaps 60 miles in diameter. We had to go through that big an area to get 35 students to put in nine grades, and so you get two or three students a grade. We tried.
Clearly, we need to do a great deal more, and there is a problem in matching these rights with the traditional autonomy of local school boards and problems of that sort.
There is not a single division in Saskatchewan where the francophone group would be nearly a majority. There is no place in Saskatchewan where you could draw a circle, however big or small and encompass 5,000 people and have a majority of francophones. There is simply no nodal point. They are all in small villages, and the only place where you can get 5,000 francophones may be would be in Saskatoon, and they would be 5,000 in 175,000, and that is essentially the problem.
We are going at this in various ways, by boarding, by setting up schools, some by fairly large long distance bussing arrangements, and we are prepared to do more and we acknowledge the problems.
We would suggest that we have made a good initial effort and we would invite a little compassion for our particular problems, but we take some pride in our accomplishments.
Mr. Corbin: I realize that your intentions are laudable and I do not intend to cast any doubt on your sincerity.
However, a Francophone group from Saskatchewan which recently appeared before the committee suggested that a certain amount of control over education be granted to the language groups concerned. I believe that beyond the more recognition of the existence of a French speaking group in Saskatchewan in addition to your present and future efforts, they would like to be able to have some control over their school boards.
I think you will agree with me, Mr. Premier, that since the language is the expression of the culture, the French speaking population of Saskatchewan must enjoy a somewhat greater degree of control over its language of instruction, within the framework of provincial jurisdiction, of course, and in keeping with the educational criteria and standards established by Saskatchewan. I would be quite willing to recognize such a right for the many other sizeable ethnic groups living in Saskatchewan. We certainly do not want to refuse other cultural groups that which we are requesting in terms of the Official Languages Act of Canada.
I am the member of parliament elected for the constituency of Madawaska-Victoria and I also speak as a member of parliament for all of Canada. I must admit, Mr. Premier, that if I wanted to move with my family to your province tomorrow, the lack of educational facilities provided in the other official language of Canada would be sufficient cause for me to hesitate.
I fully appreciate the points which you have brought to our attention but I would like to urge you to do more and to proceed with greater haste. I believe that my colleague, the Honourable Bryce Mackasey, put things very well when he said that you had a unique opportunity in Canadian history—I
am sure that your name will go down for other reasons as well—but it is very important at this time for all men of good will to settle once and for all this question of our two official languages with equal status throughout our country. It is not a matter of shoving French down our throats, as has often been so wrongly claimed in the west. I think that you have understood this quite well, Mr. Premier, but there persists a serious injustice towards one of the founding people of this country in several Canadian provinces and I am urging you to do more and to proceed with greater haste. Once our constitution has been patriated, whatever the parliaments should decide, I hope that you and the other provincial premiers will be able to come to a satisfactory agreement as quickly as possible on this point with the federal government.
I do not know if the problem is basically one of money. The Premier of Ontario, who was recently involved in a by-election in the National Capital area, told us here that the basic reason for his refusal to extend Section 133 of the British North America Act to the Province of Ontario was a matter of money.
I cannot accept this. As a representative of one of the less rich provinces, as you pointed out in your opening remarks, would you be willing to accept that the federal government provide you with financial assistance for minority language education, provided there was no infringement of your provincial jurisdiction in this field? Would you accept financial support from the federal government to encourage the efforts which you are already undertaking?
Mr. Blakeney: The short answer to Mr. Corbin’s last question is yes. We would certainly have no great difficulty in working with the federal government, particularly in accepting their money, encouraging French language education.
The problems are not only money, There are problems of the perception that people in a small rural area see as to what is happening to their community.
Please understand that of the 64, I believe it is, rural school divisions in Saskatchewan, they average about 2,000 square miles and have about 1,000 students. So you have to comb 2,000 square miles to get 1,000 students. You have three, four or five schools tucked around there.
They have, perhaps, 100 students in five or six grades; perhaps 200 would be all that there are in the 12 grades. They are struggling to keep that number, struggling to maintain a level of facilities and good teachers, and the special talents would keep their school alive for their community, and if someone comes along and says “we want to withdraw this number, because these people want a French school” well, they should be entitled to the French school, but understand the position of the community. They say, “All right. There goes our school.”
But there is no way when you shear off those 23 we are going to be left with 150, 160 and so on and so forth. It is the struggle for survival of small communities in rural Saskatchewan which tends to make them resist fracturing; and we already have these areas fractured in a sense that with respect, in some areas, to, for instance, Roman Catholic separate schools and Protestant schools—of course French are a tiny minority of the Roman Catholic community, because the bulk of the Roman Catholic community would be German or Ukrainian as the case may be; and we have yet another fracturing.
It is perhaps a degree of insensitivity to the concerns of francophones in some of these areas but if you have fought this fight to keep your town or your village, I understand it. I can understand what motivates them.
Now, I suppose there is no problem that money could not solve, and you could say you can have just as many teachers for half the number of students, but that gets you into all manner of problems in the next community which does not have any francophones and they say, “how comes it that we cannot get that much money for the same number of students,” and on and on we go.
So those are the problems of government, and we are not asking for any sympathy. We are paid to solve those. But they are not black and white problems.
Mr. Corbin: Thank you, Mr. Chairman.
Thank you, Mr. Premier.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Corbin.
Senator Tremblay: Thank you, Mr. Chairman.
Mr. Premier, I would like to join with the others in thanking you for presenting your views to us today.
I have a few remarks to make on a matter discussed by you and Mr. Mackasey in reference to what I would call the significance of the amending formula for Quebec, particularly as concerns the Quebec veto in the Victoria Formula and the opting out provision in the Vancouver Formula. I would like these to be set in the context of Quebec’s concerns.
Mr. Mackasey quite rightly pointed this out and I think that you recognize it in a passage quoted from your brief a while ago.
For Quebec, the amending formula, the veto or the opting out provision constitutes some sort of lasting guarantee that it will be able to maintain and develop its identity. When Quebec requested a veto for the amending formula some time ago, I think that it did so out of the concern I have just described. This was a type of negative protection, so to speak, which had one major drawback, namely the fact that it resulted in the construction of the amendment which was seen as jeopardizing Quebec’s identity.
I think that the Vancouver proposal represents a form of progress in this connection. This is why I personally prefer this formula. Not only does it allow Quebec or any other province, through opting out, to maintain certain characteristics which it considers important but it also avoids any obstruction of the amending process.
In view of this, would you be willing to give your preference to the Vancouver formula rather than the modified Victoria one, which you say you favour, since it would at least theoretically do away with the veto power granted to a province like Quebec? I feel that from the traditional Quebec point of view, it would be hard to accept the removal of the veto as such from the amending formula.
Opting out would be a more flexible approach and could be used to the same end for a province like Quebec.
In view of these factors, that is the significance for Quebec of the veto in the Victoria formula, and the opting out in the Vancouver proposal, would you be willing to give preference to the Vancouver approach?
Mr. Blakeney: Thank you, Senator Tremblay.
I perceive the alternative legislative proposal which we put forward as causing a problem for Quebec. We are suggesting that not because we think it would make any difference, but because it symbolically removes a problem in Western Canada it has been suggested that it symbolically creates a problem in Quebec, and possibly more than symbolism at some future time.
It may well be that, again in the interests of some sort of reaching a consensus, if we get to that point then we can say: “Well, all right. we can do without that symbolism in Western Canada.”
You raised the other question of the Vancouver proposal. Yes, we adhere to the Vancouver proposal; yes, we think that the opting out arrangements provide a solution. It would create more instances of particular status for a particular province. We already have a number of those in the constitution and this would give at least potentially a good deal more.
I do not know whether we have fully explored just how rich a flowing of particularity we can stand, and still have a constitution. I think that represents the problem of the Vancouver Formula. I, for my part, would be willing to take the chance and say we could go this way. There will not be that many opting out and we can solve it.
I understand the view of those who say you are going to have a ragtag and bobtailed constitution when you are through, and logically that could be true. In practice I do not think it will happen.
So I am basically agreeing with you that I think the Vancouver Formula is a livable formula for us. We can handle two or three in this area and still be within the range of acceptability for us.
The Joint Chairman (Mr. Joyal): Thank you, Mr. Premier.
Senator Tremblay: Mr. Chairman, if I may, I would like to ask a shorter question relating to Section 42 and your proposal to include this in the process which you describe as reciprocity.
I gather that your categorical objection to the type of referendum provided for in Section 42, that is the referendum as an amending formula, is based on the fact that one of the two orders of government can overrule the other order of government through recourse to the people.
It seems to me that providing the provinces. that is the other order of government, with the same power to overrule the federal authority brings up exactly the same question of principle.
I would like some clarification on this point. Do you believe that the fact that the two orders of government would be able to reciprocally overrule each other brings about any fundamental change in the problem, mainly the fact that in the federation both orders of government must be equal and act jointly, particularly in connection with an amending formula?
Mr. Blakeney: Basically l agree with your latter contention, that in an amending formula in a federal state where both the federal government and the provincial governments are sovereign in their own spheres, to quote the Judicial Committee, then if we are going to amend those areas of legislative responsibility, the amending formula ought to reflect the sovereignty of each, if I may put it that way.
I strongly prefer that we not have the referendum procedure. I made that clear. If there is to be a referendum procedure then I think it ought to at least attempt to reflect the dual sovereignty that is federalism.
Clearly it must provide that there be an opportunity for the legislative bodies of both orders of government to discuss—that is an absolute minimum—and hence the deadlock breaking mechanism. It must be arranged fairly and hence the other arrangements.
With respect to the ability to trigger a referendum, the reciprocal arrangement, clearly a number of models could be looked at there. But it seems to me only reasonable and fair that if the federal government can trigger a referendum really in order to, as I say, overcome intransigence by provincial legislatures, there ought to be some reciprocal arrangement Whereby the provincial legislatures operating as a group can appeal to the people when the public which they represent is not being responded to by the Parliament of Canada.
I do not think I can put it any higher than that but it seems to me only logical and fair.
The Joint Chairman (Senator Hays): Thank you, Senator Tremblay. I am awfully sorry, Senator Tremblay, you have taken 10 minutes and we have two or three others. We Promised Premier Blakeney we would get him away at 1 o’clock and I am very sorry.
Mr. Allmand: Premier Blakeney, Saskatchewan is a province with a large population of Indians and Métis and while you have said that we cannot expect to solve all the problems of the Indian and other aboriginal peoples in this constitutional proposal, you felt that Section 24 was an inadequate recognition of aboriginal rights. You have proposed an amendment which is set out in Appendix K on page 42, but I would like to ask you why you would not agree. I look on your proposed amendment as an improvement but still lacking and I am wondering why you would not put that in a positive way rather than in a negative way such as it is worded. I would just like to go through it with you.
Would you accept if we were to start this Section 2 where you say “any rights enjoyed” in the second line, so that the section would read:
Any rights enjoyed by Indians by virtue of treaties made between Indians and the Crown or any historic rights which to Indians, Inuit, Métis or other native peoples of Canada, are hereby recognized and confirmed and no federal or provincial law may abrogate or derrogate from those rights.
Because the way you have it now is that you protect Indian and native rights, Métis rights, from anything in this proposal but they are not perfected. The treaty rights and the other historical rights that you refer to are not protected from other federal or provincial laws and we have had about, I guess before this Committee, sure 20 groups, not all aboriginal representative groups, but many other groups who have suggested positive entrenchment of those very basic things that you referred to?
Mr. Blakeney: Well, yes, thank you, Mr. Allmand.
May I say firstly that our delegation is at the disposal of your Committee? If you wish to meet longer, I am here and can be at your disposal.
Secondly, the original Section 24 appeared to protect rights by saying that the Charter did not deny the existence of the rights, It seemed to me merely to say that you were not denying their existence did not necessarily mean that you were not affecting, abrogating or derrogating from them, at least derrogating from them, and we had to do better than that,
So we have said we do not derrogate from any undoubted rights under treaties or any historic rights pertaining to Indians, Inuit, Métis, saying whatever the rights are, we are not intending to make them any less. That is the intent of that proposal.
It does not affirmatively state or confirm rights of Indians, Inuit, Métis, essentially because of my approach to a Charter of Rights: that one does not dare assert that which you are uncertain about, and I think it is fair to say that we are uncertain about the nature, scope and extent of the historic rights which pertain to Indians, Inuit, Métis or other native peoples.
I do not like to put in a charter anything I cannot deliver on. So this is essentially the minimum. It represents my point of view on charters.
If someone takes the other point of view on charters, that we ought to state in a charter the goals to which we should be aspiring, then by all means we can say that we confirm the historic rights of Indians, Inuit, Métis or others even though we are not too clear what they are.
Now, that strikes me as a reasonable position, given that opinion, but one fraught with potential difficulty because it will be misunderstood as so many other statements in the Charter will be if they are put in broad sweeping language.
Essentially it reflects our opinion on how a charter ought to be drafted as a minimum guarantee, as opposed to a statement of what we would like to happen.
Mr. Allmand: You understand that if we proceed and we pass this constitutional proposal, that any further amendment would have to go through the amendment formula, whether it is your proposed amendment formula or the Victoria Formula it would only take two provinces to veto amendments to strengthen Indian and other aboriginal rights. Although your province seems to be in good faith in putting these in a high priority and the federal government says they will put them at a high priority, we know from experience that many provinces will not even sit down and negotiate. I can think of five off hand. Therefore, it looks very, very depressing for the native peoples if we do wait to put anything positive in after patriation. As I say, it would only take two to veto, and one if it was Quebec or Ontario under the present formula, although I do not consider them the worst. As a matter of fact they are rather positive.
May I ask you another question? Would you be opposed to including in Schedule 1 as documents which make up the constitution of Canada? I ask because Section 52 says that the documents in Schedule 1 are part of the constitution of Canada, the Royal Proclamation of 1763 and the Order in Council transferring Rupert’s Land, the Northwest Territories to Canada; both documents which set out or which recognize to a certain extent aboriginal rights and treaty rights and which put an obligation on the Government of Canada to negotiate and settle those claims.
Now, for some reason those documents have always been considered constitutional documents, However the schedules left out any document prior to 1867. What would be your position on including them in the schedule?
Mr. Blakeney: We have not fully addressed this but my reading of the Royal Proclamation of 1763 suggests to me that we would not object to its inclusion. The Royal Proclamation says. by and large, I will not try to paraphrase it, but that the rights of Indians to lands cannot be reduced in a great sweep of lands right down to Florida, Florida East and Florida West, provided, however, that this does not apply to lands in the hands of the Hudson’s Bay Company.
We think that the great bulk of Saskatchewan were designated Hudson’s Bay Company lands.
Mr. Allmand: That is why the Western Indians also would like in there the Order of Council transferring those lands.
Mr. Blakeney: Yes, and therefore that Proclamation as it seems in its strict terms does not apply to much of Saskatchewan because it specifically excludes the Hudson’s Bay Company lands and we think the great bulk of Saskatchewan, if not all of it, was covered by the 1570 grant.
The Hudson’s Bay Company, the Order in Council regarding Hudson’s Bay Company, as I say, we have not fully addressed this but I think our answer is we have no objection.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Allmand.
I would like to go to Mr. de long with a very short question to conclude.
Mr. de Jong: Thank you, Mr. Chairman.
Some of the questions that I was going to ask were asked by Mr. Allmand. I was going to have some further questions but since you are restricting me to one question, Mr. Chairman, I would ask this one.
Mr. Premier, you had stated there is a possibility of getting some agreement, and I think the third area you mentioned was the possibility, before the package would become acceptable, of getting some agreement from other regions as well. You have listed the concerns of Saskatchewan, the West generally, but Saskatchewan in particular, the type of changes you would like to see in the package.
My question is: given this process that is occurring do you think it is possible to as well include the concerns of other regions and come up with a package that addresses the concerns of all regions of this country and to end up with a package that truly can be acceptable by all or most, if not all, members of the House of Commons as well as all regions and all provinces in Canada?
Mr. Blakeney: I think that we simply cannot seek a package which responds to the most pressing concerns of all regions and expect to have it done this year or next year, because we have been trying that for some time.
However, I do see the prospect of a limited package which at least addresses some of the concerns of each of the four regions, and I suggest that the primary concerns of the Western Region has been resources, and while it is not a perfect draft and while it is not what we would want, I think the proposal we put forward is within the reasonable range and will address some of the concerns of Western Canada and we would regard it as a substantial positive contribution.
I think Atlantic Canada has been particularly concerned about equalization, and while it is only a commitment thereto, if it is a strong commitment thereto and to equalization payments, I think that will be seen as a positive contribution to Atlantic Canada.
We are told that the language rights provisions are of particular concern to the province of Quebec. I am not now attempting to speak for them but on that assumption this will respond to one of their concerns.
Ontario has not expressed particular concerns except patriation. That will clearly be responded to. Possibly the mobility provisions in the Charter of Rights which have from time to
time been mentioned by Ontario, that strikes me as a package which has an appeal to all regions, which avoids the complexities of the complicated amending formula involving a referendum and the complexities of a Charter of Rights to which, as it seems, everybody in Canada agrees to but nobody agrees to any particular charter, and accordingly I think we could do that in a measurable period of time, get the patriation job done, respond to concerns, not all but some of the concerns all across Canada, and have a package which has a prospect of being a unifying force rather than a divisive force.
The Joint Chairman (Senator Hays): Thank you very much, Mr. de Jong.
I must apologize to some members of the Committee. We have a number of speakers yet. Miss Campbell, Senator Austin, Mr. Hawkes, Mr. Fraser and so on, and we have given a commitment to the Premier that we would have him out of here at l o’clock. He has been here for three and a half hours and I am sure we all appreciate the time that you have spent, Mr. Premier and Mr. Romanow, with us.
Mr. Hawkes: A point of order, Mr. Chairman.
The Joint Chairman (Senator Hays): Yes.
Mr. Hawkes: I understood the Premier to say he was willing to stay a while longer. I wonder if, with his concurrence—I do not know what that meant.
Mr. Blakeney: Well, I am at your disposal. Many of you have been up all night and I do not mean to press on your time. I simply say I am here in Ottawa at your disposal.
The Joint Chairman (Senator Hays): Mr. Epp.
Mr. Epp: Mr. Chairman, I think in fairness to our witness we should not prolong the time. If Mr. Hawkes has one question he wants to put, possibly he can hear it and I think we should close the session.
Miss Campbell: On the same point of order, Mr. Chairman, I did not hear you mention until just about 10 minutes ago that this was ending. Perhaps I would have made suggestion that some of the loquatiousness that we heard this morning could have been shortened and everybody could have had an opportnity to ask that one last question.
So it you are allowing one last question I would like to have one last question, too.
The Joint Chairman (Senator Hays): Well, I appreciate that. I think, as your Chairman, that we have to consider the Premier, I know that politically how he has decided to overcome this dilemma, nevertheless I also know some of his commitments.
Mr. Epp: Mr, Chairman, if it eases the position of the Chair, I think we should respect the commitments that have been made to the Premier and end the session.
The Joint Chairman (Senator Hays): Thank you. Are you agreed?
Some hon. Members: Agreed.
The Joint Chairman (Senator Hays): Thank you very much.
Then on behalf of the Committee, Mr. Premier and Mr. Romanow, I wish you a very Merry Christmas and a Happy New Year.
Mr. Joyal has some words to say at the end of this session.
Mr. Epp: Just before our Joint Chairman says anything, I think other than the Chairman as well, many of us would like to thank the Premier and Mrs Romanow for the testimony, and for those of us who come from the West, Mrs Premier, maybe all of us will be walking a long road trying to get home for Christmas. If you have any way to get home, let us know and that would be helpful to the Committee as well, but we want to thank you for your testimony.
Mr. Blakeney: Thank you very much.
The Joint Chairman (Mr. Joyal): Before we adjourn this Committee I think it would be appropriate that on behalf of Senator Hays and on behalf of all the honourable members of this Committee I extend the best wishes of the Committee to all the people who have made sure that in the last two months we have been in a position to sit effectively and to hear all the groups and work effectively, and I am thinking especially of the reporting staff and the translation group; I am thinking of the TV crew, lam thinking of the press, all the journalists who have been watching and listening to us very carefully.
I want to thank especially the Clerks and the Clerks service; the printing groups; I want to thank the research staff of the library, Mr. Peter Dobell from the Parliamentary Centre who has been at our disposal during more than 135 hours of sitting.
I would like to thank the messengers, too, of the House of Commons and of the Senate, and of course the officials who have maintained order and made sure that the room was properly heated and air conditioned so that we were not in a position to be exhausted too much.
So I would like to extend on behalf of all the honourable members our best wishes and we hope to see you on January 5 at’6 o’clock. Of course, next January, which is 1981, so the meeting is then adjourned to 1981 at 6 o’clock on January 5.
From the Government of Saskatchewan:
Honourable Allan E. Blakeney, Q.C., Premier of Saskatchewan.
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