Document Information

Date: 1981-01-06
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 32 (6 January 1981).
Other formats: Click here to view the original document (PDF).

SENATE
HOUSE OF COMMONS

Issue No. 32

Tuesday, January 6, 1981

Joint Chairmen:
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

RESPECTING:

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

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980-81

SPECIAL JOINT COMMITTEE OF THE SENATE AND THE HOUSE OF COMMONS ON THE CONSTITUTION OF CANADA

Joint Chairmen:

Senator Harry Hays, P.C.
Serge Joyal, M.P.

Representing the Senate:

Senators:

Asselin
Lafond
Lapointe
Lucier
Petten
Roblin
Tremblay
Williams
Wood—10

Representing the House of Commons:

Messrs.

Allmand
Beatty
Bockstael
Campbell (Miss) (South West Nova)
Epp
Fraser
Hawkes
Henderson
Irwin
Mackasey
Manly
McGrath
Nystrom
Tobin—(15)

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.O. 65(4)(b) of the House of Commons:

On Tuesday, January 6, 1981:

Mr. Robinson (Burnaby) replaced Mr. de Jong;
Mr. Henderson replaced Mr. Allmand;
Mr. Hawkes replaced Mr. Hnatyshyn;
Mr. Allmand replaced Mr. Corbin;
Mr. Rose replaced Mr. Robinson (Burnaby);
Mr. Manly replaced Mr. Rose.

Pursuant to an order of the Senate adopted November 5, 1980:

On Tuesday, January 6, 1981:
Senator Lucier replaced Senator Rousseau.

[page 3]

MINUTES OF PROCEEDINGS

TUESDAY, JANUARY 6, 1981
(56)

The Special Joint Committee on the Constitution of Canada met this day at 2:40 o’clock p.m., the Joint Chairman, Senator Hays, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Hays, Lafond, Lapointe, Lucier, Petten, Roblin, Williams and Wood.

Representing the House of Commons: Messrs. Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Crombie, Epp, Fraser, Hawkes, Henderson, Irwin, Joyal, Mackasey, McGrath, Nystrom, Robinson (Burnaby), Rose and Tobin.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. John McDonough and Louis Massicotte, Researchers.

Witnesses: From Vancouver People’s Law School Society: Diana Davidson, President. From Afro-Asian Foundation of Canada: Mr. Sebastian Alakatusery, Chairman and Dr. Carole Christinson. From The Canadian Connection: Mrs. Marion Dewar; Mr. Alan Clarke; Honourable David Macdonald; Ms. Mary Hegan and Mr. Lawrence Greenspan.

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. I.)

The witness from the Vancouver People’s Law School Society made a statement and answered questions.

The witnesses from Afro-Asian Foundation of Canada made statements and answered questions.

Mr. Joyal assumed the Chair.

The witnesses from the Canadian Connection made statements and answered questions.

At 6:30 o’clock p.m., the Committee adjourned to the call of the Chair.

EVENING SITTING

(57)

The Special Joint Committee on the Constitution of Canada met this day at 7:38 o’clock p.m., the Joint Chairman, Senator Hays, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Lapointe, Lucier, Petten, Roblin, Williams and Wood.

Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Miss Campbell {South West Nova), Messrs. Epp, Fraser, Hawkes, Henderson, Irwin, Joyal, Mackasey, Manly, Nystrom and Tobin.

Other Members present: Messrs. Berger and Rose.

[page 4]

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Messrs. John McDonough and Louis Massicotte, Researchers.

Witnesses: From Union of New Brunswick Indians: Mr. Graydon Nicholas, Chairman of the Board; Chief Albert Levi. From Union of Nova Scotia Indians: Chief Stanley Johnson, President; Mr. Stuart Killen, Research Director and Dr. Sageth Henderson, Legal Advisor. From the Progressive Conservative Party of Saskatchewan: Dr. Grant Devine, Leader and Mr. Robert Andrew, M.L.A.

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 witnesses from Union of New Brunswick Indians and from Union of Nova Scotia Indians made statements and answered questions.

Mr. Joyal assumed the Chair.

Dr. Devine made a statement and, with Mr. Andrew, answered questions.

At 11:47 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent

Paul Bélisle

Joint Clerks of the Committee

[page 5]

EVIDENCE

(Recorded by Electronic Apparatus)

Tuesday, January 6, 1981

• 1440

The Joint Chairman (Senator Hays): May I call the meeting to order, please.

Mr. Fraser: Mr. Joint Chairman, my colleagues have been delayed somewhat for a few minutes, and I wonder if I could crave the indulgence of the Committee by asking for a short postponement of the start?

The Joint Chairman (Senator Hays): We will yield to that. However, I hope that we do get started on time. After all, we called this meeting for 2:30 p.m. and it is now 2:40 p.m. and

we have a number of groups to see this afternoon and evening.

Therefore, if we could start on time it would greatly facilitate matters. I do realize that there may be occasions when we cannot be on time; but if we are going to call a meeting for 2:30, then I think we should start at that time.

Mr. Fraser: Mr. Joint Chairman, as a matter of goodwill and in the spirit of the season which has just passed, I would think that the sermon should be delivered to those who are not here.

The Joint Chairman (Senator Hays): That is probably true. I will see that that is done when we start. Nevertheless, I would like to start. I realize that we must wait sometimes, and

of course on those occasions we will.

Now, I call the meeting to order again.

This afternoon our witness is Mrs. Diana Davidson of the Vancouver People’s Law School Society. We are very pleased to welcome you here on behalf of Mr. Joyal and all committee members.

You may proceed with your brief, and I am sure after that there would be some questions from honourable members.

Mrs. Diana Davidson (President, Vancouver People’s Law School Society): Thank you.

I should like to begin by saying that it has been interesting watching you all come in, because I have been reading the transcripts and you have been materializing literally off the pages as you come in, and with very different effect from sitting reading over and thinking—well, this is all very exciting.

I thank you also for the snowstorm this morning. As you know, in Vancouver we do not have snow.

Well, I begin. I have come before this committee because of my involvement with the People’s Law School.

The purpose of the law school is to teach law to interested lay people free of charge. Many groups co-operate with the law school in effecting this objective. Lawyers and other professionals teach classes free of charge; schools, libraries, community centres, colleges, and other community organizations provide space free of charge, and newspapers, radio and television stations provide advertising.

The People’s Law School now provides free lectures in law in 70 communities throughout British Columbia. In addition, we have weekly columns available to all newspapers in the province and actually appearing in approximately 120 of them on a weekly or periodic basis.

In the lower mainland of British Columbia, where the bulk of the population resides, we have a weekly law talk television program and in addition we have extensive video programs

covering, at any given time, 15 to 20 topics. Video programs are circulated by the bicycling system through the cable television system of British Columbia.

We also present lecture courses in Punjabi and Cantonese. We have recently begun a program in Italian.

Many of our video programs are translated into other languages, including Cantonese, Italian, and Punjabi.

Our video programs and booklet series are available to all schools in the province and are available through colleges, and in addition, are available to any group or individual who wants them.

I had hoped that, prior to appearing before you, all proposals and concerns that we outlined in this brief would be discussed, multiplied and endorsed by a much larger number of our students and there would be a much larger number of organized groups throughout British Columbia than has been possible.

Upon our discovering the federal government’s intention and obtaining copies of the material, and after finding out the schedule set up for the Committee to report back to Parliament, we set up a conference in Vancouver, for delegates and groups throughout the province, the purpose of which was the proposed Charter.

Due to the time constrictions of the government schedule imposed on us, as on all Canadians, we were able to give only very short notice. Nevertheless, 70 delegates attended from throughout the province.

It had been our intention to follow up that conference with seminars throughout the province to which more delegates from each area would attend. The delegates attending both their first conference and the subsequent seminars would confer with the groups from which they came, report back to the seminars and send delegates to a further conference in Vancouver in January.

Though the further conference is now scheduled for January 25, we have been unable to have as extensive an input as we desired. However, at the first conference in Vancouver most of the points we raised here were discussed.

I also attended a conference in Naramata, a southern interior B.C. town, to which delegates from interior towns and cities attended; those delegates endorsed all our recommendations.

Seminars were conducted in Prince Rupert and another seminar in Terrace both of which were attended by delegates

[page 7]

from other groups though the attendance was small. These delegates also endorsed the proposals that we are presenting.

We have held also a seminar in the lower mainland amongst the Punjabi community.

We have received many enquiries from groups throughout the province. All groups and persons that we have spoken to have been unanimous with respect to the first few points that I wish to bring before you.

The first point is regarding time. The second is regarding the position of the provinces.

It has been our experience in the People’s Law School that people are interested in the law. The problem for the individual is to get accurate information about the law and about proposed new laws. Having obtained that information, it is often difficult and usually impossible to input into any legislative discussion in respect to the law or proposed new laws.

The proposed new Charter of Rights and Freedoms has not been an exception. The Charter has been, in fact, difficult to obtain. It is not, for example, stacked in heaps in the post offices and supermarkets of this country.

Once having obtained a copy, it has not been possible for the ordinary citizen to both inform himself or herself as to its implications and to find the means by which he or she can respond.

Not only does this frustrate the individual but more importantly, perhaps, it frustrates the opportunity to involve Canadians in a discussion, one result of which would inevitably be to assist in the unification of this country.

A second result might well be to enable Canadians to end up with a noble and inspiring document.

It is our understanding that this shattered Charter which we discuss here is the result of the alterations by the provincial governments to a more suitable charter prepared by the federal government and sent to the provinces.

All persons to whom I have spoken have indicated a lack of sympathy with positions taken by the majority of provinces. They have also indicated concern, and in many cases, embarrassment, with the apparent failure of the provinces to comprehend the global nature of the rights and freedoms which the Charter should seek to guarantee.

When Mr. Fairweather of the Canadian Human Rights Commission appeared before this Committee, he said in part that there should be a preamble referring to the International Bill of Rights as recognition that Canada is part of the larger world and saying further, referring to the ratification of the international covenants ratified by Canada, after all, Canada is by the act of ratification part of the larger world.

The rights and freedoms of the Charter should protect another rights and freedoms of the legislator or of parties from time to time in power. Rather, they are the rights and freedoms

[page 8]

of individuals and minority groups. Therefore, it is imperative that a system of discussion for arriving at a charter be set up so that all interested individuals and groups can input into that discussion.

Many of the provincial statements indicate that thus far the provinces have approached the discussion with respect to the Charter of Rights from the narrow perspective of their immediate provincial concerns.

In a sense, because legislators will lose some of their powers and individuals in minority groups will gain that power in the form of rights and freedoms that fetter and legislators, the provincial governments have been in a position adversarial to the interests of the people with respect to the guarantee of those rights and freedoms. Because that is the very nature of the struggle over this or any other charter of rights, it is imperative to fully take the opinion of the people themselves.

There is widespread interest amongst those people I have spoken to and Westerners generally to the forming of a constituent assembly for the purpose of arriving at a constitution and, in particular, a charter of rights.

I point out to you that in the Financial Post Western Business Section, December 27, 1980, Gordon Gibson indicated in his column that there had been a survey by the Canada West Association of 1,000 people, the result of which was 51 per cent would trust in ordinary people either through a referendum or a constituent assembly to arrive at the changed constitution.

With those points in mind it is requested that this Committee recommend that there be a lengthy extension of this debate; that there be a constituent assembly. Alternatively, that it recommend that this Committee travel throughout Canada. I should say, parenthetically with regard to this, that apart from the law school, I act as a lawyer and I am often a barrister, and I must say I have a great deal of sympathy for those people I stick in the witness stand after this; but the idea of people from groups coming all this way to face such a large number of inquisitors or judges, as it were, limits the possibility, even if they were not limited by time constraints—and people would feel more comfortable, for example, if you were to turn up in a small town in the interior of B.C.; they might feel a bit nervous appearing before you, but they would be comforted by the familiarity of their surroundings and the fact that they did not have to ditch all those near and dear to them and strike off on their own for Ottawa.

We feel such a discussion would inevitably enhance the commitment of all Canadians to the continuity of our country.

It is our view that the concern for a strong charter to adequately protect important interests and freedoms of the people is a discussion which will attract the attention and hearts of the people across the country in a way which the biculturalism-bilingualism debate did not, at least in the West.

[page 9]

This is more than ever a critical concern as the discussion in the West of separation moves from an occasional ironic remark in response to some particularly irritating decision of the central government, to a position discussed openly and frequently and even recently attributed to some western provincial politicians. It is not, incidentally, a position with which we sympathize, but it is a real problem.

Before going to the specific comments and recommendations with respect to the individual sections of the proposed Charter, I wish to say, that not only are the provisions of the draft inadequate, but the language, the mood if you like, of this document falls far short of the magnificence of spirit and intent which should characterize the restraint between the might of a country and its misuse against the individuals of that country.

Canada has often been haven for the oppressed and abused from other countries. We have rightly or wrongly the reputation of being a country characterized by justice and freedom. This document does not read as if it were the charter of a country characterized by its respect for our protection of individual rights and freedoms.

Closely read it is a duplicitous document that appears to give rights which it is worded to take away. I say “duplicitous” intentionally. I am not coming here as an expert, incidentally. But we have spent a great deal of time with constitutional law experts. We had two of them and a civil rights expert address the conference in Vancouver, and I would like to say that conference worked right through their luncheon hour and worked solidly for seven hours, where delegates got a breakdown section by section, the phrases that were in the section and the cases which they related to on civil rights issues and which turned on those phrases and cancelled the right. It was an extremely upset and disappointed group which left after that discussion and lecture.

• 1455

There is with the whole of the Charter the sweeping objection that it appears not to have a point of view, or to be addressing itself to questions which should be asked prior to drafting it. It does not appear to have been drafted with a mind to such questions as, “What are the traditional rights of our society?”; “What are the new rights that we have come to realize as necessary for the promotion and protection of fundamental human liberty and dignity?”; “What rights are we as a nation committed to by international agreements?”.

Looking at this document one can see that many traditional rights are not protected, many new rights and many rights to which we are committed by international agreement have not been included.

[page 10]

The second major objection is that it is relatively toothless. It provides some remedies for those who have lots of time and lots of money, but not effective access for those situations that are urgent or for those people who have not a lot of money. Moreover, there are no affirmative remedies provisions. That is, there are no provisions empowering an agency to seek out, educate, or bring to court violators, and deal with violations. I think that is very important because the human rights codes have had such affirmative powers and that has been an important aspect with regard to the enforcement of those codes.

It is important that the Charter of Rights and Freedoms be strong enough so that the rights and freedoms that it seeks to guarantee to minority groups and individuals can survive inevitable temporary sweeps of anger and consequent intemperance amongst the majority. Such temporary lapses from human dignity as preceded the internment of the Japanese during World War II, the expropriation of their property, which is of course, of particular embarrassment to those person in British Columbia and such has led up to the declaration of the War Measures Act in 1970, with its consequent suspension of civil liberties throughout the country and specifically, the internment and detention of persons in Quebec who were subsequently and to our permanent international shame, found to have been detained without cause.

Dealing now with the Charter by section, we are in agreement with all those groups recommending the deletion of Section 1. Our opinion is that there is a very real risk that Section 1 poisons the entire document and is in danger of rendering it ineffective. I should say, when I say “we”, I am referring to the delegates at the conference in Vancouver, the conference at Naramata and the tiny seminars in Prince Rupert and Terrace and those groups that have gotten hold of us. So far as I am able, I believe that the recommendations I am bringing to you have been endorsed by those with whom we have been in contact and given the time limitations, we have made really our best effort and have been in a peculiarly good position to make that effort to get the opinion of as many people as we could.

So we have taken the position Section 1 poisons the entire document and is in danger of rendering it ineffective, and so should be removed.

With respect to Section 2, the fundamental freedoms section, freedom of the press and other media should be enumerated separately from thought, belief, opinion and expression and the phrase “of information” in Section 2(b) and the word “peaceful” in Section 2(c) should be deleted. This section should include freedom to organize, freedom from economic deprivation and freedom to a clean environment. I will say more about those in a moment.

The last three—freedom to organize, freedom from economic deprivation and freedom to a clean environment, are not traditional rights but are rights which history has shown to be necessary. While we may forgive early drafters of bills of

[page 11]

rights for their failure to see that economic conditions can render one’s rights ineffective and barren, surely this is inexcusable in our own time. The legal aid program, for example, is testimony to our recognition that the right to counsel must, if it is to be a true right, include financial support for counsel when necessary.

The same could be said of access to medical services or access to education.

Surely the time has come to recognize that people in abject poverty, or poverty generally, are in a condition that no affluent society should allow. They are in a condition devoid of the very dignity and wellbeing that a charter of rights is supposedly designed to provide and protect. The right to a minimum standard of living is obviously a necessity if the other rights provided are not to be mere fancy for the impoverished of this country.

That absence of entrenched protection for union organizing is also disturbing. Interpretation of various doctrines of individual freedom can be used by the court to deprive workers of the right and power needed to organize. Such interpretation should be explicitly ruled out by a clear right to organize.

And lastly, environmental rights. Do I really have to make that argument in a province that it inundated with lousy water on the one hand and where it is collected it has PCBs in it. It is so terrible from our point of view, what is happening to this province with the acid rain and the PCBs in the Great Lakes chain. It is just terrible. Environmental issues have shown themselves to be all to subject to the vicissitudes of the moment and the urgency of short term gain. Neither the environment nor future generations can lobby for their protection. No issue more fundamentally underlies the nature of a national compact.

A country is not a transitory arrangement simply for the convenience of its present members. And that, I might say, is also an answer to the parliamentary supremacy argument. Because Parliament is supreme only in its continuity. The Parliament of the moment has its obligation to the past and it has to the future and so, with this business of environmental rights it is a dreadful situation in which we are going to pass over, for example, the Province of Ontario, devoid of all the little microbes that feed its fishes, etc., and poison us.

The constitution and our national environment are our link to the future and will provide the basis for the judgment of future generations. Some commitment to environmental preservation must be made in a Charter. Doing so will open up the courts to citizens who have long-range views and may give individuals and groups the kind of leverage against large corporations, the kind of leverage that current problems of legal standing prevent them from having.

With respect now to the democratic rights section, the phrase “real or apprehended war, invasion or insurrection”

[page 12]

should be deleted. Moreover, there is little support for the suspension of the right to vote contained in Section 4(2). The feeling is that once democracy is suspended temporarily, we run the risk of having lost it for good. Many have pointed out to me that at time of war the right to vote is even more important in order to provide a method by which we can signify our reactions to the way in which the war is being conducted. By way of example, I ask you only to consider the effect of suspending the right to vote in the United States during the Viet Nam War or in present day Israel’s numerous apprehended and real emergencies.

We join with the numerous other briefs that have severely criticized the legal rights Sections 8, 9, 11(d) and 12.

• 1505

We are in agreement with the proposals that have been made time and again before you that Section 8 be modified to “everyone has the right not to be subjected to unreasonable search or seizure”; Section 9 be modified to “everyone has the right not to be arbitrarily detained or imprisoned”; and Section 11 (d) be modified to read “not to be denied reasonable bail without just cause”.

We also support incorporating in Section 10(b) a provision such that those without funds will have independent counsel provided for them.

With respect to Section 12, we are in favour of it being redrafted to read “Everyone has the right not to be subjected to any cruel treatment or punishment”.

Section 7, the omnibus rights clause, leaves out many rights which have traditionally characterized our system, including the right to a fair hearing, the right to a public hearing, the right to a jury, the right to the use and enjoyment of private property or, in lieu of same, fair compensation for its loss. We are in favour of there being included in this section rights which we are bound by international covenants to guarantee, including the right to adequate health care and education.

Section 26 really forms part of the legal rights in that it is the remedy section for violation of those rights. It appears to prevent courts from punishing violations of the individual rights set out under legal rights by refusing to admit evidence illegally obtained. We recommend, first of all, that the courts be at liberty, if they see fit, to use that restraint, but other than that we recommend that Section 27 of the federal government’s summer draft be used to replace Section 26. I assume that you all have the summer draft.

We wish to say that with regard to the objection of the police to the alterations recommended by our group and by other groups to the legal rights section, it is important that clear guidelines be set for the police and other enforcement agencies in order to maintain public order by avoiding placing the police in unclear situations. It is desirable from the point of

[page 13]

view of public order to maintain respect for the police. Allegations, and in some cases admissions of police irregularities, illegal entries and other illegal activities, undermine respect for the police, and the police in frustrated response clamour for more power.

It is important to protect the status of the policy by making it clear what the policy may and may not do in order to end the loss of credibility that the police suffer from these embarrassing allegations and admissions, and to end the concomitant loss of public support for them.

It is particularly important that we not supply the police with a document which in effect says that they may violate the human rights with impunity.

Many times during the People’s Law School lectures students have indicated that they feel that there has been to some degree a loss of control of the police of this country by our government. There are many in this country who are in this country as a result of their own or their parents’ experience with an improperly restrained police force.

It is important to make clear to the police that the law which they have to enforce is also the law that protects the individual from abuses of power.

With respect to Section 15, the right to equality before the law and to the equal protection of the law without discrimination should be separated from the list enumerating proscribed forms of discrimination.

With respect to the list of proscribed discriminations, we ask that that list be greatly expended to proscribe discrimination on the basis of political affiliation, physical or mental handicap, sexual orientation, belief, opinion, expression and from discrimination on the basis of lack of means.

It has been suggested to me that there is a hesitation about including sex as one of the proscribed classes because it is desired to avoid the result that women are conscripted to war.

Now, that is one of the few rights that women have ever managed to get hold of, and I suggest that women are very willing to work so that men have that right, and did work during the Viet Nam crisis in the United States, to try and assist their fellow human beings, to wit the men, to acquire that right; but if the desire is to avoid the conscription of women, then rather than limiting the express proscription of discrimination on the basis of sex, include a section that women are to be exempted from compulsory military service.

Also, this section requires strengthening by making clear that the Charter applies equally to men and women.

With respect to Section 6, I am going back to Section 6 now, that section has generated a lot of interest, particularly from people in remote communities. And I should frankly tell you that I was raised in Powell River and Prince Rupert and have a special interest in remote communities as a result, and lots of friends living in them, and this has, as I say, generated a lot of interest.

[page 14]

Some compromise must be worked out between the interests of the residents of outlying areas and the interests of persons prepared to move to an area because of a particular job or because of a particular construction project. In that connection, 1 was interested in the submissions of the Honourable C. W. Pearson from the Yukon. Interested and touched, excited. Excited, to find that he had come and what he had to say and particularly with regard to the habits that can come out of those temporary swarms of people in and out of the community.

It can often create an impossible situation in which the people who are committed to an area are temporarily inundated with transient people who, when they leave, leave behind an upheaved economic situation and leave financial responsibilities for community projects which must be paid for by those remaining behind.

I understand that Newfoundlanders are also very concerned about those mobility rights.

We are taking no position with respect to the official languages or the minority language educational rights, other than to say that in this province it is to the disadvantage of Indian people that they are not able to use their own language in court. We support their right to be able to be tried in their own language and as far as possible within their own culture.

In British Columbia, the minority language problems that we have to deal with through the People’s Law School mainly have to do with immigrants who need easy access to translators and translations to facilitate their transition into our culture. I note that this Charter does not recognize the reality that we are a country largely of immigrants.

With respect to Section 24, we are in complete agreement with the native people of Canada that this is a totally inadequate protection.

In conclusion, it is important that this Charter be drafted in its final form by persons putting their minds to the long term concerns that this country properly has with the guarantee of democratic rights and freedoms, and the freedoms necessary for the individual minorities to buffer them against the power of the majority and the power of the state.

It is to be hoped that we, as Canadians, living during this time of the drafting of this Charter are to be spared the shame that a weak Charter could impose on us.

I point out that one of the tragedies arising out of World War II is the legacy of shame that those German citizens responsible for the atrocities of the Second World War have left to be borne by the German citizen of today, the innocent German citizen today far outnumbering the guilty, but all equally bearing the shame.

As I have already indicated, there is our own shame arising out of our treatment of the Japanese during World War II; in Western Canada, our treatment of the Chinese for many

[page 15]

decades earlier in this century; and what was done during the early 1970s to our fellow French Canadians.

This Charter, as it is proposed, would contribute to our international disgrace with respect to the state of rights in this country. It would permit foreseeable abuses. It would not prevent those abuses which we have not foreseen. Specifically, it would permit the internment of the Japanese or any other people. It would permit the stripping of property without compensation, it would permit searching, seizing, arresting and detaining of any persons with or without cause.

In conclusion, we would request:

1. That this draft be utterly abandoned;
2. That the federal government extend the time for explaining the implications of this draft Charter or any subsequent draft;
3. That the government make provision for the involvement of all persons who are interested in the country in this discussion;
4. That in the absence of government willingness to provide adequate time and forums for the involvement of every interested citizen in this discussion, that they take their original draft, together with the many wise recommendations from those groups with a humane and comprehensive concern for human rights, and improve that draft, and in light of that provide us with an honourable and powerful Charter of Rights.

That concludes my remarks.

The Joint Chairman (Senator Hays): Thank you very much, Mrs. Davidson.

Mr. Fraser followed by Mr. Robinson.

Mrs. Davidson: Oh, just one minute. Although I imagine I should be able to understand you very well.

Mr. Fraser: Mr. Chairman, I might start by saying that is the nicest thing a member of Parliament can hear from a constituent or a near-constituent.

Mrs. Davidson: Very near.

Mr. Fraser: On behalf of all the members here I want to welcome you and thank you for taking the trouble to be here. I know something of the work that your group is doing and I commend you for it.

I also have a riding which has a very high percentage of people who speak Punjabi and Cantonese and other languages, and I am very familiar with some of the problems which you have enunciated here.

Now, I just want to say something before I get into the specific questions. You have come here as a consequence of meetings with a great many Canadians and what you are telling us is that this proposal which is in front of this Committee is a flawed proposal, and you have also made a number of specific recommendations. You have not touched the amending formula and I will come to that in a minute.

However, I want to say to you that there are members here in the Opposition who, because we fought for more time, is the reason that you are able to even be here; secondly, we fought for the right of this Committee to travel and that was turned

[page 16]

down. Lastly, in the Progressive Conservative party we have called for a constituent assembly or some place where Canadians can get more input than they have had so far.

So your remarks are met by at least some of us with a great deal of sympathy, but here is a practical problem that I put to you: sometime next week there will be a number of amendments announced by the government. Some of those amendments will meet some of the objections and will be consistent with some of the suggestions that have been made by some of the witnesses, but there will be no place where the many witnesses who have appeared, and many other witnesses who would have liked to have appeared, will have a chance to take a second look at those new proposals, and the dilemma that some of us at this Committee are in, and which I have spoken about before to other witnesses, is that with the best will in the world, with the time constraints that are on us imposed by the government, I do not know how we can do justice to any but a few of the suggestions that you have brought in, and I do want you to understand that there are many of us here who are very conscious of that limitation on our ability to meet the detailed suggestions that you have brought to us.

Now, may I turn specifically to some things. You dwelt on a very broad basis on the question of rights, and I want to ask you this: can all those rights be put in this kind of a Charter given the time limitations we have got, and realizing that once they are in it is going to be hard to add to them or modify them, or are you talking really about a Code of Rights which would be far more embracing than anything that this Charter has even contemplated.

• 1515 

Mrs. Davidson: Well, I am not talking about a code of rights. I realize that the time problem is virtually overwhelming. But the problem that we face now, where we do not have an entrenched charter has made the civil liberties situation really a disgrace.

So even though there is very little time, it seems to me imperative that it be more than a broad general statement of rights, and that it has to be enumerated with care—that is, the rights, particularly those rights which have been spoken to by the different groups.

I have not read all the transcripts, but I have read many of them; it seems to me that there is a rather narrow area of disagreement with respect to rights.

The legal rights sections basically, with the exception of the objections of the police and Crown counsel associations, of the ones I have, there have not been any major or serious objection to modifying those.

So if you say we are looking at planning time and you say that basically we are in agreement with chucking out Section 1 and beefing up Section 2; mobility rights is a complicated matter and will require time and people taking up time and those; Sections 7, 8, 9, 10—the right to have paid counsel,

[page 17]

11(d) and 12—with those there is no real serious argument amongst people who are taking a broad look.

I do not think there would be any objection with the police if they fully realized—which they have incidentally begun to do with programs such as the Neighbourhood Watch programs— what the law and order situation can be when you have got everybody on your side.

So let us say that that is not really a problem.

With regard to Section 15(1), it looks on reading it, that people are more or less in agreement that the rights be put in a separate section.

Then the argument begins about whether there should be enumerated groups or whether there should not be. That requires time spent on it with study.

Native rights will also require time; the remedies section, I do not recall any serious proposal with regard to keeping that present one.

So it really boils down to three or four hots spots.

I am very much in favour, because I come from the West and I think it is not realized here how much western separatism is on the move, and what a wonderful thing it is to involve people in such an important thing as actually drafting the social contracts under which they are going to live.

It is the most exciting thing that is going on in any western country today! I think that the job you people have—most people who have appeared before this Committee would have given a couple of right arms and the rest of their life expectancy to be on this Committee.

When you think of Jefferson, who was personally disreputable as an individual, yet getting the wonderful chance to be involved in the greatest thing that was happening: It is such a wonderful thing if we could get everybody involved it would be wonderful. People say people are not going to be interested.

Well, we have over 20,000 students a year who come to courses which give no credits which they could use in any academic program or with relation to their job, but they come because they want to know.

The video programs are very well watched and people are very curious and want to know. On this matter, any group which is half informed is dying to get involved.

So it is a big mistake the government is making—a big opportunity going down the tube if they do not give more time.

But if they do not give more time—and I do not want us to get our throats cut in both directions. We do not get to input and we do not get the rights, in other words.

If they do not give us time to input, then, it puts on you the job of isolating the hot spots and getting experts in and sitting

[page 18]

down and sifting through these briefs and coming up with the exact document.

It is very much like an emergency operation. If somebody has a big hole in the middle of their chest in the middle of the battlefield, you may not just generally plug it because it still requires that degree of precision for it to work. That is what it is going to take from you people. You have to be precise no matter how you are harried.

Mr. Fraser: We will do the best we can, given the constraints which are upon us.

You have talked about the individual rights side of this proposal.

You have said nothing about the provinces and legislatures within the Canadian family. This document affects those rights in a very profound way.

I am wondering if your group gave consideration to that. You have said nothing about it in your presentation except to point out what some of us have tried to point out in the past, namely, that there is increasing alienation in our part of Canada.

Mrs. Davidson: That is right.

Mr. Fraser: We have been criticized for mentioning that around here, but you have come at it from quite an independent point of view.

Mrs. Davidson: It is almost becoming an emergency and very embarrassing.

Mr. Fraser: I wanted to ask you whether there was a reason why your group and your conferences did not attack the problem of the amending formula, what kind of partnership should exist between the federal government and the provinces; the whole question of why, for instance, in western Canada, there is so much opposition to aspects of this document, not just from a point of view of the flawed Charter, but also from the point of view of the shift of power to the federal government and the amending formula?

Mrs. Davidson: Well, we did not discuss the amending formula. I am responsible for that, because I accidentally ended up at a Canadian Human Rights conference on this Charter, and it was only then that I realized really what was going on.

We had a little bit of time and a little bit of money and we had access to these constitutional law people. To be perfectly honest, it was an easy decision because I was so concerned about the Charter that I decided that we would use the time we had to concentrate on that aspect of the matter.

But if we had more time, we would be happy to concentrate on the whole thing. We would be really overjoyed, because it is such an exciting thing!

Mr. Fraser: Thank you very much, Mrs. Davidson.

[page 19]

The Joint Chairman (Senator Hays): Thank you very much, Mr. Fraser. Mr. Robinson, followed by Mr. Mackasey.

Mr. Robinson: Thank you, Mr. Joint Chairman.

I, too, would like to join with my colleague, Mr. Fraser, in commending the excellent brief, the excellent presentation; and, also as a British Columbia member of Parliament as well I would like to commend you on the outstanding job you are doing in British Columbia in extending legal knowledge in many cases to remote areas of the province, using video tape and holding seminars and doing really an essential job on what I know to be a very limited budget.

I would also like to commend you on the brief which you have put together. I know that many of the contents of the brief reflect some of the concerns which have been expressed at the various seminars which you have held throughout the province in a very limited amount of time.

When one considers the limited amount of time you have had at your disposal, it is very understandable why you were not able to get into other areas such as the amending formula and other areas, simply because there was not adequate time to deal with them.

On a rather personal note, I would like to say that I very much appreciate your zeal and enthusiasm for our task. I happen to be one of those who shares that, and we are very fortunate to be involved in this process now, and I hope that all of us want to see the very best possible Charter emerging from this and we would be looking forward with great interest to the amendments which the Justice Minister intends to table, I understand, early next week.

I share the concern expressed by my friend, Mr. Fraser, that many of the groups who have submitted their briefs and who have appeared before us would not have an opportunity to respond, at least before this Committee to some of the amendments which are proposed.

I would like to turn to some of the specific recommendations which we have made in your brief. It is a very comprehensive brief, and of course, with the limitations of time I would only be able to touch upon a couple of them.

One of the areas which has been pointed out by a number of witnesses both in writing and in personal appearances before the Committee, is the inadequacy of the remedies section, really the lack of any remedies section here other than Section 25 which renders inoperative any law which is in conflict with the provisions of the proposed charter.

Perhaps you would like to expand on the reason why you think it is so important that there should be a remedies section in the proposed charter similar, perhaps, to that contained in the summer draft, although there are defects in that as well.

[page 20]

Why is it so important that there should be a remedies provision? Perhaps you should tie that into the question of Section 26 and the lack of any effective remedies section for violations of the rule, of the charter, in obtaining evidence. Why do we need these remedies sections specifically?

Mrs. Davidson: I think the judiciary should be in a position to control the obtaining of evidence in an illegal fashion, by a means that is straight forward.

I am an officer and I obtain evidence by violating your rights, and the evidence cannot go in, I have no difficulty in future in understanding that I must take the few moments it takes to get the search warrant or to read you your rights.

But if I know that, no matter how many times I do that to you, the judge may not restrain me. That does two things; one, I am not going to be too particularly concerned because I am a goal-oriented individual, and I am going to stomp on you slightly; secondly, I am going to learn the lesson that in some ways I am outside the law.

Now that would be fine if it just ended there, because it would make you uncomfortable and me wicked. But it does not end there. What has been happening in Canada and elsewhere is a widespread distrust of the police.

You simply cannot have enough police to stop the people if they will not be stopped. So, you have to have their complete cooperation and confidence. That is why it has to be in there.

The straight forward remedies section of having an agency whose job it is to go and interview people, and say “Look, I understand that you have been doing this, that and the other. Well, the law is such and such and I really wish you would not,” and you can have an educational program and get rid of it that way—that has been effective to some extent with the human rights code, and it would have been very effective with those if the opportunity to get into court, if that does not work, were more widely available.

Mr. Robinson: Presumably, you would also agree that merely rendering a particular law inoperative would in no way affect illegal action on the part of the enforcers of that particular law, and that there has to be some remedy beyond just rendering the law inoperative?

Mrs. Davidson: And the law is always that way. You flood out your neighbours backyard, by getting rid of the water out of yours; then you knock down his retaining wall, so you bring it down on yourself and that is the whole idea. That is what finally comes with those recalcitrant individuals who would not just be decent to their neighbours. That is what stops them.

Mr. Robinson: Now turning to your comments on Section 15, the proposed antidiscrimination section, as you have

[page 21]

indicated there have been basically two trains of thought with respect to this section.

There has been general agreement that this section, as presently worded, is inadequate; certainly, if we go by the witnesses who have appeared before us.

There have been two suggestions: either we expand the prohibited grounds contained in Section 15(1); and, alternatively, if that is not possible, that we eliminate the narrow grounds which are contained in Section 15(1) and just have a general prohibition against unreasonable distinction.

Mrs. Davidson: Yes.

Mr. Robinson: Would you like to comment on the legalities on either of those routes, and secondly, perhaps you might like to comment on this. I understand you have read some of the transcripts, and if you have read some of the discussions with respect to some of the additional grounds which might be contained, the handicapped, political affiliations or sexual orientation, do you have any particular comments on some of the concerns which have been expressed with respect to those additional grounds which might be added?

Mrs. Davidson: If it is the intention of this group and the others, whoever they may be who will be working on the final draft, really to protect people—and it should be—then they should say so in clear terms because we cannot rely on the judiciary to do it for us. That has been clear.

With regard to the addition of these grounds, first of all, with regard to political affiliation, it makes little sense to have a protection in Section 2, and no protection in Section 15.

With regard to the physically or mentally handicapped, it is not possible to represent ourselves as civilized people when we have that large group of persons who are excluded.

We have just prepared, with the law school, a very powerful film on the handicapped, and the young man who opened it, the president of the paraplegics association, and who closed the program, is such an incredible fighter, and he, in addition to other fights, fights for every word, and said at the end of it “I do not want to be taken care of. I want to take care of myself.” That is very, very moving! It is a totally outrageous situation that we do not have that protection in there.

• 1535

With regard to sexual orientation, I read over, and I do not know—the honourable Bryce Mackasey is here and he is the one I wanted to speak to. Now, I should say that I always thought you came from Prince Rupert, first of all, when you first got elected.

Mr. Mackasey: I have been all over the country but I have not lived there.

Mrs. Davidson: I know, but you had that sort of shoot-from-the-hip when you first got elected.

Mr. Mackasey: I had a healthy look.

Mrs. Davidson: That is right, you had a healthy look and you looked as if you might be fishing.

[page 22]

An hon. Member: He runs all over the country.

Mrs. Davidson: I was worried because your objection, you had a certain I think a confusion that I worried and worried about because certain people have a certain image and I felt that I would not be uncomfortable, that if Bryce Mackasey could survive in Ottawa, I probably could live there too because there are certain kinds of shoot-from-the-hip people.

Mr. Robinson: Mr. Chairman, I hope this is not coming off my time.

Mrs. Davidson: What I wanted to say was I looked at this thing and I spent about two or three days worrying about your objections and comments and I finally concluded that this is the difference, that you have long experience with the school system that is the Catholic school system and my experience is totally with the public school system; so once I got that straightened out in my mind then I realized this, and what I am speaking to is the objection that if sexual orientation is in here it somehow programs onto having it taught or referred to as a desirable lifestyle in lifestyle training courses in school. Then I hope to be able to say this to you. The public school system, at any rate, is not a value school system. That was partly my difficulty; that was your difficulty and it was my difficulty because I did not understand how you arrived at that and I could not because I went through the public school system. So I though that would take care of that.

It seemed, other than that, the statistics are all different with regard to the number of people that the inclusion of the discrimination on that basis would be of interest to us as a country but it would be of interest, of course, to those persons whose sexual orientation is not heterosexual and the statistics with regard to that is that that involves a group of anywhere from 8 per cent to 35 per cent of people; but even if you take the 8 per cent they also have parents and brothers and sisters and husbands and wives and children and so on and it is desirable not to have some sort of discussion going on in schools advocating a certain sexual behaviour; but it is desirable to avoid the situation where you have a person who is making a wonderful contribution and all of a sudden an irrelevant detail about their personal, private life is used to discredit them and deprive the community henceforth of their contribution.

In any event, this is a Charter of Rights and I cannot say that it is covering the minorities when it leaves out such a large minority.

Belief, opinion, expression, that seems obvious. Lack of means, now, there were many antipoverty groups at the Naramata conference, and we have been contacted by various antipoverty groups throughout, this lack of means affects women more than it affects men but it also affects men. It affects retired people. It seems that it is simply wrong, it is even wicked to exclude the very many people who live at or below the poverty line from protection.

[page 23]

Mr. Robinson: Mr. Chairman, one very brief final question, if I may.

The Joint Chairman (Senator Hays): Yes.

Mr. Robinson: You have indicated in the course of your presentation that there are a number of areas in which you want the Charter improved.

Mrs. Davidson: Yes.

Mr. Robinson: I think you would recognize that this greatly expands the role of the Canadian federal judiciary. I wonder if you might just comment on any other possible changes you might like to see as a result of this expanded role of the judiciary looking, for example, at the appointment process, perhaps the training process.

We have had perhaps in recent years a fairly nonpartisan record of judicial appointments, although I noted, Mr. Chairman, I might just say in passing that the three most recent citizenship court judges were a former Liberal Cabinet minister; the wife of a former Liberal Cabinet minister; and the

Secretary to a former Liberal Cabinet minister; so one would perhaps express some concern about that particular record of judicial appointments.

In any event, you might want to comment on the role of the federal judiciary and any possible changes that might be encompassed as a result of their expanded role.

Mrs. Davidson: I now free the People’s Law School and every single person in the whole of B.C. or anywhere else from the following: this is my opinion only. Lawyers are a poor group from whom judges should come.

Some hon. Members: Hear, hear.

Mrs. Davidson: It is not obvious to me on the basis of my own legal training that there was anything in that training, either in the tests to see if I should be trained or in the training I received, that would fit me to judge anything. So it is a miracle that we have as good judges as we do but one cannot rely on an unbroken succession of miracles and we should have a system that, first of all, checks out the person, not just what they say but what is going on, what biases and so on they have. It should be obvious to everyone how they are appointed and it should be in a correct and approved fashion and it should be renewable. Imagine, you appoint someone a judge and for 30 years you have someone who should not have been appointed a judge making decisions so that the whole judicial process is in disrepute, and we need not even think about it to know how one embarrassing revelation can colour the whole situation. So with regard to judges, the murkiness with which they are appointed, the confusion about how you can review them, the lack of training, the lack of checking about suitability, all those things need to be gone into.

Mr. Robinson: Thank you, Mr. Chairman.

[page 24]

The Joint Chairman (Senator Hays): Thank you very much.

Mr. Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman.

On behalf of my party, welcome to our Committee.

Mrs. Davidson: Thank you.

Mr. Mackasey: I would agree. I am very pleased particularly at this time of year that you have taken the trouble to come such a long distance.

I was very interested in your presentation. I do not know why the laughter, because I was, I found it very progressive.

Mr. Nystrom: It was.

Mr. Mackasey: And I hope revealing that that the Opposition’s position on these matters is still very much in abeyance.

I want to say to you when we first met here some few weeks ago, maybe months ago, there was no consensus around this table as to whether or not there would be a Charter of Human Rights included in the constitution. There was a valid argument made and references made, for instance, to the British system and some feeling that perhaps we should stay closer to that concept than, say, the American.

I think it is to the credit of the witnesses that the evolution of our own thinking, which is not along party lines or partisan lines, is that I have seen considerable shift in the position of some of the members opposite and I am sure they have seen some considerable shift perhaps in my own thinking. I do hope that out of this process we will come up with a good constitution or resolution.

On the issue of sexual orientation, I can just refer you to my testimony when, to one or two witnesses, I emphasized that I was within the Quebec National Assembly when that province adopted what I think is the most progressive Human Rights Code of any of the provinces. The Parti Québécois has been a good government in this particular field and I was in that Assembly when the whole issue of sexual orientation was raised and I am pleased to say that I voted with their concept and was interested, incidentally, in the review of that some weeks ago in one of the Montreal newspapers showing that it has been a progressive move, not eliminating all of the problems …

Mrs. Davidson: But eliminating some.

Mr. Mackasey: … in the work place, but at least some of them.

I too would like to see more time but you said something very significant. You talked about emergency operation on the battlefield and hoped that we do not do that. In many ways, if you are right about western alienation, about the growth of separatism, it only strengthens my belief that what we are doing is overdue and that view comes from my concern which you stress, you mentioned I think, where you state the provinces have been too narrow in their thinking. I think that

[page 25]

would exemplify to all Canadians who watched the last federal-provincial conference. Would you care to comment on that?

Mrs. Davidson: Yes. Again, I will say this that all the people at the conferences or who have seen that were equally embarrassed and irritated. I only saw a bit of it, fortunately. I turned it on and there was an actual provincial Premier saying that he was not in favour of freedom of religion on the grounds that when he spends his Christmas vacation in the States he is offended by the stores being open.

Mr. Mackasey: I think that was the Premier of Saskatchewan, if I am not mistaken.

Mrs. Davidson: I cannot remember which one it was, but I suspect it was. That was one of a number. I watched that whole noon. We received phone calls from friends in the United States, Eastern United States, that night saying what on earth is happening up there, and my husband said, rest assured, you cannot tell how it is going up here by what people are saying, it is a very wonderful country and we will straighten this out later; but it was amazing to me and I felt the first really powerful surge of sympathy for Prime Minister Trudeau that I had felt since some years ago when I was very sympathetic to what he was doing and I felt somebody should take that poor man and hug him better because he was sitting there with people who did not have the first idea of what he was talking about. It was an international disgrace. It was enough to make a person cry; it was sickening.

Mr. Mackasey: And there has been nothing in that time interval that would leave me with the impression that another round of provincial-federal conferences would accomplish what escaped us last fall when coming right up to the referendum in Quebec, Canadians sanctimoniously right across this country talked about all the concessions they were prepared to make to the French speaking community in their various provinces. Suddenly, all that good will has dissipated so we have no choice but to act as we are acting.

Mrs. Davidson: You have no choice as long as there are important public people in Canada who are prepared to be on international television saying things which—I do not under-

stand; I can honestly tell you I have not met or spoken—and I have been speaking of nothing else but this for two months—I have not met or spoken to a single person who is not personally ashamed of what happened at that conference. How it happened I do not know.

Mr. Mackasey: Let me ask you, just to get it on the record very succinctly, are you in favour of patriating the constitution?

Mrs. Davidson: Yes.

[page 26]

Mr. Mackasey: Are you in favour of an amending formula of some kind in there?

Mrs. Davidson: Obviously there has to be an amending formula.

Mr. Mackasey: Fine. Are you in favour of the enshrinement of a Bill of Rights?

Mrs. Davidson: Yes. Everyone we have spoken with is agreeable to this happening, that it be entrenched.

Mr. Mackasey: Right. Now, there are logical differences, bound to be, as to what should be entrenched and what should not be.

Mrs. Davidson: That is correct.

Mr. Mackasey: For instance, in Section 1, you have suggested that it be deleted.

Mrs. Davidson: Yes.

Mr. Mackasey: And so have many other reputable witnesses.

Mrs. Davidson: Right.

Mr. Mackasey: On the other hand, some of the Premiers, Premier Blakeney, has talked about the danger of deleting Section 1. Other creditable witnesses have suggested that we not delete it but that we amend it. Therefore, it is obvious that whatever we do to Section 1, and we will, somebody will be happy and some people will be unhappy. Is that a fair assumption?

Mrs. Davidson: It may be a fair assumption but with all due respect what is relevant is a different question. Whatever section is in place of it, the only question is does it take away the rights that that Charter is setting out?

One of the things that happened at the conference, the delegates, the constitutional law experts explained the effect of the actual wording section by section. It really broke their hearts because it is one thing to have your government pass some lousy legislation that is obvious and you hate it. It is another thing to have proposed to you something that you did not notice is full of booby traps and Section 1 as it is now has got—who knows what is going to happen—so if we are serious about the Charter out it goes and whatever comes in its place must be very certain it is not going to poison the document.

Mr. Mackasey: In any event, I am just using that as an example that Section 1 will be amended or deleted. Something will happen to it. I am really saying that whatever we do will satisfy some people and not satisfy others.

You talk about constituent assembly and a lot of people have. Who would form this? How would it be formed and what would make it more relevant than the cross-section of people who are here?

Mrs. Davidson: The reason it is more relevant is in its own way we are again at this exciting moment of the social contract and the people who are actually looking at it or are

[page 27]

going to decide about it are the legislators themselves and they are the very ones whose powers are being restrained. It is appropriate that there be a group, a geographically elected group…

Mr. Mackasey: I am going to be rude here, the Chairman is making noises, I can see—mental telepathy, I know I have gone over my time. I just want to draw one other section to your attention and that is Section 33.

Mrs. Davidson: Section 33.

Mr. Mackasey: Without you getting into it, it provides an opportunity, a last opportunity for the governments of the provinces and the federal government over the next 24 months to sit down and do exactly what you suggest it should be. We have time; we have 24 months to improve on the Charter that comes back from England; we have 24 months to improve on the amending formula that is included; we have 24 months to give the Charter the kind of scope and breadth and hopefully include a preamble at that stage that would do justice to a constitution of a country such as ours.

I am just wondering what you would do to impress on Mr. Bennett the golden opportunity over the next 24 months to do some of the things that you suggest should be done for the good of this country.

Mrs. Davidson: I do not know what Mr. Bennett’s opinion is about the Charter and I think it is possible that because of this discussion—really what anybody who wanted to know what this is about they can start in the first transcript and read to the end. They will become educated in this area. I do not know what else you can do.

Mr. Mackasey: Fine.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Mackasey.

You have a short question, Mr. Epp?

Mr. Epp: Yes, Mr. Chairman, I do. I would like to ask the witness, I was somewhat surprised at her description of the partners of Confederation, namely the premiers, putting for-

ward their positions at the First Ministers’ Conference. I would like to ask you, are you familiar with the polls the federal government has done on public perception after the conference?

Mrs. Davidson: No, I am not. The only thing I know about that conference is my own reaction and the reaction of other people who simply could not believe their ears.

Mr. Epp: I appreciate that. You put the caveat that it is your reaction and people that you spoke to.

Mrs. Davidson: Yes.

Mr. Epp: Because before you said you had not found any Canadian yet who had a different opinion, and you are talking to one right now.

Mrs. Davidson: All right.

Mr. Epp: I just want to indicate that the poll, that is the government’s poll itself indicated that of Canadians who had seen that conference 20 per cent felt that the Prime Minister had been more open-minded than the premiers; 40 per cent felt

[page 28]

that the premiers had been more open-minded than the Prime Minister.

Mrs. Davidson: I do not know who is more open-minded. What broke my heart was not whether they were open or closed, it was that somehow it could be that they did not even understand what was being discussed. It got mixed up with oil and gas and so forth, that the human rights for the individuals were all mucked up and who was going to get the control of resources. I was horrified by that. Those two should not be in the same bed together. That is very inappropriate.

Mr. Epp: I appreciate your point of view. The problem was, I think, partly the federal government’s mixing the two between economic rights and the powers over the economy and human and personal rights.

Mrs. Davidson: I do not really know what any of them were doing. I only know what they were saying when I was watching and what the newspaper reported them saying and there seemed to be a general confusion that somehow my rights as an individual could be bargained away in exchange for control over resources; and that is not appropriate. That is not in the tradition of human rights and it is inappropriate to the western tradition of concern with human rights.

Mr. Epp: You are entitled to your own conception. I do not think it is the correct conception of those who viewed the conference but rather that rights stood quite apart by themselves and should not be mixed together with oil, fish or whatever. The position I just want to put to you is that there are quite a few Canadians who saw the conference quite differently from what you did.

Mrs. Davidson: I am sure there are. I say nothing about the persons to whom I have not spoken and as you say, you have a different view of it.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp.

Do you have a short question, Senator Williams?

Senator Williams: Yes, Mr. Chairman.

First I want to commend the witness as she comes from Prince Rupert and I used to live in Prince Rupert at one time. I spent a great deal of time there years ago.

Your reference to Indians not being able to use their own language in courts, I think that is one of the contributing factors. I was a member of the Parole Committee of the Senate and I found that from Manitoba to British Columbia there were times when 56 per cent of the inmates were our Indian people.

But I do see difficulties. In British Columbia alone there are nearly 40 dialects. I originally come from Kitimat. I left there in 1944. There are parents there today who do not speak their own dialect, many of them, and this is repeated in many other reserves. Personally, I cannot see where there will be enough people to supply the need.

[page 29]

The Joint Chairman (Senator Hays): Thank you very much, Senator Williams.

I should like to, on behalf of the Joint Chairman, Mr. Joyal and all the members of the Committee, Mrs. Davidson, to thank you very much for being here this afternoon representing the Vancouver People’s Law School Society. We appreciate your being here and we look forward to your leaving the brief with us so that we can use it in the clause-by-clause study of the resolution.

Thank you very much for being here.

The next group we have are the Afro-Asian Foundation of Canada represented by Mr. Alakatusery. If that group will come forward we will continue with our proceedings.

The Committee might be interested in a few statistics. Not counting the last hour, we have now sat 143 hours and we have met 84 groups.

Mr. Beatty: Mr. Chairman, could I just ask perhaps leading on from the statistics you gave, how many other groups or individuals prior to the revised deadline were asked to appear but will not be given the opportunity to, because I think it is perhaps germane as we look at the numbers from whom we have in fact heard.

The Joint Chairman (Senator Hays): Well, as of January 5 there were 481 groups wishing to be heard, and individuals.

Mr. Beatty: I am sorry, how many of those have you said that we have heard today?

The Joint Chairman (Senator Hays): We have heard 84 groups.

Mr. Beatty: And how many more are scheduled at present?

The Joint Chairman (Senator Hays): Maybe you would be interested in some more statistics.

Making written representations in the form of briefs, telegrams and letters and so on, we have had 150 groups; 606 individuals, making a total of 756.

The number of briefs and written representations received, that includes submissions filed by those wishing to appear, there is a total of 977.

Mr. Beatty: Then in total am I correct in saying that of the groups and individuals who have written this Committee asking to appear we will have heard, by the conclusion of our hearings, probably fewer than 25 per cent?

The Joint Chairman (Senator Hays): Yes, I would suppose in that neighbourhood.

Mr. Beatty: Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Now, on behalf of the Joint Chairman Mr. Joyal, and the Committee, I should like to welcome the Afro-Asian Foundation of Canada ad Mr. Alakatusery who is the Chairman, if you would introduce your colleagues and then make you presentation?

[page 30]

Mr. Sebastian Alkatusery (Chairman, Afro-Asian Foundation of Canada): Honourable Chairman of the Senate and House of Commons Special Joint Committee, let me introduce my colleague Ms. Carole Christinson, and Mr. Justin Teji, both of them are directors of our Foundation.

Our Foundation has 27 affiliated associations of various Afro-Asian descent. We have associations affiliated with us, the Japanese Association of Montreal, the Vietnamese Association of Montreal, and associations from India, associations from Bangladesh, Ceylon and also from Arabian and African alliance of Quebec.

So we have in total 27 organizations and 183 members in this organization working so far.

To the Special Joint Committee of the Senate and the House of Commons on the constitution of Canada, considering the document entitled Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada, we have the honour of witnessing before the Committee on behalf of the members of the Afro-Asian Foundation of Canada. We wish to express our gratitude in having been invited to testify before this Committee despite the lateness of our request. We are honoured to take part in this most historic event, and we recognize your invitation as an expression of your concern about the plight of Afro-Asian Canadians.

We also wish to express our appreciation to the Right Honourable Pierre Elliott Trudeau, the Prime Minister of Canada, and his Government for their courageous effort to patriate the Canadian constitution. We endorse the aim of the government to patriate the constitution with an enshrined Charter of Rights.

The need for a Charter of Rights that is carefully worded and which provides strong measures for enforcement, is widely recognized by members of minority groups across this nation.

The Afro-Asian Foundation of Canada was founded in March of 1980 for the express purpose of encouraging co-operation among the many organizations representing people of African and Asian descent. A major goal of our Foundation is to promote greater understanding among all Canadians through programs that would enlighten and inform the general population, as well as the bodies politic, of our historical plight and present day concerns as minority Canadians. It is with this goal in mind that we appear before the Joint Committee today.

Let me explain some of our historical background. The true original Canadians were the Indians and the Inuit, who are themselves believed to be descendants of the Asian continent. In its present form, Canada was, however, settled by peoples of predominantly French and British origin, leading to the concept of two founding races. The difficulties which this two nation concept has wrought for that quarter of the population which is of neither British nor French origin have been duly recognized in the 1969 report of the Royal Commission on Bilingualism and Biculturalism, Volume 4.

[page 31]

As stated in that volume, page 6, most immigrants of non-French, non-British origin would prefer to consider themselves simply Canadians without becoming embroiled in the process of choosing between the two societies, with all that implies. Non-white Canadians have, indeed, suffered injustices under the colonial policies of both the French and the English, in their countries of origin; that is, on the Asian, African and South American continents as well as in the Caribbean.

Furthermore, painful experiences have been endured by Afro-Asians on Canadian shores since this country became a modern nation. We are here referring to such acts as: the enslavement of Panis, native Indians; and negroes, blacks, under French and British rule; the evolution of an immigration policy which for years effectively barred Afro-Asians and sought to maintain Canada as a refuge for white and, preferably Northern European, immigrants; and the formal and the informal practices of institutionalized racism that have limited the life chances and opportunities of Afro-Asians in all facets of Canadian life; for example, the Chinese Exclusion Act of 1923; the segregation of blacks from whites in Nova Scotia and Ontario; the evacuation of the Japanese in British Columbia during World War II; the sad plight of our native people on reservations. Neither of the two founding peoples have recognized the significant contributions of non-white Canadians to the development of this nation since its very beginning. Rather, the two nation concept continues to relegate nonwhites to a peripheral position in our society.

As a result of the educational process, our children, white and nonwhite, French and English, are left with the impression that those of Asian and African descent are all newcomers to our shores. For example, most French Canadians have not been told of Samuel de Champlain’s indebtedness to Matthew de Costa, the black crewman whose linguistic skills allowed him to act as interpreter of the native Indian language when the Jonas landed in Nova Scotia in 1606.

The settlement of Western Canada by blacks in the 1700s and 1800s is a little known fact of Canadian history. Despite the building of the railway by Chinese and Japanese workers in the 1850s, their present day descendants are often regarded as foreigners.

In the time allotted, it would be impossible to list the many significant contributions that have been made by Afro-Asian Canadians. However, a number of written works are readily available for the enlightenment of concerned persons.

Present Conditions.

Because most Canadians mistakenly believe that immigrants who are descendants of Third World countries take from this society more than they give, prejudice and discrimination continue to plague our children on all fronts; they are often stereotyped, ostracized, victimized and ghettoized. Although they feel alienated from the historical antagonisms between the English and the French, their desire to develop a truly Canadian identity is held in check by a system of white social values which keep them apart from the socioeconomic mainstream of Canadian life.

[page 32]

Nonwhite Canadians continue to suffer discrimination in education, employment, job promotion, housing and recreational facilities, as well as unequal protection by law enforcement agencies. As he migrates from one province to another, the non-white individual’s rights and protection may vary according to the provisions of provincial legislation or the lack thereof. Moreover, few representatives of nonwhite groups are to be found as appointed or elected officials in governmental and other decision-making bodies.

The recommendations which we are presenting to you would allow the federal government to exercise a position of leadership in helping to redress this most unhealthy situation.

The patriation of the constitution with an entrenched Charter of Rights would be a most important step in the direction of building a truly egalitarian multicultural society.

Ms. Carole Christinson (Afro-Asian Foundation of Canada): Very briefly, some of the underlying considerations which we thought of when we were presenting the recommendations to you will be discussed.

We, Canadians of Afro-Asian origin, represented by the Afro-Asian Foundation of Canada, recognize that the concept of two nations expresses the reality of an historical period in Canadian history; however, the two nation concept is no longer adequate to express the reality of the present situation or the position to which Canada aspires in the world of the future.

The Canada of today is a country consisting of inhabitants from diverse origins whose interests, aspirations, hopes and dreams must be considered in any attempt to patriate and amend the constitution. Canada must be recognized as the homeland of all people who have chosen to live, work and help build the future of this country.

There is a tendency on the part of some white citizens to view Canada as a country that should remain an exclusively white homeland. In fact, Canadian immigration policies have often been formulated giving due consideration to this viewpoint.

Historical incidents provide a number of cases of harassment and forcible deportation of Afro-Asians. Canada is presently recognized as a major economic power in the world, having significant ties not only to Europe and the United States, but also to Third World nations; the latter are not without considerable privilege and advantage to this country.

Socioeconomic overtures to the Third World cannot but result in the desire on the part of many Third World peoples to come to Canada. Not unlike previous generations of European immigrants, nonwhite immigrants are seeking to better their standard of living and to enjoy the democratic freedoms for which Canada is known abroad. The arrival of these new immigrants to Canadian shores must inevitably lead to a more cosmopolitan character in the Canadian population.

[page 33]

Unfortunately, efforts on the part of nonwhite Canadians to organize for the improvement of their social and political conditions, are often viewed as the work of radical or militant activists. Consequently, such false perceptions are used to suppress the political participation of minorities.

Afro-Asians came to Canada with the expectation of being able to move freely from village and from coast to coast. Due to the haphazard nature of provincial human rights legislation, Afro-Asian Canadians are, unfortunately, not yet able to enjoy complete freedom of mobility without a sense of insecurity.

We recognize that education is a key element that should ensure all Canadians of the possibility for socioeconomic mobility. Only by gaining equal access to the knowledge and information necessary for social, political, economic and technical advancement can nonwhite Canadians be enabled to enjoy and contribute to the great Canadian cultural heritage.

In view of the above concerns we wish to make the following recommendations:

1. That a charter of human rights be entrenched in a patriated constitution;

2. That fundamental human rights, including the right of all citizens and permanent residents to move freely throughout the country, be explicitly recognized in the constitution;

3. That an article of the constitution should specifically state that no person may lawfully be denied freedom of movement or freedom of employment in any Canadian territory on the basis of race, colour or national origin;

4. That a clause in the constitution provide for the protection of places of worship of Afro-Asian religious sects from vandalism and defamation; such acts encourage hatred and disdain for that which is different;

5. That an article of the constitution protect Afro-Asian minorities from all forms of aggression and violence to which they are presently exposed by groups whose stated objective is to promote hatred and racism directed toward nonwhite groups. Such acts not only jeopardize the security of nonwhite minorities, but also undermine the dignity of humankind;

6. That an article of the constitution state that no person may be discriminated against in places of employment, education, health, political and social institutions, on the basis of race, colour, religion or national origin; explicit provision should also be made for adequate enforcement;

7. That the federal government ensure that, wherever feasible, all children, regardless of mother tongue or national origin, be entitled to receive public education in the official language of their choice;

8. That an article of the constitution provide for the creation of a federal commission to attend to the complaints of non- white minorities who suffer discriminatory acts that prevent

[page 34]

their enjoyment of all privileges to which other Canadians are entitled;

9. That an affirmative action program be instituted that would ensure the representation of nonwhite minorities in decision-making positions on all levels in both public and governmental bodies; for example, police forces, armed forces, boards of education and the media;

10. That the federal government assume a position of leadership in enlisting the co-operation of public and private groups representing nonwhite minorities in order to sensitize majority-group Canadians employed in public institutions; for example the police force, immigration offices, the judiciary systems, educational institutions and so on, to the historical and present day circumstances of nonwhite groups in Canada.

In conclusion, we wish to emphasize our great concern that the patriation of the constitution must give due consideration to the needs of all Canadians. In this regard, we support the efforts of our native people, the Indians and Inuit to ensure that their aboriginal rights and treaties should be safeguarded and protected in the new constitution.

As we near the end of the 20th Century, we are becoming increasingly aware of our interdependence, not only with European, but also with Third World countries. Leaders of the Third World are particularly interested in the treatment of their descendants on Canadian soil.

Surely, a constitution patriated without the meaningful involvement of nonwhite peoples and other minorities would jeopardize Canada’s role as the champion of human rights abroad.

As a young and growing nation with inhabitants representing every part of the globe, Canada occupies a remarkably unique position in the world today. The eyes of the world are upon us. Let us use this opportunity to build a strong Canadian society in which the rights of all peoples are protected under the law.

The Joint Chairman (Senator Hays): Thank you, Ms. Christinson.

Our first questioner will be the honourable Mr. Crombie, followed by Mr. Rose.

• 1615

Mr. Crombie: I would like to welcome this deputation and commend them on their brief.

Just before I go into the substance of your brief, a question occurred to me as I heard you speak initially, and it dealt with the speed with which you had to put this brief together, given your request to come at this time. As you are probably aware, there are some 481 groups who are seeking to come before the committee and thus far we have been only able to hear from 84.

For our edification, can you explain when you applied to appear before the Committee, when did you receive some notification?

[page 35]

Mr. Alakatusery: We applied to appear before the Committee on December 14, 1980. We had arranged a constitutional conference for the purpose of electing a delegate. That conference elected nine members to go before the constitutional committee to testify before that committee.

The request was forwarded in the form of a telegram on December 15, 1980 and I received an invitation to appear before the Committee on January 2, 1981.

Mr. Crombie: You had the meeting on the 14th and you applied by telegram in order to get there by the 15th which was the deadline.

Mr. Alakatusery: That is correct.

Mr. Crombie: I am aware of a number of the groups, and indeed over a number of years I have worked with a number of the groups in Toronto in particular with reference to both Asian and black rights.

Your group was formed in March 1980. Did you have any connection or involvement or participation with any groups in Metropolitan Toronto, and, if so, could you indicate which of those it might have been?

Mr. Alakatusery: Yes, we have had connections and we have participated with groups all across the nation.

The Toronto groups we are in touch with are the National Origin of Indians, the Association of Indians, the Montreal Chapter, the Indo-Canada Toronto Group are already in communication with us and we have communications with those groups in the Toronto area.

We propose to have a larger scale conference probably in February, starting in Toronto but invitations will be extended to all other non white minority groups in Metropolitan Toronto, especially in Ontario.

Mr. Crombie: Thank you.

The reason why I asked—and you may want to amplify on your remarks—we have heard from the Civil Liberties Association from Metropolitan Toronto, and the Committee has also heard from the Human Rights Commissioner and other bodies dealing with rights, not only native rights or black and Asian rights but also citizens rights.

I wanted to make sure that I was able to put your own recommendations into some perspective in relation to the recommendations which have already been made to the committee by the human rights commissioner and by the Civil Liberties Association of Metropolitan Toronto, the Canadian Civil Liberties Association from Toronto.

Did you have an opportunity to look at the presentation by the Human Rights Commission and the Canadian Civil Liberties Association, and, if so, do you find yourself in agreement or disagreement with any part of it?

Mr. Alakatusery: As a matter of fact, we have never had an opportunity to study their recommendations so far. So I am not in a position to comment whether or not we are in agreement with their proposal.

These proposals have appeared after the discussions of our 27 organizations of nonwhite groups.

[page 36]

Mr. Crombie: So there were 27 organizations of nonwhite groups which participated in these recommendations?

Mr. Alakatusery: Yes.

Mr. Crombie: And the discussions occurred after the presentation of the Civil Liberties Association?

Mr. Alakatusery: Yes.

Mr. Crombie: I would like to come to a question of substance on the recommendations, Mr. Chairman.

Recommendation 6—a very good recommendation, dealing with discrimination in the question of employment, education, health, political and social institutions and so on.

If you put your recommendation number six in relation to your recommendation number nine, which talks about affirmative action programs, one of the difficulties which the Civil Liberties Association had or the difficulties that the Canadian Commissioner of Human Rights had as well as the two groups on the status of women was the difficulty with Section 15 of the government’s proposal—Section 15 dealing with those rights as well as affirmative action proposals.

Those groups felt that there ought to be changes made in Section 15, and, interestingly enough, if you take your Sections 6 and 9, you have precisely formed the problem that there ought to be those nondiscrimination rights as well as the opportunity for affirmative action programs.

I wonder if you have been able to come up with any solution which they have not yet come up with and indeed which they have put to this Committee as a problem?

Ms. Christinson: Let me make sure I understand your question correctly. Are you suggesting that there is some conflict between these two things, Section six and Section nine, or are you saying that you recognize that there is a need for both.

Mr. Crombie: Not only I, but the bodies that I have talked about recognize the need for both, but also that Section 15 does not provide that; and I am wondering whether you have any solution which they have not yet offered.

The short point is that, of course, courts can interpret nondiscrimination programs, affirmative action programs, so that they become discrimination, as opposed to nondiscrimination.

Ms. Christinson: Yes. I cannot honestly say that to my knowledge or any members of our association have any solution to the problem that we recognize as very sticky.

We have a great deal of experience, looking at what has happened in the United States with these programs also.

We would suggest to the honourable Members of this Committee that affirmative action is important.

Quite apart from the suggestions which you are making on Section 6, which says that no person should be discriminated against on the basis of the various factors over which he has no control.

We think it is important that affirmative action be taken with regard to those groups who have suffered the kind of

[page 37]

injustices that nonwhite groups have tended to suffer over a period of years.

We think these groups and very explicit kinds of situations, such as jobs, education, et cetera, should be spelled out and that Section 15 should simply be widened.

Mr. Crombie: One final question, if I may.

I have only had a look at the brief when you were presenting it, so that I have not really had sufficient time to really study it, but I wonder which section of the charter you would find giving expression to your recommendation hour, that a clause in the constitution should provide for the protection of places of worship, of Afro-Asian religious sects from vandalism and defamation, and as you say, such acts encourage hatred and disdain for that which is different? I am sure, as you are aware, in provincial legislation there is always a difficulty, because it relates to different rights to property in the different municipalities.

Have you given any consideration as to how we might put that in the Charter itself?

Ms. Christinson: I think, again, that might logically be included in Section 15, again. While that statement as it now reads is extremely general, it does not do very much to suggest to the average citizen that the federal government, in addition to provincial governments, is interested in at least taking a moral stand on the kinds of defamation we have seen, for example, in B.C. against the Sikh Temples in Vancouver, et cetera.

So that spelling out some of the very specific kinds of acts that we would hope to limit might do one of the things we are really pleading for the federal government to do, which is to take a position of leadership.

We do not feel that with such very broad powers, as implied by the government, for example, having access to the CBC and nationwide media, we see far too little in this kind of medium which would sensitize and educate the average Joe Blow Canadian as to why some people worship in a temple which looks different from a synagogue or a Roman Catholic church.

Mr. Crombie: I took that from your recommendation 10 in terms of sensitizing. I appreciate that point.

But I believe you can be of great assistance to the Committee and to the people you represent, if you could assist by offering some thoughts as to how to deal with vandalism as a constitutional matter, dealing with it within the context of a constitutional right within a charter of rights. I fully agree with the intent, but so far it has eluded me.

Ms. Christinson: If we look at the wording of Section 15 now, which talks about the guaranteeing of the right to equality before the law and equal protection of the law without discrimination based on a race, national or ethnic origin, colour or religion, age and sex, deriving essentially from Section 1, et cetera, logically we are talking about religion, are we not? So that here, it might be a very good place to spell out

[page 38]

that for those religious sects whose customs may appear strange, as customs in the Catholic Church might seem strange if seen in a country which was predominantly Buddhist, when we are talking about equal protection before the law on the basis of religion, this would be one of the kinds of things we are talking about.

Mr. Crombie: One of the suggestions made by the Status of Women’s groups was that this question now before the law very often simply meant process and not substance.

Ms. Christinson: Yes.

Mr. Crombie: And you might want to have it in the law as well as before the law.

Ms. Christinson: Yes, and 1 think it would be a good place to put it.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Crombie.

Mr. Rose.

Mr. Rose: Thank you Mr. Joint Chairman.

I would like to welcome the Afro-Asian group which is before us. I also welcome the opportunity to direct a few questions to you. A number of the questions were alluded to earlier by Mr. Crombie.

Perhaps a very general question to begin with. You said that patriation of the constitution with an entrenched charter of rights would be a most important step in the direction of building a truly egalitarian multicultural society.

First of all, I would like to ask you what leads you to this conclusion, the fact that the entrenched charter of rights would lead inevitably to this situation in Canada.

Are you confident that the proposed charter would be the most important first step, which is what you said, or are you suggesting that the charter if reformed could realize the goal of such a society as you envision? What kinds of changes to the charter are you actually looking for?

Ms. Christinson: I do not think we used the word “inevitably”.

Mr. Rose: I did not say that. I was not quoting there.

Ms. Christinson: We are not naive enough to think that because we have yet another group of nice sounding phrases and words on paper that inevitably something great will happen and suddenly you have eradicated prejudices and racial discrimination and so on. We are not suggesting that for one moment.

What we are suggesting and what we are trying to refer to in the body of our brief is that, as matters now stand, although most of the provinces, Quebec being the latest one, have bills of rights or human rights legislation, nevertheless they have been done in a very haphazard fashion.

So the fact of the matter is that from province to province they vary; and in some provinces if you happen to be of Afro-Asian descent you are better protected in certain areas than you are in others. This is a kind of situation which we are suggesting is really intolerable in a country with the type of

[page 39]

reputation that Canada has and we think one should maintain in the Third World.

So what we are at least suggesting is that if this charter were entrenched it would do two things. First, it would allow the federal government to come out and take a stand, a leadership position, a moral stand, if you will; secondly, provincial governments would have a basis on which to base further legislation, if, indeed, they felt there were things the federal charter did not provide for and which they would like to go further with. That would be fine.

But we are not suggesting in any way that this would either eliminate the place that human rights legislation in the provinces have, but it would give an over-all, uniform kind of situation to deal with rather than the type of situation we have now.

Mr. Rose: You have spoken about the Japanese in World War II. I was there in British Columbia during that period. However I cannot see anything in Section 1 of the Charter which would prevent that from happening again.

So I am wondering, if you used this “reasonable limits”, “generally accepted” sort of thing, et cetera, I was wondering if you had something specific to suggest in that clause?

Ms. Christinson: Had we had more time to put this together rather than the two or three days in which we had to do it, we would probably have wanted to take exception to that particular clause as we know several other groups who have appeared before you have done. We are very wary of that kind of wording. Who knows what “reasonable limits” are and how they would be interpreted by different governments et cetera.

So, we would tend to agree with the opinion of several other groups who have come before you that either that should be done away entirely and replaced with something which is much more explicit or at least expanded to not almost suggest to governments that they can decide or to judicial systems that they can decide from day to day what is and what is not a reasonable limit.

Mr. Rose: Some people have suggested that you should remove the clause and list the specific emergencies which would limit the clause. Some of us are attracted by that.

I have never been a visible minority. I have never had that experience, unless you call being in the NDP a visible minority.

I think, though, that I am perhaps less prejudiced than my parents were, and my children are less prejudiced than I. I think it is something which is learned behaviour.

But I would really like to ask you for a little bit of elaboration on both clauses on recommendation 9, and recommendation 6.

Recommendation 6 seems to be covered by Section 15, that is having to do with no person being discriminated against in places of employment, et cetera.

In other words, your recommendation 6 says: “Do not discriminate against us” but your recommendation nine says “Discriminate in four of us”.

[page 40]

Some of us have problems in terms of how you make that explicit in a constitution.

As a matter of fact. I would like to comment on one more thing. Your recommendation 9 did not suggest or state that recommendation 9 should be enshrined or constitutionalized. Is that so?

Ms. Christinson: That is so.

Mr. Alakatusery: More specifically, we are looking at Section 15 as to how the fundamental rights can be enshrined in any form with explicit wording, because even though there are bills of rights, human rights legislation in this country, we are still feeling the discrimination every minute of our life.

There is institutionalized discrimination in this country. For example, the Immigration Act and manpower itself is an institutionalized discriminatory institution. The employment agencies are another way of using discrimination.

So what we are seeking is that our rights as nonwhites, should be protected here, and that should be made clear that we should not be discriminated against in any form, whether on the basis of nationality, colour, whether you speak English or French or Greek or whatever it could be. That is what we are actually looking for.

We have not studied the constitution as lawyers do. We are not constitutional experts to comment on the constitution as to how to frame a section or how to put it. We are, however, just placing before you our feelings as to what we want to have in the constitution as a matter of fact. I hope and think that should explain your question.

Ms. Christinson: May I add something to that? Our suggestion there would be similar to that which I was saying earlier in response to the honourable Mr. Crombie’s question. In that respect, what I would like you gentlemen to consider doing in Section 15 and expanding or spelling it out more explicitly, is to give examples of the kind that Mr. Alakatusery was suggesting, examples that we all know about, because we read about them in the newspapers every day.

Just recently we had a televised example of the way institutionalized racism works in the process.

So maybe we need to say specifically that employers may not legally, if you like, suggest that they would only hire people whose skin colour is so and so, or whose accent is so and so or if they are such a place. If they are Canadians citizens, or landed immigrants or citizens they have a right to apply for those jobs; the discrimination would not be as blatant as it is now.

There is no way to fight institutionalized racism. Do you know what we mean by that? Well, forms of racism which are settled, gentlemen’s agreements, the kind that allows Canada to think that there is no racism here, so that a person such as Mr. Rose who has never had personal experience of discrimination would not have the luxury of thinking that therefore it

[page 41]

does not happen. I am not suggesting for one moment that that is what you think, of course.

Mr. Rose: I think we are a highly racist society.

Ms. Christensen: All right, okay. You recognize that.

Mr. Rose: It is just that I have not felt it personally. I have not experienced it.

Ms. Christinson: Nor would the average person whose skin happens to be white. This is a reason why we felt the need to form an organization which would speak particularly to the needs of non-whites.

We are not suggesting in any way—and that is why we often say “and other minorities”—the Greeks, the Portugese, the Italians etcetera, the Jews, do not experience similar problems, and we support their needs.

But the fact that we are a visible minority makes it much easier for an employer to say “not somebody looking like that” as soon as we walk through the door; or, “We do not want to promote anybody who speaks with that kind of accent”, or whatever.

So we would suggest in this clause—and when we speak of Sections 6 and 9, it would certainly be very possible, very easy, to spell out some of the kinds of discrimination which the federal government again could take a leadership position on in saying that at least if this is on record in the Charter of Rights, it is against this.

As I said earlier, affirmative action does not seem to us to be contradictory. There are some non-whites who can say also that they have not really noticed any personal discrimination. They may be some of the fortunate ones either who have not experienced a blatant form, so that the more subtle forms they have been able to ignore; but the thing that all of us cannot help but be aware of if we have our eyes open, is that we see in a body, such as the one we are looking at today, very few—and I see only one visible minority person.

• 1640

The Joint Chairman (Senator Hays): Thank you very much, Mr. Rose.

Mr. Rose: Do I have time for one more question?

The Joint Chairman (Senator Hays): You are quite a bit over time. We have another group coming, if you do not mind.

Mr. Rose: All right.

The Joint Chairman (Senator Hays): Mr. Irwin.

Mr. Irwin: Thank you, Mr. Chairman. I see in the first page of your brief that you support the patriation of the constitution and the enshrinement of the Charter of Rights. Do you support some form of amending formula, not necessarily this one, but some sort of amending formula? Would you indicate that.

Mr. Alakatusery: As far as we are concerned, any constitution must have an amending formula. That would debated or it would be formulated according to the states, the other provinces, but we are particularly interested as to what would be the type of amending formula.

[page 42]

Mr. Irwin: You have made basically ten recommendations and I would like to go through them within the time allocated to me. It seems that most of your concerns have been dealt with, not necessarily to perfection because I do not think we are ever going to accomplish perfection in either wording or intention. I do not think you will find ten people in this room agree on wording.

Starting with your recommendation number 1, you are recommending that the human rights be entrenched which I suggest is done and 2 and 3 together, recommendations 2 and 3 together, one is to move freely and the second is to move freely but have freedom of employment. Do you consider this done by Section 6 in postconstitution mobility rights?

Ms. Christinson: I will take a little moment just to read that again.

Mr. Irwin: It says:

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and to take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.

Mr. Alakatusery: Yes, it is to cover our recommendations, but the problem is even though we have spelled out in a very good form all of these things, still we will be facing this Commission, we are afraid, because the provincial legislation can pass a law, even though to say that you should not be discriminated against.

Mr. Irwin: Let me clarify that. This Charter will apply to provincial legislation and any law of the province can be struck down by Section 25 that does not comply with this Charter. It is not just a federal charter. It applies to both the provinces and the federal government.

Mr. Alakatusery: Yes, we feel that that section will cover 3 and 4 of our recommendations mostly.

Ms. Christinson: May I just say that we realize that some of the recommendations that we have made are taken care of. In that case what we are doing is saying, “Yes, we agree and do go ahead and act in that fashion”; in others we are saying, “This seems to us to be left out and we would like to see it made more explicit”.

Mr. Irwin: On your recommendation number 4, you are concerned about worship, vandalism and defamation. By reading Sections 2 and 7 of the proposed Charter, it deals with freedom of religion, freedom of association and tying that into the sections of the Criminal Code relating to vandalism and to perhaps civil rights in defamation suggests that the wording is there, maybe the enforcement is lacking, but the wording is there.

[page 43]

Mr. Alakatusery: We are really looking for explicit wording for enforcement.

Mr. Irwin: More aggressive wording?

Mr. Alakatusery: More aggressive, yes.

Mr. Irwin: So the same would apply to Section 5, aggression and violence.

Mr. Alakatusery: Right.

Mr. Irwin: In Section 6, that there would be protection as far as employment discrimination, but you want better enforcement.

Mr. Alakatusery: Better enforcement.

Mr. Irwin: In Section 7, is something that is not here. You talk about freedom of choice of education. You do not indicate in your brief whether this applies to citizens or noncitizens.

Mr. Alakatusery: I would like to comment on that. Seven of our recommendations.

Mr. Irwin: Would you, please.

Mr. Alakatusery: Because in almost every federal government there is a unified commission to look after the educational institutions in the country. For example, if a person graduated from St. Francis Xavier University in Nova Scotia that degree is no good at McGill University in Montreal. They do not recognize that as a degree. As it is, there is some imbalance in there because there is no university coordinating mechanism for the federal government to take the leadership to the aims and implementation of the federal education policy at the university level or secondary level or the primary level.

So what they want to ask from the honourable Committee is to set up, to have a leadership role for the federal government to the educational aspirations of this country to look after national language and also our educational system.

Mr. Irwin: Just briefly, the last three recommendations. You are suggesting a federal commission. Taking Section 15, plus the various provincial human rights commissions, plus the federal existing Human Rights Commission with the more aggressive policy, that would probably satisfy your suggestions.

Mr. Alakatusery: Let me point out, since the Confederation, the nonwhite people are living in this country. If you take the appointments of the government in the Senate or judiciary, or in the foreign office, or in any place, could you say that any nonwhite Canadian has been appointed or selected in this position, because we feel that Canada has a mistrust towards

the nonwhite people. As soon as we become Canadian citizens, we do undergo the security check and we are here adopting this country, we want to develop our aspirations, our talk and our own ability to create to this country, but when you eliminate us from the mainstream of the government and institutions that looks like you want it to be like that so that other people, ordinary Canadians also try to discriminate against us.

[page 44]

So what we are asking is, we should have a Commission look into these problems and to have recommendations, how the situation can be changed or rectified. This is what we are actually looking for and a Royal Commission can do that job.

Mr. Irwin: That would take care of your recommendation 10.

Mr. Alakatusery: Yes.

Mr. Irwin: I think I agree with Mr. Rose on affirmative action in Section 9.

I would like to say this. I want to thank you for coming. About 20 years ago Pierre Berton said in a column when he was writing in Toronto that there is going to be discrimination until we are all light brown, and at that time I thought that was a good idea. In 20 years I have changed my thinking. I think we would be a very poor nation if we did not have our brown and our yellow and our Italians and our French, and our English and our Inuits and our Indians, and that is what makes our nation so rich. Our Ukrainians in the west, and so on. The list is endless. I would hate to see a nation where we are all the same. I just want to say that. Thanks for being here. I think discrimination is still here, maybe not as bad as it was when Pierre Berton was writing 20 years ago, but it is still there and I think together we can stop it. Eventually, if not us, our grandchildren, Mr. Rose’s children and Mr. Rose’s grandchildren.

Mr. Alakatusery: Thank you, sir.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Irwin.

Mr. Alakatusery, Ms. Christinson and Mr. Justin, we wish to thank you on behalf of Mr. Joyal and all of the Committee members, we want to thank you. I am sure all of the members are very mindful of your great concern and your problems and that they will be taking that into consideration in our deliberations. Thank you very much for being here.

Mr. Alakatusery: Thank you.

Ms. Christinson: Thank you.

The Joint Chairman (Mr. Joyal): I would like to call first the representatives of The Canadian Connection to take places at the witness table so that we might continue our discussion of this afternoon with them. While they are taking their places I would like to recognize the Honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman. Mr. Chairman, I want to raise a matter which probably concerns every member of the Committee and most specifically the Joint Chairman.

I hesitate to raise it but in view of the work of this Committee and, I feel, the importance of the Committee, it is my responsibility I feel to do so.

This Committee will be sitting on Friday of this week and yet for part of the time that this Committee will be sitting, there will be another conference taking place on the Hill regarding the constitution. I do not know what the precedence of that is, but it does concern me. I do not know how other members of the Committee feel.

[page 45]

For one, Mr. Chairman, with all respect, I am not trying to be personal in any way, I understand that the Joint Chairman will be present at the same time that this Committee will still be sitting.

The questions that are to be discussed, I suggest, are the very discussions that are before this Committee, Committee matters such as how the proposed resolution should have final form, how it will alter the nature of Canadian federalism. I think it is a topic we have discussed and will be discussing: implications of the measures for the roles of the federal parliamentary and provincial legislatures, especially should a Charter of Rights be entrenched; how the democracy changes in terms of a, should a plebiscite, a referendum provision be provided.

Mr. Chairman, I do not want to be negative but it does bother me that this is being planned; extensive work obviously has gone into it; a number of witnesses are to appear there. This Committee I think, with all respect, has been having some difficulty in terms of scheduling and I know it can be viewed that my comments are personal and I do not want to have them interpreted that way, but I feel I have a responsibility in terms of my membership in the Committee and also on behalf of my colleagues, at least on this side of the table. I do not know how other members on the other side feel. I have not taken the liberty to discuss it with them because of the sensitivity of the situation but I wonder, Mr. Chairman, if you could give us some direction as to its effect on the role of this Committee and how you see us proceeding at the end of this week.

I obviously have quite another matter if, it is quite another matter, the Committee is not sitting. I am not discussing that. I am discussing it during the time the Committee is sitting primarily apart from the organization of it.

The Joint Chairman (Mr. Joyal): Yes. Thank you to have raised the question. It might be a good idea to have further discussion on the issue after we have dealt with our witnesses at this point because they have been waiting since 4:30 p.m.

But I am quite open to give my personal views and of course welcome the other views on the very issue but the very preoccupation that you have expressed, I have stated to the organizers of the conference, especially when they have requested that I do participate in this conference, and I made very clear that the only statement or the only contribution that I would bring to the conference would be to state exactly the procedure that the Committee has been following and give the over-all steps that the Committee has taken at this point and intends to take in the future, as if the decision would have been taken at that time, and to inform them generally about the procedures; but not state any personal views to judge if the Committee would then in one way or the other recommend that solution or that option or selection of another and I have expressed that very firmly to avoid any confusion and prevent any effort or make it so that it would jeopardize the forthcoming sessions of the meetings of this Committee, taking into account very specifically that the forthcoming two weeks will be very much important because it will be more or less the

[page 46]

result of all our debates and discussion in the preceding weeks when we will be in a position to sum up our own views on the amendments that we should put forward and recommend to the House of Commons. So that was the caveat that I did express personally to the organizers of the conference but, as I mentioned too, I am certainly open to any views of the members on that very specific topic.

Mr. Epp: Mr. Chairman, I wonder if it would be acceptable to the Committee members—I do not think we want to hold up the Committee in any way. I have raised the matter.

Members can think about it and possibly through some discussion we can find some suitable time to express some views if that is acceptable to the members around this table.

An hon. member: I think, Mr. Chairman …

Senator Roblin: I would appreciate having a statement as to what this other meeting is, who is convening it and what the stated purpose is.

The Joint Chairman (Mr. Joyal): That is a very good question, honourable Senator Roblin. I think that what we should agree to is to postpone the debate or questions or the comments on the issue until we have dealt with our guests this afternoon. And maybe during the dinner time we will have …

Mr. Epp: That is acceptable.

The Joint Chairman (Mr. Joyal): … opportunity to have informal meetings to clear that up.

Mr. Irwin: Mr. Chairman, while we are thinking about it, as per Mr. Epp’s suggestion, is he also saying that this rule should apply to all members of this Committee or just to the Chairman of the Committee?

Mr. Epp: Mr. Chairman, I am willing to discuss that after we have heard our witnesses. I do not want to take their time and yet I believe that it is important for this Committee to address that question as well.

The Joint Chairman (Mr. Joyal): Thank you.

Mr. Irwin: Well, you know, if you want us to think about it, I think he should clearly set out whether we are going to have a double standard or a single standard for all members of this Committee who, I assume, will have equal votes.

The Joint Chairman (Mr. Joyal): Well, I think we will have opportunities, Mr. Irwin, at a later time today or tomorrow, to discuss more at length all the implications of the question as it was raised and stated by the honourable Jake Epp.

It is my privilege and honour today, on behalf of the honourable Senator Hays and on behalf of all the honourable members of this Committee, to welcome the representatives of the Canadian Connection and I would like in so doing to invite Mrs. Marion Dewar, who is well-known on the Hill here in Ottawa, maybe to introduce the other members of the delegation and ask her too, on the same occasion, to indicate how the opening statement will be made by the delegation. And I understand too that after that you would be agreeable to receive questions by the honourable members of this Commit- tee. So, Mrs. Dewar.

[page 47]

Mayor Marion Dewar (The Canadian Connection): Thank you very much, Mr. Chairman.

I want to say a very sincere thanks to you and members of the Committee for hearing us.

I would like to introduce on my far right Alan Clarke, who is an adult educator; Mary Hegan, an interested citizen; Lawrence Greenspan, an interested solicitor. And I have behind me some members also of the Canadian Connection and perhaps I should give you a little bit of background of just who we are and to tell you that we are a very diversified group and we do represent many walks of life in Canada as well as political parties and nonpolitical parties and religious denominations, Christian and nonchristian, and I think I would like to just for a moment go along with a history of how the Connection came into being and then I would ask Mr. Greenspan to elaborate on principles of what we say a constitution is all about, and Mr. Clarke to make some comments on Appendix B which discusses some of the models that we think a process could be feasible.

I first became involved in the constitutional discussions at the Federation of Canadian Municipalities because I was concerned about the lack of input that local governments were having, and it was not very long into this debate that I suddenly realized that as a Canadian citizen I wanted to have more input in what was going to happen in the future of our country and how we were to govern ourselves.

Our thinking of the Canadian Connection has come about because when I came back from the conference of FCM I talked to some acquaintances, fellow citizens, and began to realize that this was a common thread that was coming through all of our conversations, that people wanted the chance to be able to opt in to the discussion and the debate of the Canadian constitution.

I remind you that this was last summer, before the resolution had been introduced in the House, and what we did realize as we started to meet was that we were a group of citizens with vested interests, but the only vested interest we had was being able to participate in the constitutional formation, and we do not represent any kind of special interest group, but the broad spectrum we think of where Canadian citizens are at.

We were able in time to connect with various groups across Canada and we found that there were different levels of interest in the debate, but certainly a lot of interest and, I guess everybody evolving their thinking at different rates, and I am sure you people have come to the same process yourself, that your thinking has evolved as you have come through these hearings. We certainly as a Canadian Connection have evolved our thinking.

We see, and I do not want to continue until I say to the people on the government side a very sincere thanks because I think by putting this resolution forward, by having this debate at this time, it certainly has involved the Canadian people, and although I know a lot of people have said: well, this discussion has been going on for 53 years, I do not think we as citizens, people on the street sort of thing, have been really involved in constitutional debate. I think you have made this possible for

[page 48]

Canadian citizens and I guess I am in front of you here to urge that you do not stifle us or cut off that process because I think it is a very valuable one. I think if you look at what has happened to us in our Canadian history and our tradition, we have some very positive experiences of being able to evolve many solutions to some of our problems that were complex because we as a community did arrive at consensus.

I feel very strongly that we can arrive at that consensus if we look at some alternative approaches. I do think that the approach that is in front of us, the process in front of us now could be negative and could be destructive. We have looked at other models, we do not feel that some of the models that have been put forward are acceptable models, maybe we have to look at the positives of each and get a combination of.

However, I am asking you, and I guess in a way I am begging you, not to stifle us as citizens of this country from a process that is very exciting, that is very positive, that we can come with something that is very unique in a country that I know we all feel is very unique and very special, and I think we can do that if you would allow us to enter into some community based discussions on the constitution, and if you yourselves as representatives of those communities can involve yourselves with your constituents in those discussions so that you make sure all those constituents really understand what the formation of a constitution is, that it is certainly people honouring the way they deal with each other and not just governments dealing with each other.

I would like to now defer to Mr. Greenspan and he will address the principles of how we could form a constitution.

[translation]

Mr. Lawrence Greenspan (The Canadian Connection): Thank you Mr. President and all members of the committee.

While examining the fundamental factors, we must ask ourselves the following questions.

First of all, which kind of government do we want in Canada in future? How do we expect to participate to the constitutional process? Which measures do we have to adopt to form a new constitution?

We think that the following principles must lead our thinking in answering those questions. The constitution must establish the relationship not only between states and governments, but also between the people and the government and between individuals. This way, citizens must play a major role, the one Mayor Dewar was talking about, in the establishment of this constitution, and get involved in the process.

The amendment of a constitution must be based on the best traditions and on the history of the people who made the nation, and must draw its inspiration from those to reflect our true aspirations. Any good amendment process to the constitution must take advantage of the strength of the community rather than divide individuals and impose second-rate solutions. It is obvious that the amendment process to the constitution used by the government do not respect those principles.

[page 49]

It is also clear that the government had examined the necessity of a consensus because it had written in its preamble:

Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions…

and it goes on.

This shows that the government has recognized the importance of a consensus and the importance of having people’s consent. Up to now, nothing involves the citizens of Canada in such a consensus.

So, I would like to say that an amendment process to the constitution must apply those principles and this is what we tried to do in proposing those approaches that Mr. Clarke is going to talk about right now.

Thank you very much.

[text]

Mr. Alan Clarke (The Canadian Connection): Mr. Chairman, before I begin I might indicate to members the shape of the brief. Mrs. Dewar and Lawrence Greenspan have spoken to the first part of the brief and there are three appendices.

In the first appendicy we have for discussion and clarification purpose reviewed the four traditional models for reform, and in the Appendix C we have taken some quotes from earlier

witnesses that have appeared before this Committee that are pertinent to our message this afternoon.

I have been asked, though, to speak to Appendix B which deals with an alternative approach to developing the constitution. I think it is clear that our brief recommends that an alternative approach must be devised to involve Canadians to develop their own constitution, and in the discussions we have had since the summer we have reflected on the experience we shared as Canadians in the celebration of the centennial of Confederation in 1967, more recently in the reception and settlement of South East Asian refugees; Canadians have demonstrated a willingness to enter into a partnership with the government, Canadian organizations and Canadian communities, and in our discussions we have reflected on these experiences, including experiences where Royal Commissions and commissions of inquiry have seriously attempted to engage communities.

The Saskatchewan Royal Commission on Rural Life, the Royal Commission on Bilingualism and Biculturalism, and the Berger inquiry on the Mackenzie Valley Pipeline are experiences from the 1950s, 1960s and 1970s that are relevant to our point.

Essentially we have identified in this section of the brief the assumptions or the reality. We feel that Canadians are becoming increasingly concerned about the kind of Canada they want and the constitutional arrangements, and we have listed other assumptions on which any alternative model must be developed.

[page 50]

Then we have listed eight principles that would be crucial to the design of a different approach to developing the constitution, and just very briefly those eight points touch on the need for real partnership between Canadians, their organizations, their communities and governments, where no one partner would control the process, where there was a timetable but a timetable that would ensure adequate opportunities for learning as well as for seeking consensus.

We would want to involve the broadest possible participation from Canadian associations and organizations and we need help to do that from the government and from the private sector in terms of resources and funds. We believe that in the tradition of acting as patrons of voluntary organizations, the Governor General and the Lieutenant Governors of each province should be asked to be patrons of the new process. We were also excited by the process of involving existing media and perhaps also exploring the possibility of using some of the new Canadian microelectronic media in developing a new approach to constitutional development.

We are excited by the challenges of a new approach and we would like to encourage you to build on the positive and creative experience that Canadians have had in this regard and we hope members of the Committee agree.

Thank you.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Clarke. Mrs. Dewar.

Mayor Dewar: That is all.

The Joint Chairman (Mr. Joyal): Thank you.

I would like now to invite the honourable James McGrath followed by Mr. Lome Nystrom.

Mr. McGrath.

Mr. McGrath: Thank you, Mr. Chairman.

I first of all want to say through you, Mr. Chairman, how impressed I am with this brief and how important I view it, and I would like to ask Marion Dewar, we only received the brief about an half an hour ago, or certainly within the past hour, and I find that is unfortunate because it did not give us time really to give it the attention it deserves and consequently it places us at a bit of a handicap, although that is not unprecedented for this Committee.

However, I would like to ask you, Mrs. Dewar, when did you receive an invitation to appear?

Mayor Dewar: I first heard last night at eight o’clock and I want to apologize for another member of our committee, the honourable David MacDonald has been very much a part of this group and he was out of town and he was gone by the time we received word we could appear, so that is why he is not here.

Mr. McGrath: When did you apply to be here?

Mayor Dewar: As soon as the applications were advertised we applied.

Mr. McGrath: And your brief was prepared when?

Mrs. Dewar: We gave the prospectus to you in November and then we finalized, we just finalized the brief yesterday.

[page 51]

Mr. McGrath: According to the letter that you sent to the Joint Chairman on November 18, I think that was followed by a press release, that was your first public foray for your organization, you listed a number of organizations that you represented and I hope that that can be appended to the proceedings today.

There were 15 organizations listed in your letter of November 18 and they include the Alberta Women for Constitutional Change, the Anglican Church of Canada, the Canadian Conference of Catholic Bishops, the Canada West Foundation, the National Action Committee on the Status of Women, the National Federation of Business and Professional Women, the Presbyterian Church of Canada, Social Planning and Research Council of British Columbia and so on.

Now, the presentation that you have made today, and you are largely concerned with process here as we all are, but your brief today essentially zeroed in on the process that we are involved in and are you authorized to speak for the groups, the 15 groups that were appended to your letter of November 18 such as, for example, these national organizations I have identified?

Mayor Dewar: We have not had our brief approved by those organizations that have been identified. However, when we did talk to these groups on a conference call, mid-November, I believe, and I will defer to my colleagues for dates, they felt very strongly about the process and they wanted at that time to be part of a conference, a meeting, or something that would give them an opportunity to share with other Canadians some of the thoughts on the formation of a constitution.

Mr. Clarke: If I may, Mr. McGrath, many of the members of the Connection and some who are on that list have already appeared and others will appear before the end of the hearings, but the statement that is before you is the product of work of the Ottawa group, but I think you will have an opportunity tomorrow, for example, to ask the Primate of the Anglican Church about his views. We think we have reflected the spirit in the country but with no real opportunity or time to check that out.

Mr. McGrath: It is safe to say that as a result of your consultations with these member groups that the concerns articulated here today do in fact reflect the concensus of these groups; is that a fair statement?

Ms. Mary Hegan (The Canadian Connection): Just to illustrate this point further, the Canadian Connection has been involved in getting in touch with groups weekly and daily and they have been calling back to us both out of interest to find out what others are thinking across the country and how others are grouping themselves to talk about certain aspects of the constitution. We have been trying to react to this and trying to be a central point to enable people to be in touch with each other and to know what else is going on in the country and this I think is part of our concept of what would be a sound community-based discussion that could go on throughout the country over a set period of time.

In response to some of the requests we have sent letters out just at Christmastime suggesting to groups that the weekend of January 24 and 25 be focussed in their community on the

[page 52]

constitution and be a constitutional weekend and we are starting to get replies of interest back now, groups in Vancouver and Metro Toronto and here in Ottawa are just some that are organizing for this.

There is also a growing interest that out of these localized discussions they may be able to send representatives to a central place. We have not defined it yet, possibly a few weekends later where they could start to share ideas across the country. Also, we are being told that it is very important that we try to interest the media to help us in our dialogue with each other.

Mr. McGrath: May I interrupt you, because you are cutting into my time and I appreciate the point you are making but there are a few more questions I would like to direct to you.

First of all, I would like to point out to you that you are one of the fortunate groups. This Committee is operating under a deadline and we have to report back to the House by February 6; as you know, that has been extended. I might say that the statement that you made was very supportive of the arguments that we presented in the Committee and on the floor of the House in having the government agree to an extension of the time and I think you served us very well in that regard, but so far there have been 481 groups that have requested permission to appear here and you are the 85th group so you know that a lot of people will not be heard. There are 606 individuals have requested permission to appear. They will not be heard because the majority have deemed it inappropriate to hear individual witnesses apart from maybe five constitutional experts that we will be hearing later this week, and we have been denied the right to travel across the country, to hear from Canadians on a matter so basically important and fundamental as the constitution of the country, and here I refer to the central theme of your presentation that a constitution should flow upwards from the people and not downwards from the government, which this government proposes to do by its unilateral action.

We did succeed in having the proceedings of the Committee televised but I think it would have been very useful in order to serve the target groups that you have identified, and indeed the individual Canadian who has now expressed great concern about what is happening if we can believe the Gallup Poll and certainly they have been accurate in the past, and if we can believe the CBC poll and it, too, has had some success I might say in the past, then the majority of people in Canada share your concern about the process that is taking place and have expressed that concern by a negative reaction to the pollsters to what the government is doing.

However, I would like to—I know I will be getting a nod from the Chairman very quickly, I would like to ask Mr. Greenspan if he would include in the process he referred to in Appendix B, I see no role there for a parliamentary committee, it would seem to me it would be a very useful part of the process if in reaching the people of Canada, Parliament had some role to play through the elected representatives of the people and that you could see in this process a role for a joint

[page 53]

committee, perhaps not this Joint Committee, but a Committee of Parliament.

Mr. Greenspan: I think that it is important, whether it take the form of a parliamentary committee or whether it take the form of representations from the various provincial governments and the federal government in terms of animators, regardless of which form it takes, you have hit the nail on the head when you have said that there are not sufficient numbers of people or groups being heard. That is exactly our point.

I would see, and our group feels that this is not something which, that what we are putting forward is not something which circumvents the representatives of the people of Canada, we would hope for their involvement and we would hope that the various provincial and federal governments would set up a way and that would be their first function, would be to set up a way in which all the citizens of Canada could be involved in the constitutional process. After that animation stage, the next stage would be to report back to the representatives of Parliament, and finally, of course, to try and put whatever concensus has been reached in the form of a Canadian constitution made in Canada.

I think our ultimate conclusion, towards the end of the brief, is that it is not necessary to patriate, that we do not need that step, and if we follow this animation involvement of the Canadian public reporting back to Parliament and the concensus in the form of a constitution, we do not need patriation.

• 1720

Mr. McGrath: You would not see patriation as the first step of the process.

Mr. Greenspan: Definitely not.

Mr. McGrath: I see.

I only have one more question, the Chairman has signalled me that I only have a very short question that I can put to you.

I would like to ask you: in the short time of your existence, you obviously have met with a great degree of success in terms of the national organizations that are supporting the Canadian Connection, have you noticed any growth in interest in the whole question of the process of constitutional renewal that is taking place here and what future do you see for the Canadian

Connection once this Committee reports to the House because, when this Committee reports to the House, then there is no further opportunity for the Canadian people, even in the limited way we have had here, to involve itself in this very important program of constitutional renewal?

Mayor Dewar: Firstly, I think that we must look at the fact that, I hope, the Canadian Connection does not exist just to exist.

We have come together, as I have said, because there has been people that have a vested interest of wanting to opt in to the discussions on the constitution.

Secondly, I think that the groups that we have talked to, and when you say we have been a success I think that is strictly subjective, the only reason that you are reading success into it

[page 54]

is that I think it is the pulse of where the communities are right now.

Mr. McGrath: Anybody who can get these groups to agree on anything has to be spectacular in this respect!

Mayor Dewar: Not really. I think it is general interest. Sometimes we all agree that we disagree and I contend, and I think I am speaking for the Committee, that there is generally more consensus among Canadians than perhaps we, as politicians, I speak now as a local politician, tend to accept.

Mr. McGrath: A very successful one, by the way!

Mayor Dewar: At times.

But the thing that I think is really important is that there is a thread across the country that is saying that they are very interested and they are very keen. I do not think this is a partisan issue and maybe it is because I do not operate in the partisan format all the time. I see it as a Canadian issue and I am saying that I want to commend the government that they have got the resolution in the House because they have got the interest of the people by having this Committee and having these hearings, but I am saying do not stifle us and do not cut us off as Canadian citizens because we have got the ball and we are creative and we can problem solve and I am speaking as the collective we, you, as representatives and this country as citizens, and I think we can do something that is very unique and very exciting because I do not think it has ever been done without a civil war before that a country has really taken their constitution and wanted to create their constitution. That is what we are asking you to do. Then, you can rescind the BNA Act.

What has been happening, and I was fascinated to hear that the London Times had an editorial along these lines yesterday and that was not any initiative on our part, I assure you, but really what is happening is that I feel good thoughts that are creative thoughts that start to flow do eventually cristallize and jell, and that is exactly what I think is happening within our country today and I think it is really important that the polls seem to indicate that people want to be part of the discussion, the agendas get caught up on what charter of rights and what amending formula, we are saying to you that is not the agenda; the agenda is the process and how citizens get involved and how we get a new and creative constitution.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. McGrath.

Mr. Nystrom followed by the honourable Bryce Mackasey.

Mr. Nystrom: Thank you very much, Mr. Chairman.

I want to welcome my good friend Marion Dewar and her colleagues before the Committee today and say that I really welcome what you are saying about participation. I think the basic in a democratic society is democracy and involvement, participation right down to the neighbourhood and community level. I think that is the essence of our whole system.

I know, earlier today, Mr. Fraser was passing around an article in a Vancouver paper about the lack of parliamentary democracy and 1 think that was a very timely article about this

[page 55]

Committee and how undemocratic in many ways our parliamentary system is where committees have very little power.

So, to have a group come before us and talk about participation and democracy and community involvement to me is very refreshing, and I wanted to pursue this a little bit with you, if I may, Mrs. Dewar, and ask you what do you mean by a consensus, what do you mean by community participation. I notice you talk here of three or four options you refer to, a constituent assembly. How do you envisage this being established in various provinces, various regions, amongst various peoples; we have the Indian peoples, we have the Quebeckers or French Canadians.

Could you elaborate a bit more on what you mean by a consensus? When is it reached? How do we participate? What kinds of structures?

Mayor Dewar: I think the models that we talked about as a constituent assembly, for instance, alone is one that we have discarded and said that will not work just by itself and that is why Mr. Clarke addressed himself to Appendix B which is saying that we probably have to work at the model itself and make sure that we have the ability for the various groups and interested groups, special interest groups, Canadians, a broad spectrum of Canadians to be able to opt in to the discussions and I would defer to Mr. Clarke to maybe discuss the model a little more.

Mr. Clarke: If you wish.

Mr. Nystrom, the four models, including the constituent assembly, we have reviewed and essentially rejected. In fact we are recommending and saying very clearly that, based on our experience, an alternative approach needs to be found. Now, we have not spelled that out and the question from Mr. McGrath about the parliamentary Committees, my understanding of the process would be that might be an appropriate part of the process in terms of testing consensus because, as Mr. Greenspan spoke, I think animation can stimulate and encourage the development of consensus, but it is up to official bodies to test and act on that consensus and maybe Parliament would choose the parliamentary Committee.

What we are asking for is a new process. We think the experience of the 1950s, 1960s and 1970s—and some of us even go back earlier—give us messages about what we can create in the 1980s for a constitutional process. The specific dimensions, we have not spelled out. We have begun to describe them in three pages.

Mr. Nystrom: I would like at this time, Mr. Chairman, note that David MacDonald, one of our former colleagues, has entered the room. I welcome you back to your familiar surroundings, David.

Hon. David MacDonald (The Canadian Connection): This is not familiar, this setting!

Mr. Nystrom: And to also perhaps point out to Mayor Dewar and other people from her delegation that one of the members of the Canadian Connection, the Primate of the Anglican Church of Canada, Edward Scott, will be here

[page 56]

tomorrow morning as one of the five expert witnesses recommended by our Party. I am looking very much forward to what he has to say to us at that time.

Perhaps I can, in terms of Canadian involvement and participation, ask Mayor Dewar—I noted that she was out West, for example, back in November or December speaking to the Western Canada Foundation Conference—what she has picked up in other parts of the country. Did she pick up a growing sense of people wanting to be involved? Is the package before us one that is going to unify the country or further divide Canada? Is it good or is it bad for the country? What are people saying to you?

I suppose, in many ways, you are very much of a person that is very pivotable because you are the Mayor of the National Capital, the Mayor of Ottawa, the Mayor of this place where all these decisions are made and imposed on people. Mayor Dewar: Not in local government!

Mr. Nystrom: How does the Mayor of the bureaucratic center of Canada perceive the rest of the country?

Mayor Dewar: I take exception to some of the negative comments about our community, Mr. Nystrom, because I happen to think that the City of Ottawa itself and the people that live here very much do mirror what the rest of the country is all about, both our flavour of bilingualism—you know, people talk about it as being the cold bureaucratic community and it is not at all, as you well know, as you participate in the activities that go on in this community, and I think that that is one of the responsibilities this city has. It has a responsibility to reflect what the day to day life of Canadian is and how we come together and organize ourselves as the local government.

However, when I went to the West, and I went to speak to the Canada West Foundation with a bit of reluctance due to having just come through an election and with Christmas coming up and having a family and so forth it just does not flow easily but I thought it was important, I participated in some of the workshops earlier and I have to say to you all that I was almost feeling that I was going to have to go on the podium that night and apologize for being from the East because I was hearing a lot of resentment, I was hearing a lot of hostility and it was something that I was not used to. I like to sort of bounce in and out of rooms where Canadians are, and feel a part of it.

When I spoke that night, I spoke of myself being a native Quebecker that has spent most of her adult life in Ontario and yet saw many of my traditions as a Canadian and as a Canadian woman, I must say, with the whole Person’s case that started in the province of Alberta, very much tied in to my identity and it was a case of me being part of them and them being part of me. And I thought that was very important. And as I talked about this that night, I was pleased to say that I am not known as a particularly good orator and I got a standing ovation but, more important, I had people coming to me and some mature gentlemen with tears in their eyes saying to me, why are Easterners talking to us this way, you sound as if you really care about us, and I said I do not care any more about you than I hope you care about me and if we get into the whole discussion of how we want to be governed, I am sure we

[page 57]

will find more commonalities than we will find differences, and I am convinced of that.

That is why I am asking you to please stop the present process—I think you, as a Committee can do it but I am not sure—and recommend to Parliament that we look for a process that is all encompassing, that involves the people of Canada, that will come up with this consensus because I know the solutions are out there and I ask you to let us find those solutions and you will be the ones that will be responsible for it.

Mr. Nystrom: Do I have time for one more question?

The Joint Chairman (Mr. Joyal): Yes.

Mr. Nystrom: Perhaps I can ask this of our former colleague, David MacDonald.

I would like to ask Mr. MacDonald whether or not he can comment on the referendum procedure that is outlined in the resolution before us. As you know, this is a referendum procedure where there can be a national referendum conducted by the Parliament of Canada unilaterally, without the consultation or consent of the provinces, on any constitutional issue, even issues that are solely within the jurisdiction of the provinces today, where the rules are written solely by the Parliament of this country, where the questions of finances and publicity and so on are determined solely by the Parliament of Canada. I wonder whether or not your association has taken a stand on this and, if so, what is that position?

Mr. MacDonald: Messrs. Chairmen, we have not taken a stand specifically on the referendum process and perhaps it would be unfair to go much beyond that.

If I can make a personal remark, the theory of a referendum, I think, for anybody who believes in true democracy and public participation always seems to be an attractive one. The practice in our own history has been that referenda have been used primarily to resolve some kind of impasse or perhaps even in a situation in which a great deal of polarization will take place.

I think in something as fundamental as resolving issues around our constitution, the use of referenda we would regard as being essentially one that would be more destructive than positive and since it is in the present proposal as a kind of fall-back position which would be quite some piece removed from the over-all thrust of the approach, we have tended not to deal with it in specific terms but rather looking at the over-all process, seeing whether it is basically appropriate or positive or whether there is an alternative one that is better.

That is the sum and substance of the brief you have before you today.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

The honourable Bryce Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman.

I want to welcome my guests on behalf of my Party and particularly Mayor Dewar. I have, like so many people around this table, been in Parliament a long time and I probably slept more often in Ottawa than in any other place in Canada. I am

[page 58]

particularly impressed, Mayor Dewar, by the leadership you have provided in making refugees from other lands welcomed into Ottawa at a very sensitive time that might have changed your political career. It was a courageous act and I very much approve of it.

I want to be perhaps politically heavy here, if I may, I am sure you do not mind that, we are here to get information.

I might say that had something called the Canadian Connection existed five or ten years ago, maybe our premiers might have been a little more enlightened in their determination for trading human rights away for fish and oil and political power which is the reason why at the last conference the Prime Minister tried to make human rights something non-bargainable and I think that the failure of that particular conference, and I say this quite as a partisan but one who cares very deeply about this conference, that it was the selfish attitude of the ten provincial premiers in the dying moments of that conference that spelled the failure of that conference at a time when, I think, Canadians felt exactly as you have stated. We underestimate Canadians and the referendum brought concern right across this country that we want to keep this great country of ours united, but elected officials have to take responsibilities and that is why we are here.

If we had waited for a consensus on the Canadian flag, we would still be waiting, and I was in that debate. I remember the polls, I dug them up the other evening, our move, our leadership in coming forward with the Canadian flag was very unpopular. I am not too concerned about the Gallup polls because, being the eternal optimist, I also read that Canadians are concerned enough to express an opinion, and that is important.

How successful this operation is, I suppose, will be determined historically. For instance, we have met 84 groups. That, believe it or not, represents many millions of Canadians. When, for instance, the Anglican church is represented here tomorrow, it represents millions of Canadians, just as when the Catholic church appears here, just as when the Bishops will appear here, just as many other groups.

So, to suggest that we have not been tuned in, I am not arguing with your group but I am probably taking issue to some of the questions that were raised, they were leading questions, we have attempted to get to the grassroots with this procedure and I think one of the vivid examples of this is the fact that no less than 17 groups from the Aboriginal people have had their first opportunity to participate in things that affect their lives. So, this procedure has been useful.

The question about how much time you had is something I apologize for no longer, I am sorry to say. The witnesses are selected by an all-party committee supported by Mr. Dobell whose role as a nonpartisan, nonelected official is to provide as much guidance as possible and to arrange under the most difficult of circumstances our schedule. I think…

[page 59]

The Joint Chairman (Mr. Joyal): I am sorry to stop you, Mr. Mackasey, the honourable Jake Epp wants to raise a point of order.

Mr. Epp: Mr. Chairman, I apologize to my colleague for interrupting but I have to state quite clearly to Mr. Mackasey that where attempts have been made to do proper scheduling, I think it is generally agreed that that has been done under a best adverse conditions, there has not been agreement and especially in terms of deadlines and selection, there has definitely not been agreement.

Mr. Mackasey: Mr. Chairman, I will not debate the point of order at this moment other than to say that if I felt that negative about it, Mr. Epp, I would have raised it in the full Committee before this. You might have found some sympathy on my part.

Mr. Epp: Mr. Chairman, again a point of order. I have raised it many times, Mr. Chairman.

Some hon. Members: Hear, hear.

Mr. Epp: And Mr. Mackasey knows it. I wish he would stay with the facts.

Mr. Mackasey: Mr. Chairman, I am not going to bow to the temptation of debating with Mr. Epp. I am more interested in our witnesses but I have to say quite categorically that we have done very well under a very trying situation.

The fact that over 400 groups want to appear and that so far we have been able to hear 84, I suppose it can be seen as a compliment to you that you are the 85th but we think it is equally important that you be here. Canadians most certainly want to participate; you are absolutely right. I think it is rather idealistic and naive to think that we are going to stop the process at this stage and then wait for the Canadian Connection or other similar groups and a groundswell that somehow it is going to lead to a consensus but in the event that that is possible, I think we are overlooking a fact, and I make this plea perhaps to your group more than to any other, that is to realize the potential that is available from Section 33 of this proposed resolution.

If you do, and I am prepared to join your group and suggest to my groups that we join, because if perchance you are successful, God knows I hope you are, we have 24 precious months before us and just let me explain this. I am not articulating it properly. When this repatriated Constitution comes back to Canada, there is a 24 month period where the Constitution cannot be amended other than by the traditional method. In that 24 month period, if your group can exert the powerful influence it should on parliamentarians, on this Committee, if we are still in existence, on the Prime Minister and on the provincial premiers, then it is not inconceivable that the federal government and the provincial premiers can sit down in that 24 month period and reflect the views of concerned Canadians which you reflect so eloquently here today.

I think that point has been missed. I think it is in there for that purpose.

The referendum, to which Mr. MacDonald paradoxically takes issue, is the total participation by all Canadians, certainly

[page 60]

much more consistent with an idea of a consensus than the opposite. The fact that it may be disruptive, of course, I am surprised that Mr. MacDonald would be concerned if it is disruptive. A referendum is the ultimate in a democratic process but in the event that the premiers do not want to test the referendum, they have 24 months to sit down with the federal government, have a provincial-federal conference and there for the first time indicate that they are more concerned about individual Canadians than they are about provincial power, and I suppose you could say the same thing about the federal government.

• 1740

So, these are my last words, because I know that I usually go on too long, and I want to hear your comments, Mayor Dewar.

It is wrong to think that this is the end of the road and therefore you must stop the procedure. I am saying it is only the beginning, and that there is a 24-month period during which we can (a) improve the Charter of Human Rights; (b) amend or change or eliminate, if necessary, the amending formula that is here and come up with a better one. All the things that you and I want are quite within the grasp of the provincial premiers.

I would like to say that Premier Hatfield agrees with that. Premier Buchanan intimated that such a meeting would be useful.

I think if there was that groundswell out there, that you feel is there—and I do feel it too; but where I differ is that we must stop this work here until you come to that consensus. Maybe I have been around so long that I am cynical about your achieving it.

But I do think that in the next 24 months you can demand of all your elected officials, including the provincial premiers a better standard of action on this issue than they have shown in the past.

Mayor Dewar: Mr. Mackasey, I want you to listen, because you did not hear me.

I do not say that facetiously or with any disrespect. First of all, as regards the flag debate—and I happen to be one of those naive Canadians that put the various flag designs on our car and drove across this country and took all sorts of slams about how dare you put anything there besides the Union Jack.

But I felt very strongly at that time that Canada needed an identity. That was a symbol, an emblem.

But we are talking about a constitution, a way that we are going to be represented and governed, the way we are going to relate to each other as people. To me, that is a much deeper issue than an emblem.

I do not for one minute question the need for our politicians to lead, and I am looking to you for leadership today, for leadership to say to the Canadian people: “Yes, we want you

[page 61]

involved in it.” I get concerned when I hear you just referring to premiers conferences of provinces.

I do not happen to believe that the premiers of the provinces represent the whole of their community in their provinces. I take great exception to that, especially as a local politician, and I too would be remiss if I were to suggest that I represent- ed everybody in the City of Ottawa.

But I really do think that what we are trying to put forward to you is something that the Honourable Monique Begin was saying to the Rotary Club in Ottawa in June, because I can remember calling her and saying, “You know, your speech was exciting,” because her speech was very much a part of what we are saying today—get the grassroots involved so that they can participate and do not, after the fact, say I did not know what had happened. Canadian people are inclined to do that, and that is why I say you certainly need to be commended that we are at this stage now.

But, to suggest that patriation is anything but a psychological approach, I think is remiss; because it is really important that we, as Canadian people, want to set our own direction as to where we are going and to establish what it is.

It is a much broader agenda than the Charter of Rights or the amending formula. However, I think we are capable of designing that and then, the BNA Act can be rescinded.

It seems to me that we—myself included—got caught up in patriation first, because I thought that we had to own some- thing here; and then suddenly realized: why are we amending a British Statute? Why are we not creating a Canadian Statute that is a Canada Act? It is exciting, and people are ready for it and we are sophisticated enough to do it.

Now, that is not to say anything negative about our traditions or history. I think it is a reinforcing of the pride we have in our history and traditions.

We have a fairly good track record of accommodating our minorities by consensus, and that means that we talk things through and that we arrive at things which are not too detrimental to each other, because we really do have a respect for each other and I would like to see that continue.

Now, I do not wish to carry on on that. But when you start talking about Section 33, please do not forget local governments. I am not here as a local politician today. I am here because I feel it is a broader discussion, and I wish the premiers of the provinces and you, as MPs, could see that it is a broader discussion, and that it is not just the premiers and the MPs and the MLAs and MPPs; it is the Canadian people; and that is what I want you to hear.

I see that Mr. Greenspan wants to say something.

Mr. Greenspan: You mentioned that millions of Canadians have been represented as a result of the various people you have heard so far.

[page 62]

I ask you about the millions of Canadians who have had no opportunity whatsoever and will not have any opportunity whatsoever in the next 24 months either.

You also said that we have done very well under trying conditions. I say to you, who created the trying conditions and why?

Mr. Mackasey: I can answer that, but it would take a little debate, because once again you do not know what trying conditions I am discussing. If you are talking about petty things like television, there is no problem with me, because we agreed to this. I can talk for myself more than they can over there, because I know how I voted on that issue.

But these are incidental to the main purpose. There have been trying circumstances. These have come in after a very potentially divisive time in the history of Canada, namely the failure of the last federal-provincial conference, and the referendum in Quebec, and the anticipation of that province that we would do things—and fundamental things—which those premiers had an opportunity to do and flunked. That is the trying time I am discussing.

Mr. Greenspan: I think the trying time is that there is not sufficient time for the Canadian population to be involved!

The Joint Chairman (Mr. Joyal): I think Mr. Clarke wants to add something.

Mr. Clarke: One of the things which has come as a result of this Committee in terms of people making submissions to the Committee, and one of the features of the process we are proposing this afternoon, is that it is a form of participation for people to come and appear before a committee of this sort, and a very valuable and important part of our tradition.

But we envisage a process where the people could come and talk here and also talk with each other in their own communities.

I was profoundly moved a month ago when the Union of B.C. Indian Chiefs’ Constitution Express came to Ottawa and gave an opportunity to Ottawans to talk with native people and to share their culture and discover the richness of the traditions of the native people.

I think it is that kind of new approach—a new approach which is not just based on the emotion of a constitution, but is in fact based on a different reality of the eighties, a very serious problem for all of us as Canadians, in the energy field, in social assistance, human rights—problems we want to address in new ways.

We see in the proposals we are making this afternoon a beginning to finding a new way to work together in the eighties and a more appropriate way which would result in more positive and creative results.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Clarke.

The honourable Perrin Beatty.

Mr. Beatty: Thank you very much, Mr. Joint Chairman. I would like to take up a point Mr. Mackasey was making.

[page 63]

If you were to listen to the argument that he was making, one would get the impression that we are in the fix that we are in today because of 10 provincial bullies picking on poor granny Trudeau as opposed to its being a case of one individual believing that his vision of Canada is the only acceptable one and that he wants to see that imposed.

I think the presentation which has been made here today by Mayor Dewar and her colleagues is probably one of the best presentations which the Committee has had before it to date.

You have made one essential point about process here, and that is that the constitution of Canada belongs not to the politicians but the people of Canada, the most basic law of the land, the same work which sets the basis for their relationships with one another, which defines the aspirations of Canadians—that should be the result of discussions among Canadians, discussions which result in a true consensus rather than the result of being a process from the top down, where one man imposes his vision with an artificial deadline upon the rest of Canadians and looks for excuses for an unnatural timetable and for saying why it is not possible to have Canadians fully involved in our constitution.

But I think you will recognize yourselves that the proposals you have made to us today as they relate to process have not been entirely specific in terms of the steps you would want us to go to at any particular stage.

First of all, therefore, when you say you do not see patriation as being the first step, is what you have in mind writing a constitution in Canada and simply proclaiming it as the constitution of Canada and asking Westminster simply to recognize the legitimacy of the new constitution?

What do you see in terms of Westminster’s role ultimately in amending our constitution?

Mayor Dewar: I see the role of Westminster—and I am certainly not a constitutional lawyer—that we would enact our own constitution within our own Parliament and at that time ask Westminster to repeal the BNA Act.

Mr. Beatty: There would ultimately be a formal act taken by Westminster to patriate our constitution, to turn over the authority to Canada.

Mayor Dewar: Well, by repeal it would end and the constitution which then existed would be the Canadian constitution.

Mr. Beatty: It would, for example, repeal the element in the Statute of Westminster which maintains some British involvement over Canadian affairs.

Mayor Dewar: I think what we probably could do is if we chose, if that is where we found the people at, we would write an end to the new constitution. But what we would be doing would be to free ourselves as a people to be very creative as to how we are going to be governed and what shape our country would take in the future.

I see that as just reinforcing our traditions. We are fairly traditional. We would build on that.

[page 64]

But, at the same time, the responsibility would be ours. It would be us, as Canadians, saying this is what we want: please, Westminster, now that we have grown up and defined our own contract with each other and how we are going to relate to each other, therefore, would you please repeal all the governing power that you have.

Mr. Beatty: One thing I would like clear. It is clear from the public opinion surveys that a significant majority of Canadians are in favour of patriating the constitution today. Now that is if you stay away from other elements of it, like saying are you in favour of the Charter of Rights and what have you.

Why must patriation come as a last instead of a first step? If it appears to be the wish of the vast majority of Canadians, why is it not acceptable to you that we simply ask Westminster to patriate the Canadian constitution with an amending formula agreed upon here in Canada so that Canadians could then engage in the process you are talking about of dealing with specific amendments to our constitution here in Canada?

Why does patriation have to come last instead of first?

Mayor Dewar: Because as I started out speaking to you this afternoon, I said we have evolved our thinking. This is part of the evolution which is taking place within our own group, because as we started to realize with patriation it became much more than a simple psychological thing that you are going to have a statute in Canada.

We really came to the conclusion that we are quite capable of accepting a time frame and arriving at a Canadian constitution that would be acceptable.

There might be some areas which are very diversified and contradictory, and maybe those would be left alone for a while. We do an awful lot by convention.

Therefore, as long as we recognized the fact that we had the ability to govern ourselves with our preamble, with some basic Charter of Rights, that comes through a participation process with the Canadian people, an ability to amend some of the basic institutions we want to retain and reform, that sort of thing could be done within a reasonable time frame; how our native people really are going to relate to us, do they want to be part of us as Canadians. I heard the Canadian Chiefs say, yes, but within some discussion of how they could be part of that.

Once that is done, the British North America Act is repealed, and I see ourselves going through adolescence and we become adult.

Mr. MacDonald: This is crucial to our presentation and to your question. As Marion Dewar said, we did start with the same notion as everybody else in this whole business, that there has to be patriation for Canada to finally own its own constitution.

In the work we did over the fall in coming to grips with this, we came to a rather surprising realization that in the whole approach to patriation there is, in a sense, not a forward step

[page 65]

but a backward step, because in a sense we are moving away from our own sovereignty rather than towards it.

It seems to me, particularly with the elaborate quality of this particular approach with amending formula and entrenchment of a Charter, we are saying both legally and psychologically that we must do this through the exercise of the legislative authority of another country.

Mr. Beatty: What Mayor Dewar is saying is that ultimately we must do it by having Westminster repeal authority.

Mr. MacDonald: Yes, but in a sense only in a final consequential act to the building of our own constitution; in other words, if essentially the constitution is built here, then the significant act which takes place in legal terms is the lapsing of a document which is no longer necessary for us in terms of our own constitutional framework.

Mr. Beatty: Another element which is a bit perplexing for me is this question. It seems to me to be the accepted wisdom of the country, David, that what you need is a sort of package, a be-all and end-all, be it a whole constitution or significant reforms to our present one, and this is the new constitution for Canada.

But in fact what we have in Canada today has been the result of a process of evolution which has lasted more than 100 years and it is presumptuous on our part, and on the part of our contemporaries today, to assume that any reforms that we make will necessarily be what we will be wanting to have cast in stone for all time.

Surely, the question of constitutional reform is an ongoing process.

Surely, there may be agreement to move with a particular package at any one time; but we should never presume that what we are doing is proclaiming a constitution in Canada which is in some way inflexible and which should not be part of a continuing process.

Mayor Dewar, you have mentioned that you felt that some sort of time frame could be developed here, but what I find attractive about simply patriating the constitution and sitting down ourselves to talk about what we want to do with it, is that we would see the amendment of the Canadian constitution as part of an ongoing process, and where there was consensus today we could move immediately without having to wait for, say, two years or however long.

But in the case of other more contentious issues where public opinion is developing or where technology or legal developments require changes to be made in the future, that could be dealt with at that time rather than having to be rushed now.

Why do we have to take the package approach rather than simply patriating, having the ability to change our constitution in Canada and embarking upon the process you are talking about, involving Canadians in the modernization of the constitutional process which has taken over 100 years already, and which should be going on well beyond the next 100 years, I would think?

[page 66]

Mayor Dewar: I would have to ask you, Mr. Beatty, why patriate? If you patriate, what amending formula? That is my concern about patriation. Are you becoming locked into something instead of being freed?

Mr. Beatty: No. Ultimately, when you patriate, whether prior to constitutional change or after, you are going to have to have an amending formula which, ideally, would have to be the result of a consensus.

On our side, we believe there is a consensus in the so-called Vancouver Formula, something which would be acceptable to the provincial and to the federal governments, if modifications

are to be made to that which could be agreed upon and supported, that is fine too; but the important element here is that we cannot go to Westminster today to ask for minor changes to our constitution if only for the reason that the British Parliament has its legislative timetable clogged up and it is very difficult for them to find the time to make minor changes to the Canadian constitution.

One legal argument which can be made for patriation is that if we had agreed upon an amending formula in Canada we would not be taking dribs and drabs to Westminster to ask them to make changes as there was a consensus in Canada; but as that consensus developed, we would be, using a Canadian formula, be able to make those changes in Canada without having to go to another country.

Mayor Dewar: But my concern is that you are addressing the same thing as Mr. Mackasey addressed, that the Canadian people are totally in agreement with everything that their provincial and federal governments do.

I think the Victoria formula certainly was not anything which came from debate of the Canadian people. It was the arrival of a consensus among the premiers and the Prime Minister.

I am asking you to look at something which has much more profound implications insofar as involving people are concerned.

But I know Mr. Greenspan also wants to address your question probably from a legal point of view.

Mr. Greenspan: I think we have been blinded by this bluff of patriation. And it is that—a bluff. We do not need it.

I say to you, why not make the constitution here and tell Westminster they can take the Statute of Westminster and the BNA Act and do what they want with it.

Why do we have to have patriation first and the amending formula?

Our group believes—and we were initially blinded by it too. We were in that same dilemma. Why patriate?

If you were to ask Canadians, do you want to patriate the constitution? They would say, “Sure, bring it home. Fantastic.”

[page 67]

If you ask Canadians if they want to bring it home or if they want to make it here themselves in Canada, then you will get a completely different response.

We are saying make it here in Canada and let us show the sovereignty of our own people and consensus in our own country.

We do not need patriation. What we need is the development of an amending formula and all other aspects of the constitution in Canada.

• 1800

Mr. Beatty: Mr. Chairman, I recognize I am out of time but can I just get clarification on the last point. I apologize because when I asked Mayor Dewar before I got the impression that she did indeed refer to patriation following agreement in Canada because that is precisely what repeal of

Section 7 of the statue of Westminster is, that is patriation, and I suspect we are quibbling about semantics here because ultimately Westminster is going to be called upon to pass legislation which repeals its authority over amendment…

Mayor Dewar: I meant repeal. If I said patriation, I meant repeal.

Mr. Beatty: No, but that precisely is patriation, when they give up their authority to amend Canada’s constitution we have had patriation. The authority has been patriated to Canada.

Mr. Greenspan: But I think it is two different legal acts. If you repeal an act in Britain or if you amend an existing Act to enable Canadians to develop their own constitution, that is two different acts, and what we were talking about is there is no necessity for patriation but there would be a formality of a necessity to repeal.

Mr. Beatty: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Beatty.

Mr. Clarke on a short comment.

Mr. Clarke: There is a point where traditional rights are vested, historically the BNA Act describes the relations and differences between provinces but one of the points that has already been made before the Committee, and the focus on patriation continues to blind many of us, is the fact that the native communities entered into agreements with the Crown and so that we are saying that you opened up something much broader than a specific act and patriation not only focuses on the British instrument but it does an injustice to the relationships between people living in this country, and I think that is an important aspect in our shift away from patriation.

The Joint Chairman (Mr. Joyal): Thank you very much.

The honourable David Crombie, you have a short question to address to our guest?

Mr. Crombie: Yes, just one, dealing with the question of that curious Canadian word “patriation”. I was so impressed,

[page 68]

Mr. Chairman, with both the presentation and the recommendations made by the Canadian Connection that I did not want their major effort to be lost in the discussion on patriation.

Like so many words in our constitution, I am sure the group would agree, Mr. Chairman, that the word “patriation” means anything Canadians want it to mean, and we could mean it to be process, we could mean it to be product, we can sell it, we can package it, we can bury it.

I take it what you are saying is that the only way in which Canadians can deal with the constitution properly, with their own constitution, is to make it themselves, that is your point?

Mayor Dewar: Right on.

Mr. Crombie: Good, we agree.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Crombie.

Mr. Hawkes on a short question.

Mr. Hawkes: Thank you, Mr. Chairman. I want to deal with Appendix B and just with one short question. I think your whole process speaks to the potential for dialogue, creativity, the unification of the country, the inspiration, the wisdom that can come out of people collectively. It falls a little short, I think, in the specifics of the mechanism and it falls a little short, I think, in the sense that it does not deal with precision, and the issue between Mr. Mackasey and yourself around the difference between a constitution and a flag probably departs at the point around precision.

In social science literature there is a technique called the Delphi technique and I am not sure how many of your committee would be familiar with it, but it was used in the United States as an important principle in involving large numbers of people in the planning of men landing on the moon, and the essential elements of that were to have people in a broad spectrum contribute sets of ideas, a small group to write up those ideas, then return that written document to that same base level for a rewrite, for further input, and to go through that process three, four, five times, and the result was a flawless landing of man on the moon because the collective wisdom was utilized through this kind of process.

Is that a feature, this Delphi technique, is that a feature that might be usefully employed and would fit in with your Appendix B and might produce the kind of constitution that this country would benefit from and have joy in having?

The Joint Chairman (Mr. Joyal): Mr. Clarke.

Mr. Clarke: Thank you for that comment about Appendix B because it is intentionally vague, intentionally designed to be the basis for discussion with governments, with governments I think is an important aspect, not just with the federal government but we would hope to engage provincial governments in a discussion on design.

You mentioned the Delphi method. Yes, adapted to Canadian communities, the nominal group process, in fact has been a characteristic of the way this group has worked, the Canadian

[page 69]

Connection, and more significantly it is becoming an important technique, not the Delphi method specifically or the nominal group process, but Canadian adaptation of those throughout Canadian communities, and our references in Appendix B to some of the earlier attempts, the Royal Commission on Bilingualism, the Berger inquiry, took into consideration techniques that are available and are being used for a number of issues at the local and provincial level.

We are saying: let us build on that past experience but not come to you with a package, but come to you with some features as a basis for discussion about a new process.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.

Mr. Tobin for a short question.

Mr. Tobin: Thank you very much, Mr. Chairman.

I have to say to the Canadian Connection that I find, I do not know whether I agree with what you have proposed but I find it very interesting and very stimulating and I just want to be clear on one point.

I address my question to Mr. Greenspan. In listening to what you have had to say, 1 do not know if 1 have followed you, but essentially what you are saying is a constitution that is the result of the collective thought processes of the Canadian people as a whole or as represented by various groups and organizations is created, and because it is created by the people of Canada, declared by the representatives of the people of Canada in Parliament.

I am trying to get some clarification on the point Mr. Beatty raised, we are not talking about patriation, we are talking about declaring our own constitution, we are a country, this is our constitution, here it is, Britain. It is a unilateral declaration. Is that correct or not correct?

Mr. Greenspan: Correct except for the use of the word “unilateral”. It would be multilateral involving all facets of Canadian society.

Mr. Tobin: No, no, but using the word “Canada”, concept Canada, versus the international stage…

Mr. Greenspan: Yes, that is correct.

Mr. Tobin: The unilateral declaration of independence?

Mr. Greenspan: Yes, that is right.

Mayor Dewar: Yes, exactly.

Mr. Tobin: I just wanted to be clear. Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Tobin.

Mr. Rose, you, too, have a final question.

Mr. Rose: Actually I have a number of questions but I will not require answers to them all, if I might just take a moment to list the things that have been troubling me and hopefully this will probably declare to the witnesses some of the things that concern me.

[page 70]

Now, when the Premiers alone had the ball in those conferences, there was no mention of people involved, it was all left up to the Premiers and I for one am quite pleased that for once at least the federal members of Parliament, and Senators, have had an opportunity to participate in this dialogue and I think if the Premiers had been so fortunate to have settled this whole matter of the constitution and its patriation or the declaration unilaterally, then we would not be involved and neither would be the Canadian Connection. So I think the fact that we have done this in a federal Parliament has made some gains for us and has had some value.

I do not understand what is meant by consensus; does it mean 50 per cent are for it, 60 per cent, 70 per cent, how do you go about it? Is it through collegiality, as my colleague Mr. Hawkes talks about it, and various other kinds of involvement? How do you measure it? How do you know when you have got it? How long do we need for people involvement and the arrival of consensus? The process is extremely important, you say, and yet you call for more time. We have all called for more time, certainly on this side, and you talk about freeing us up as to how we are to be governed. I do not know how we go about freeing one another up, and it seems to me if we are going to have an entirely basic change made in Canada to sort of the way we relate to one another, are the powers of the provinces going to be altered?

What about the traditional rights of the provinces under the BNA Act? What are the traditional rights of the aboriginal people under the BNA? And so you pose a lot of very difficult questions for me personally and you are a little bit short on answers.

The Joint Chairman (Mr. Joyal): Mr. Clarke.

Mr. Clarke: Could I pick up on consensus, because I think this allows us to emphasize the point of an earlier question.

The responsibility of Parliaments and legislatures to test and interpret consensus remains in the new process. What we are asking for is support and encouragement to the discussion that you are aware of and that occurs in your ridings and in your communities, but the responsibility for measuring and determining consensus remains with the elected representatives and it is just as Mr. Rose knows, it is not 50 per cent, 60 per cent or 70 per cent, it is in fact a sense of where the country is.

The essential element of the process that we are talking about is a learning process, that through discussion, through interaction with the people in the community and through interaction with MPs and Senators there will be opportunities to perhaps define or describe consensus throughout the process.

The 24 months that Mr. Mackasey refers to are important months and in our early discussions we focused on the 24 months and that opportunity. In that 24 month period, and in the process that we are describing, the integrity of the existing institutions to interpret consensus and to make decisions remains. We are not suggesting that the Canadian people want

[page 71]

to do your job, but we are saying that there is another job asking to be heard and that is why we are here today.

Mr. Mackasey: I might just say that I agree whole heartedly with you. I do not want to leave the impression that I do not. I am simply saying that if you can put that kind of deal to the 24 months, you will have everybodys support.

Mayor Dewar: As long as we do not have too much entrenched that we have ourselves divided, that is my concern.

Mr. MacDonald: Well, I wonder if I could just speak?

Mr. Mackasey has raised again the comment he made earlier about if we get through this then we have got our marching orders for the next 24 months, and there is an assumption there that is on the one hand commendable and on the other is perhaps not accurate, and that is that at the end of this particular process we will be in better shape to do what he hopes we will do and as is represented by this brief, and 1 would ask him, looking at the third page of this brief, looking at the three principles that have been enunciated in terms of constitution change, whether he thinks the current process really meets those, the whole business of whether people are sensing that they have a vital role to play in this present process, that it really does reflect a sense of the best of the aspirations we have about this country and that there is a real opportunity for the kind of participation he looks for in the 24 month period?

My fear, and I think the fear of the Canadian Connection, is that rather than just proceed through this phase in a kind of neutral stance and open up what would be a positive opportunity, that we are doing some rather serious damage and the possibility of achieving something at the end of the 24 months is very much debilated by this present process. That is the concern.

If he could satisfy this group and others that we are going to have a better situation, a better atmosphere, a more constructive situation, then I think we might have a different point of view but we do not see much evidence of that.

• 1815

Mr. Mackasey: David, you and I have discussed these things for generations.

Mr. MacDonald: A while, Bryce.

Mr. Mackasey: I want to emphasize, you presume this process may be an adverse one and I am presuming the opposite. Do you give me that same right to be optimistic about the procedure?

Mr. MacDonald: I would like to see the proof, Bryce.

Mr. Mackasey: That is right, and we are only going to see the proof when the matter is over.

My point is simply that we need movements such as your own. We need it very badly. My only regret is that Canadians tend to wait until the last possible moment before becoming involved.

[page 72]

I am only suggesting to Mayor Dewar that the solution is not halt until we proceed. I am only saying that there is room for both and in 24 months if we work assiduously at this and if there really is a groundswell in 24 months surely the Prime Minister of Canada and the federal members of Canada and the provincial Premiers will be aware that there is a groundswell and would put their own selfish interests aside and accomplish what you want. In other words, we need the groundswell that you say you are representing and we need it badly and we need it particularly over the next 24 months. That is my opinion.

Mr. Clarke: I think we are saying that you have got it.

Mr. Nystrom: One short question, if I may, to Mayor Dewar or to Mr. MacDonald, whichever one cares to answer. In terms of finding a concensus, did you find the process in the report of the Pepin-Robarts Commission to be worthwhile and to be very useful? They travelled the country for quite awhile and had a lot of hearings and made some pretty serious recommendations, many of course which are being ignored by the government across the way. Do you find that to be moving towards a concensus, and do you have any comments on it?

Mayor Dewar: I think that was a useful process, but some- thing maybe we have neglected to identify here is the need we see for groups to talk to each other and we think it is very important that groups not only share with you but have the ability to share with each other and it is certainly my personal view that something that is very detrimental in our society today is the poll-taking for politicians, because it seems to me that if I am asked in isolation whether I like or do not like something I will come up with a definite answer, but if I have been given time to discuss it and hear your point of view I might have a very different answer.

I reflect that just on a cold day and when you are coming in and you are very cold and somebody says, “Do you like the winter?”, you say “No”. If somebody says to you, “It was great skiing and the snow was crackling and the sun was shining, do you like the winter”, and you say “Yes, there are parts of it that I really do like”. I think that is what we do as Canadians, and when public policy starts to get formed by poll-taking it is very dangerous. Therefore,! think we really do have to have the ability to share our thoughts with other groups and I would like something in that.

I am glad that Mr. Rose finds many difficult questions, because they are not nearly as difficult as the questions that we have asked ourselves, and made us recognize that there are minds greater than ours and further discussion that has to take place to answer those.

About the protection of the power of the provinces, I harken back, how our local municipal government is going to be heard? We are creatures of provinces in this great democracy. We do not even exist in our constitution. I put a lot of time into a nonexistent body in my life because it seems to me that I hope I am doing something that is positive.

[page 73]

But those are the questions that we all have to ask ourselves, and I think that we have to have a forum to ask them. I am very concerned when I hear Mr. Mackasey say that we can do it in the next 24 months after patriation. I am terrified that we are handcuffing ourselves into a situation that we will not be able to get out of.

Mr. Mackasey: I am not sure that you would want to get out of it…

The Joint Chairman (Mr. Joyal): I am sorry Mr. Mackasey. I saw that Mr. Clarke had something to add to the intervention of Mr. Nystrom, before you intervene again. Mr. Clarke, you had something to add?

Mr. Clarke: No, I am sorry.

The Joint Chairman (Mr. Joyal): I do apologize then. Mr. Mackasey, you had something to add?

Mr. Mackasey: I want to say to Mayor Dewar, at the worst, or the best, we are going to bring the constitution back. Importantly, we are going to very shortly, hopefully …

Mayor Dewar: Why?

Mr. Mackasey: Let me finish. It will include an amending formula. Without one, you might as well leave it where it is.

Mayor Dewar: That is right.

Mr. Mackasey: It is going to include a Charter of Human Rights which will not satisfy everybody, but 1 think our mistake is to presume that is the end of the process. I think Perrin Beatty made the point very clearly that we will be amending our constitution periodically for another century and centuries after, facing the reality of the future. What we are trying to do here is make it a little easier, and ironically closer to the views of the people. If we act a little faster we will be able to reflect concensus in, for instance, the Charter of Human Rights. At the present moment, we probably have concensus on very few things, fundamental rights, freedom of speech, freedom of religion, freedoms that this country has taken for granted. Those things must be enshrined in a constitution. I come from a province where I saw my fundamental rights wiped out by a piece of legislation called Bill 101. I am sorry to say it, but I feel that deeply about it, and perhaps for the first time I realize how fragile rights are, enshrined in provincial legislation.

Mr. MacDonald: I find this very strange, Mr. Chairman, because Mr. Mackasey has been sitting in this Committee as I understand it, since its beginnings in October. He has heard from a number of rather major groups who feel themselves very much threatened by the action that will be taken in terms of this patriation effort. I would assume, if I can complete this thought, I would assume that as a person who has spent a long time in public service in this country that he realizes that there is never just one solution to a major problem. He is suggesting that this is one and perhaps the best solution. I wonder how he feels that in the process of the last couple of months there has been a kind of confidence generated, the kind of positive

[page 74]

process established that is going to achieve what he sets out. It seems to me almost contradictory in its own terms.

Mr. Mackasey: Because of the emergence of groups such as your own telling politicians such as myself, “Hey, there is a group out there that is concerned with what happens to this constitution and we had better start bringing out a populist constitution, if you like, that reflects the views, not of the power brokers, and I include myself in that, but of the people”.

When the Japanese-Canadians were here, they filled this Committee with shame about what occurred in this Canada, not in another country. Therefore, all of us I think around this table said, “We had better take provisions in that constitution that makes that impossible”. We talked about the War Measures Act; we talked about the Ukrainian Committee, I do not think there has been ten per cent of the witnesses, David, who said for a moment that we do not want to enshrine in the constitution a Charter of Human Rights. We have all argued about what it should be and I am simply saying that probably what will emerge, Mayor Dewar, is a bare skeleton, the bare minimum, and we will be building on that amended resolution for a long period of time.

For instance, in 10 years from now, the Premiers would sit down probably with the federal government and say, “Hey, it is safe to do this now in the field of human rights; people are ahead of us; people are ahead of the legislation. There is not going to be a revolution if we enshrine, for instance, freedom of choice in the field of education or if we extend right across Canada, the rights of French-speaking Canadians”.

So I just see this as the beginning of a process, an overdue process.

Mr. MacDonald: Surely you, least of all, should have had to be told that content and process are not unrelated. You have been involved in enough negotiations of one kind or another to realize that they are both inextricably linked and what you are suggesting is that somehow or other we can ignore the process and deal with the content and then come back and deal with the…

Mr. Mackasey: No, you are presuming …

The Joint Chairman (Mr. Joyal): I am sorry, but you should address the Chair really because it is the way that we have followed the rules since we are in existence, for the last two months, and now it is a two-sided debate. I have other speakers on my list and it is getting late. Other witnesses are scheduled for 7:30 p.m. and we owe it to ourselves to recess if we want to be prepared for the coming witnesses. I think that at this point there have been many views expressed. I see that Mr. Rose would have other questions, and I say it in a very simple way, and I know that some other members and I myself would have some questions to address to our guest witnesses, but I think that we have, to a point, to abide by those rulings.

I would like to ask the Honourable James McGrath for a final question.

Mr. McGrath: Mr. Chairman, I am going to resist the temptation because I was going to ask Mr. Mackasey how he could see the Canadian people being involved in the process

[page 75]

after the resolution has been reported to the House and we are in the process of patriation with the government’s amending formula. He talks about that 24-month period. I just fail to see how there can be involvement by the people of Canada in the process during that 24-month period, but I will resist the temptation to ask that.

Mr. Mackasey: Mr. Chairman, I will resist in the same vein Mr. McGrath’s efforts to resist that. I will resist answering and suggest to him however, that if I were going to answer I would suggest that the Connection drill into the heads of the provincial premiers during that 24 months that this is what they want, that is why they were elected and that is why they will be sitting at the table.

The Joint Chairman (Mr. Joyal): Thank you very much for the virtues that you have both expressed around the table.

Mrs. Dewar, I think you have concluding words, remarks.

Mayor Dewar: Mr. Chairman, again I would like to thank the Committee for hearing us, and yourself for keeping us in line. I know it is no easy job. I would like you to ask a question of Mr. Mackasey. Has he any feelings of maybe humiliation, perhaps that is the wrong word, in asking another country to amend our constitution or would he have feelings of pride in being able to say that we are creating our own constitution and the debate that could take place, that is beginning to take place, about asking the amendment to take place other than in Canada, that can bring back a lot of feelings of colonialism and so forth that we have outgrown long ago, and have appreciated our heritage. I would like to ask Mr. Mackasey that through you, Mr. Chairman, because that is my concern about patriation at this point.

Mr. Mackasey: Mr. Chairman, this will be the last time that we ask Great Britain to do anything concerning the Canadian constitution. It is only a question of whether we are doing that now or later. This will be the last time that we are asking the British Parliament to amend our particular legislation, which is the BNA Act.

If they carry out our request, in the future, spelled out in the resolution, for evermore we will be amending Canadians’ constitution in Canada.

I am a bit of a monarchist, and I just don’t know how you people stand on that point.

Mayor Dewar: I am, too.

Mr. Mackasey: Well, then, let us not sever all the links.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.

On behalf of the honourable Senator Hays, who had to leave at 6 o’clock for an appointment that he had already accepted, and on behalf of all of the honourable members of this Committee, I would like to thank very much the representatives of the Canadian Connection and in particular, my good friend the honourable David MacDonald. It is always a pleasure to host him in a parliamentary committee or anywhere on

[page 76]

the Hill, because he has left many friends and still has friends on all sides of the House.

Of course, Mrs. Dewar too, is our Mayor. Even though we do not happen to be permanent residents of this city, we have an opportunity to enjoy all the services that are provided by the City of Ottawa and we are most grateful to have the opportunity to thank you in that respect. And of course, to thank you too for the effort that you spent and the way that you understand your responsibility in going west to explain to other Canadians how we feel in the east and to appreciate the differences that we all bear because we all come from different groups, different regions, different races, different attitudes, different values, but on the whole we try to build up a country and that is essentially the aim that your group, the Canadian Connection, is aiming at and I think that you have to be commended very highly for that.

Thank you very much indeed.

Mayor Dewar: Thank you. 

The Joint Chairman (Mr. Joyal): The meeting is adjourned then to 7:30 tonight when we will have the opportunity to hear the representatives of the Union of Nova Scotia Indians and the Union of New Brunswick Indians.

[translation]

The meeting is adjourned.

[text]

EVENING SITTING

• 1940

The Joint Chairman (Senator Hays): Honourable members, ladies and gentlemen, it is now past the hour of 7:30 p.m., and I see a quorum. Perhaps we should start our proceedings.

This evening we are honoured to have the Union of Nova Scotia Indians represented by Chief Stanley Johnson, President; Mr. Stuart Killen, the Research Director; and Mr. Sageth Henderson, the Executive Advisor.

Representing the Union of New Brunswick Indians, we have Mr. Graydon Nicholas, the Chairman of the Board; Chief Winston Paul; Chief Albert Levi; and Mr. Darrell Paul.

I understand an opening statement will be made for the New Brunswick Indians by Mr. Nicholas and from the Union of Nova Scotia Indians, Chief Stanley Johnson. You are familiar with the procedure, and you may proceed.

Mr. Graydon Nicholas (Chairman of the Board, Union of New Brunswick Indians): Thank you very much, Mr. Joint Chairman. Before we begin with our official presentation, perhaps it would be in order if we could ask Chief Albert Levi to say a little prayer on our behalf, if that is acceptable to you.

The Joint Chairman (Senator Hays): Yes.

Chief Albert Levi (Union of New Brunswick Indians): (Spoke in Micmac.)

Mr. Nicholas: Thank you, Mr. Joint Chairman. Honourable members of this Committee, I would like to begin this evening by first outlining the Union of New Brunswick

[page 77]

Indians. The Union of New Brunswick Indians has existed as a nonprofit organization since 1969. We were formed collectively for political, cultural, economic and social survival.

There are more than 15 Indian reserves in present day in New Brunswick, and 15 of them have a Chief and band council. The Chief of each of these 15 reserves, and also the reserve located in Lennox Island, Prince Edward Island, comprise the Board of Directors of our organization.

As such we represent both the Micmac and the Maliseet tribes of New Brunswick and Prince Edward Island. One of our foremost concerns has been to safeguard, the protection and the continuation of our rights under the present constitution and its affiliated documents.

For us, the affects of trusteeship, treaties, proclamations and other historical developments make up our unique status and rights as Indians in New Brunswick.

In the area of aboriginal rights, many people have asked for a precise, concise and memorized definition of what elements form the concept of aboriginal rights.

It cannot be examined in that scientific and clinical fashion. After all, our ancestors were living in this country long before any Europeans set foot on this continent.

Our traditional cultural and social way of life cannot lend themselves to presicion and that type of cohesion.

Our economic, political, legal, educational and religious systems have yet to be fully researched and examined by us before we can advance our aboriginal rights accordingly.

Aboriginal rights should be accepted by you as the official representatives of the House of Commons and the Senate. You have been duly elected and given responsibilities by constituents, colleagues, peers and party leaders to listen to us. This should not be a one-shot opportunity for us to put forward our views on our rights and how the constitutional document affects our rights.

If you are able to adopt that principle, that aboriginal rights preceded all else, that would be enough to begin a renewed dialogue. Aboriginal rights do include our hunting, fishing, trapping and gathering as it relates to plant and animal life.

Aboriginal rights include our right to exist as Indians, to govern ourselves and to determine our livelihood, political, cultural, economic, social and legal units.

We have these rights and much more, because we have never been conquered, never released or extinguished our aboriginal rights in New Brunswick.

In fact, our very essence of belief is that we cannot sign our rights away.

How can we, as descendants, sign away aboriginal rights that have existed since time immemorial for our past, present and future generations of Indians? We would not—and there is evidence to support the fact that up to now our past and

[page 78]

present Indian leaders would not—sign our Indianness away and would not break away from our traditional aboriginal rights.

Aboriginal rights are much more than a slogan, more than a people, because they include our spiritual, cultural, physical and emotional needs.

We hope that you, as honourable representatives of Canada, will act with due faith and freedom of thought to accept the principle that aboriginal rights do exist today in New Brunswick.

In the area of our treaty rights, our treaties in New Brunswick and the maritimes in general are attached to this submission.

We have researched many hours, many days, and many times to locate these documents and we hold them dear.

Within a short period of 11 years our rights and treaties program has discovered and found documents which we have used in courts to establish our existing treaty rights.

There is much more work to be done. We will continue to achieve a greater volume of information in order to know of our past. Our treaties are examples that Europeans had an upper hand in the execution and negotiation of these documents; but our leaders always maintained their traditional livelihood of hunting, fishing and trapping. Our existence depended upon capturing game and wildlife, and provided us with food, clothing, viable commerce and cultural practices.

These treaties are dated as follows: 1713; 1725; 1752; 1778 and 1779.

There are also numerous occasions when some of these treaties were renewed, ratified and sanctioned. We, as the descendants of the representatives who signed, continue to claim and maintain our treaties. Ours was signed before the Province of New Brunswick was established in 1784. Some were over 100 years old at the time of Confederation.

We have not released our treaty rights; yet we continue to face prosecution in courts at the authority of the Attorney General who shows no respect for our solemn treaties.

We have lived up to our end of the bargain, and yet we face harassment and persecution.

Our people cannot afford to pay their fines. Why has Parliament sat silently and allowed our treaty rights to be abrogated by federal legislation, such as the Fisheries Act, the Migratory Birds Convention Act, the National Parks Act and the regulations enacted at the whim of conservation officers who advised the appropriate Minister?

We have been denied the equitable and just exercise of our treaty rights without compensation, without consultation and without our consent.

[page 79]

There were two parties represented in those treaties. How come we are now denied our right to participate and protect our treaties?

There is a solution to this dilemma. They are presented in the part touching on entrenchment. We will also never sign away our treaty rights. It is beyond our authority. Besides, treaties are not like contracts and agreements. They are solemn commitments and obligations on both sides, a sacred convenant.

In the area of our proclamations, in colonial times in our area, many governors who were representing Nova Scotia were empowered to set up relationships with the Indian tribes. This was crucial.

In fact the treaties mentioned above were signed and entered in to when there was a pending or the conclusion of a military conflict between the French and the English.

Two particular proclamations affect our treaties in New Brunswick—the Proclamation of 1761 and the Royal Proclamation of 1763. Both recognize the unique and special relationship with the Indian nations at that time.

Touching on the aspect of entrenchment, although the word “entrenchment” sounds inflexible, concrete and undesirable to some, it is also a process by which certain rights and principles are guaranteed to be beyond the reach of law making institutions.

Our treaty and aboriginal rights have to be protected, have to be safeguarded, preserved. Our unique relationship with the Crown has to be manifested by entrenchment into this country’s most sacred, solemn and honourable constitution.

Various courts in this country have reluctantly ruled that federal legislation has abrogated and extinguished our treaty and aboriginal rights. Members of Parliament and the Senate cannot hide behind the judicial veil.

You, as members of the highest court in the land, the House of Commons and the Senate, have the authority to ratify, confirm and sanction our above-mentioned treaties. You have the vested authority in this special joint Committee to recommend a century of unjust prosecution and inequitable treatment whenever our Indian people exercise their treaty and aboriginal rights as presented above.

Surely, nothing is more unjust and shameful, when we have not been compensated for the loss or suspension of exercising our inherent rights.

Entrenchment of treaty and aboriginal rights is of paramount concern for us as Indians. Our people will not stop exercising what they believe is right, and what they have recognized and seen promised in the treaties.

We do not abuse game and wildlife. We have the greatest respect for them, and always will, because we have survived.

In conclusion, Mr. Joint Chairman, we hope and trust that you, privileged and honourable members of both Houses, will listen and read our views.

[page 80]

We can help in our desire to continue to participate as Indian people. We are Indians. We are not natives. We are members of Indian tribes, Indian nations that existed at the time of European contact. We have never surrendered our aboriginal and treaty rights and cannot, and will not, because it simply is not our way of life.

We have many problems today in our reserves. Our family life is being eroded, but we are determined to lead and help our people in the best and just way we know how.

We must be accorded that freedom to decide what is best for us and not be asked to follow a pack, to become assimilated and be pawned off to the provinces.

We are a federal responsibility. A special trust relationship does exist and it will not be discarded.

We are a proud people, proud of our past and we have renewed our cultural, spiritual and linguistic customs.

We do not want to lose what we have or denied the exercise of our customs as in the past. We have faith in your Committee because we have chosen to appear before you.

Accepting us for what we are is not difficult. We are who we are. We cannot change our fundamental relationships. We will continue to place trust and confidence so that we work together and allow each other to benefit from these relations.

That concludes our presentation.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Nicholas.

Chief Stanley Johnson, would you like to present your oral presentation on behalf of the Union of Nova Scotia Indians?

Chief Stanley Johnson (President, Union of Nova Scotia Indians): Thank you, Mr. Joint Chairman.

My name is Chief Stanley Johnson. I wish to introduce my delegation. Behind me to my right is our legal advisor, Dr. Sageth Henderson; to my left is our legal researcher, Mr. Stuart Killen.

I would like to thank the Committee for allowing us the time to make our presentation and to take the time to read our short brief and background information.

Me Taleyn.

Little is known about the relationship between the legal mind and politics in Canada. Creating a prospective legal document to control political behaviour in the future throws a strong light on the connection between the legal mind and government.

[page 81]

This proposed relationship confronts all peoples of Canada; but as a representative of the Micmac people in Nova Scotia and administratively united with Mi’kmaq Nationimouw, the Union of Nova Scotia Indians is dramatically concerned about the purpose of such a document as the Canada Act.

After more than three centuries of witnessing the interaction between the legal mind and democratic politics in continental Canada, this we know about the relationship: by some irresistible movement which imitates the attraction death exercises over life, the political mind again and again uses the legal instruments of its own freedom to bind itself and others in chains.

Yet—in a manner which reminds mortals that death lasts forever and remains the same, while life, although fleeting, can always become something higher than it was before—the political mind can break its conceptual chains, creating freedoms and liberty greater than was known to law, and the splendour of this triumph surpasses the wretchedness of its earlier subjugation to more primordial inclinations.

The history of Canadian politics goes from mastery of a dream to enslavement of ideas of power and glory. It was the common dream of a better society which was imprisoned by the transformation of scientific racism into the rule of law and responsible government in nineteenth century Canada.

The World Wars of the first half of the 20th Century sublimated the dream to the reality of fighting for political freedoms and liberties.

After the wars the United Nations attempted to cure the evils which created the wars—colonialism and racism—through the Covenants on Human Rights. The Canada Act seeks a similar end, but fails in its efforts.

The proposed Canada Act is an attempt by the current government to readjust the legitimacy of Canadian sovereignty. It states that Canada is no longer a British outpost, but a valid government committed to human rights. Yet, it continues the racist concepts of its birth: that Canada is a European nation.

It refuses to admit to the world that a major part of its legitimacy is founded on the consent of nations and tribes of Indians embodied in treaties with the Imperial Crown.

North America is not England. The ancient territory and theory of governments in England were not applicable to North America since the nations and tribes of Indians had their own view of government and held the territory.

Despite the rhetoric of discovery and settlement, the legal fact remains that the rights of Great Britain in North America are derived from the consent of the tribal sovereigns in their treaties.

Under the terms of the treaties and in instruments of the Royal Prerogative, land acquired by the Crown in North

[page 82]

America was purchased from the tribal sovereigns; parts of the tribal sovereign were delegated to the Crown to perform; by the treaties according to the will of the tribal nations. The delegated powers became the source of Great Britain’s jurisdiction in North America.

Nowhere in the Canada Act is it acknowledged that tribal treaties with the Crown legitimize the European presence in North America. Throughout Canadian history, its constitutional documents are derivative from the treaty prerogative of the Crown. The tribal treaties, not provincial treaties or federal treaties establish the legitimacy of first the provinces and then the BNA Act of 1867. If it were not for these treaties, Imperial Parliament would have lacked the constitutional power to create responsible government in North America.

Nova Scotia, the first colonial government in Canada is illustrative of this process. The treaties with the Micmac Nation preceded the establishment of a colonial government. Consistent with the imperial scheme embodied in the reports of Atkins and Kennedy in the 1750’s, the Crown acknowledged that only by a permanent union with the Indian nations and tribes in North America could the British hope to maintain the continent from other European nations. Consequently, the treaty of 1752 with the Grand Chief of the Micmac Nation established a political compact with the Imperial Crown.

Six years later, the Legislative Assembly of Nova Scotia was called in 1758. In the maritimes, this pattern was consistently followed. All district Chiefs of the Micmac Nation acceding to the treaty of 1752, followed by the establishment of popular assemblies.

By ignoring the foundation of the treaties, the original source of British constitutional authority, the Canada Act assumes that Canada is part of European history not American history. It assumes, without legitimacy, that by virtue of its colonial charter of responsible self-government from Great Britain, the BNA Act, that it can ignore the original political compact between the tribal nations and the Crown which created British North America.

Furthermore, the Canada Act, in frank violation of the laws of nations, attempts to abolish the significance of the Imperial compact with the nations and tribes of Indians in North America. It attempts to forget that the Micmac nation was a government in its own rights, recognized as such by its imperial treaties, while Canadian government is based on a colonial charter from the Imperial Parliament.

The federal Parliament was originally empowered to perform the treaty obligations of the Empire, Section 132 of the British North America Act, and the federal government was assigned the exclusive authority to administer the inherited responsibilities for “Indians and lands reserved for Indians, Section 91, in the Provinces of Nova Scotia, New Brunswick and Canada. This is called treaty federalism.

[page 83]

• 2000

The Imperial Parliament did not grant absolute legislative power over tribal governments in the BNA Act. This was contrary to imperial policy expressed in the Select Committee on Aborigines in 1837 against granting legislative authority over native states protected by the Crown. Neither the BNA Act or the Statute of Westminster in 1931 were novations of our treaties. Political compacts are unassignable unless both parties consent. Since we did not participate or consent to either instrument, our treaty federalism was entrenched in the constitution of Canada just as the Royal Proclamation in 1763 was entrenched. Our treaty with the Crown remains unaffected and carried over indelibly into the constitution of Canada.

Absolute legislative power over Indians is a Canadian usurpation of power based on racism.

The Micmac people have suffered the total subjugation of their integrity and will to the Department of Indian Affairs; however, our autochthonous polity was not destroyed in these transitions of the political process from observance of treaty obligation and protection of our tribal society to coerced assimilation for the common good.

With the focus on racial consciousness and individualism, that is, Indianism, the Canadian mind simply ignored our treaties and our protected tribal polity. Once recognized it takes positive legislation or formal annexation to destroy vested treaty rights. Hence silence and neglect cannot destroy our traditional government.

The individual assimilation model, which still provides the “deep structure” to federal policy, goals and current law, is marred by an imitation of European greatness. It is a social Darwinism political universe, so to speak, prehuman rights. It was introduced by men at a loss to solve the particular problems of encroachment by immigrants and refugees on land reserved for tribal society and tribal wealth in a democratic society under imperial obligations. At the time it appeared to be only a transitory problem under the imperative of the vanishing races; now this problem is connected with the birth of human rights and the new power of Third World countries. The present bafflement of federal policy toward “In-de-gns” is whether to modify the assimilation model, drop it, or make it operational.

Policy makers and scholars from all parts of the world and from all races have already grappled with this problem. Their solution: the Human Rights Covenants—a new system beyond scientific racism which attempts to eliminate those standards. The Canadian government has already acceded to these multilateral treaties; their covenants exist in the constitution of Canada as federal obligations. In their totality, the acceded covenants encourage a world of initiatives which previously were considered impossible.

[page 84]

The federal government in the proposed Canada Act has not sought to effect the total principles of the Human Rights Covenants. They have selectively chosen only those principles conducive to its psychological and political ideas based on scientific racism.

Recently in U.N. debates, Canada has attempted to argue against recognizing native rights based on its own self-interest. Now in the Canada Act the federal government seeks to abrogate its obligations to the Human Rights Covenants, imperial treaties, and common law obligations toward tribal society. Of particular importance is the right of self-determination for all peoples regardless of race, religion, or creed, which has remained unacknowledged by the federal government. This illustrates to Micmac society that racism and self-serving goals remain the guards that watch over the relationship between individual and the state and the problem of the distribution of wealth in continental Canada. These attitudes also immunize the Indian Act from the Canadian Bill of Rights and the Canadian Human Rights Act.

The federal government seeks to rewrite its history. It seeks to cover up its sins. The White Paper policy of 1969 sought to comply with the International Covenant on the Elimination of Racial Discrimination by terminating the constitutional category of “Indians and Land Reserved for Indians”.

Forgetting that these categories were derivative of political rights under the imperial treaties with nations and tribes of Indians, the government only saw them as reflection of racial standards. The legal reality was hidden to the racist mind. The proposed Canada Act continues this error. It seek to change the constitutional language of the BNA Act—Indians—to the vague category of native peoples rather than tribal society.

The phrase “native people” grants the federal government total flexibility in determining who are native people and the criteria for federal services. In the past, the government has abused its right to determine who is an Indian, they should have no future power to determine its constitutional mandate consistent with its own purposes.

The Canada Act also fails to unite treaty federalism with provincial federalism. Preoccupied with limiting provincial power, the federal government has ignored all the fundamental law of the tribal compact with the Crown—the treaties and the prerogatives acts protecting the aboriginal rights—in both the text and schedules of the act. There is no excuse for this oversight. The federal government is the constitutional protector of tribal rights and interest under the BNA Act. It seeks to ignore its constitutional duty as well as its high statements of its duty to the tribal people, just as it has in the administration of our treaties. The federal government is advocating only its policy, not its constitutional responsibilities and obligations. It hopes that censorship of our rights under treaty federalism will terminate those rights.

[page 85]

Section 24 of the act attempts to give the appearance of preserving our existing rights, undeclared. Why should this be such a benefit to us? We have had our rights for over two centuries, yet the federal government has refused to implement them. We are not a corporation existing solely in law, we are human beings attempting to forge a better society.

The preservation of the existing rights, undeclared or declared, merely grants us the right to live in poverty at the discretion of federal policy. If our existing rights are so extensive, why are not they included in a schedule or distinguished between treaty rights and other rights?

If our existing rights are so extensive, why is 90 per cent of the work force unemployed? Why only 9 per cent of our housing up to provincial standards? Why does substandard water and sewage system destroy our health daily? Why does our community only have a seventh grade education level after more than a century of federal supervision? The answer is that through the Department of Indian Affairs most of the monies are spent on political pay-offs or to non-tribal merchants in the surrounding towns, not in fulfilling its responsibility to our society.

The only legitimate authority of the federal government under the BNA Act is to protect our land, resources and tribal people from the immigrants. Having failed in this administrative obligation to the Imperial Crown and Parliament, the federal government seeks to destroy our protected status. They also hope to implement the Canada Act before the Auditor General has a chance to report on tribal trust funds.

In this regard, the Santeoi Mawa’iomi, with our concurrance, have filed a communication with the Human Rights Committee of the United Nations to protect our legal rights and obligations under the optional convention to the Human Rights Act. Our people have no faith or patience with existing legal or political institutions in Canada.

Our imperial treaties guarantee Micmac families the rights of economic opportunity, political liberty, and cultural integrity. The Canadian government has refused to honour its commitments to us and the Crown for a variety of excuses based on tribal lifestyles, not federal policies, assumptions and attitudes. They seek to destroy the last vestiges of our tribal society under the notion of individual rights rather than fidelity to their obligations.

Micmac society seek tribal assimilation into Canadian politics, not individual assimilation into a province. We desire to maintain our freedoms, not end a tribal legacy we inherited with our heartbeat from our parents.

[page 86]

Faced with a similar problem between the races and culture of French and English in Canada, the province of Quebec was created out of the province of Canada to resolve the crisis in the BNA Act; the Canada Act seeks to extend that protective policy for a cultural minority from the dominant society.

The union has sought to build on this principle of political liberty to our situation in our drafts proposed on Bill C-60 and on the revisions to the Indian Act. Both were ignored by the federal government. While we are in agreement with ending racial discrimination, we do not accept the federal government’s solution to Indian problems. After all, when a baby’s bath water gets dirty, you do not throw out the baby with its bath water.

Our current poverty has been officially blamed on the Department of Indian Affairs since 1969. That is a correct analysis of the problem. The Department controls our wealth for national concerns, allocating moneys mostly to provinces to provide services, and sending about 83 per cent on direct and indirect administration with less than 5 per cent of its budget ever reaching a poor tribal Indian. It also fails to protect us in federal Cabinet in fishing and hunting legislation. To correct these fiscal abuses, federal monies have to be sent directly to the bands to create economic self-sufficienty in the same manner as to other poor provinces and the Department of Indian Affairs must be disestablished.

In the past our goal was to have all the Micmac bands in Canada consolidated into a province of Canada regardless of existing provincial boundaries. Each band would have been a municipality of the Micmac province.

After witnessing the current governments’ attempt to confiscate the wealth and power of the existing provinces in the same manner as land and natural resources were confiscated from Indian tribes after Confederation and its current refusal to have an Inuit province in the North, we are not sure that Canada is an acceptable political environment. Their exists a strong parallel here. The federal government, in its first century, deliberately sought to end tribal governments in Canada despite our treaties. In its second century, it seeks to limit provincial government for its own benefit despite the BNA Act. Having already seen the effect of this march toward absolute power, this political cancer is undemocratic. It disregards the elements of political consent both in the treaties and the BNA Act. It would be better for our children if we become a trust territory of either the United Kingdom or the United Nations striving toward independence than to have our tribal heritage terminated for the utilitarian calcusus of the federal government.

[page 87]

We refused to be treated like colonies of Canada or to be forcefully assimilated in a tyrannical Canada. Our political and legal relationship is with the Imperial Crown, not Canada; hence it is our decision as to our future, to be made in the following months, on what is in our best interest for tribal society.

We have two questions which we would like the Committee to ponder and answer for us. First, will the Canada Act freeze the notions of a superior European race and culture into constitutional law or is it an attempt to break the history of colonialism and racism in Canada? Second, does Canada still believe that tribal society is an evolutionary cul-de-sac in political development which is preordained to vanish by the will of racial genes and scientific racism or that it is entitled to the same protections as the French people in Canada? These are dangling questions in the debate over the Canada Act. The answer to these questions would help our society address the Canada Act in a more rational manner.

We shall not fold our arms in this battle for human rights. We have the support of the world behind our quest for self-determination and dignity. We are not alone, anymore.

Thank you.

The Joint Chairman (Senator Hays): Thank you very much, Chief Stanley Johnson. Does that complete your presentation.

Chief Johnson: Yes.

The Joint Chairman (Senator Hays): And also New Brunswick.

Mr. Nicholas: Yes.

The Joint Chairman (Senator Hays): Then we go to our questioners and the first on our list is Mr. Hawkes followed by Mr. Manly.

Mr. Hawkes: Welcome to the constitutional Committee. I think we are drawing to a close the opportunity that we had to talk with a number of Canadians about what they would like to see in the constitution. We are facing a closure as of this Friday with the about 1,000 groups and individuals who want to appear that have not had a chance to appear.

On the closing part of the Nova Scotian presentation you asked two questions of us and I cannot respond to those questions on behalf of the whole Committee but I can respond to those questions on my own behalf and I think I would like to start there by giving you my answer to those two questions and if you would like further clarification I would invite you to seek that. If there is a coherent philosophy in the Canada Act 1980, and I say if because I think the weight of testimony would indicate that at best it is illusive and may not in fact be there, but if there is such a philosophy then I think your question here, and let me read it, first:

Will the Canada Act freeze the notions of a superior European race and cultural into constitutional law or is it

[page 88]

an attempt to break the history of colonialism and racism in Canada?

And my answer to that question is that I think it is an attempt to entrench the notions of a superior European race in the constitution of Canada and it is a particular sub-element of that that I think is of particular danger to not only your culture but other cultural entities which exist in Canada, that it would, if it went forward the way it is written entrench in the constitution of Canada the right of elected people and in particular at the federal level to intrude more into our lives rather than less, to take more things away, to change more things without consultation than it now can do, that is as it is written.

We have been told on more than one occasion that through the Charter of Rights there is an attempt to protect our rights and freedoms. As I read the Charter in its totality I think I do see an attempt to protect the rights of individuals but I think you understand perhaps better than most Canadians that the rights of individuals can intrude on the rights of the collective, that freedoms for individuals that have no strings attached to them are elements, there exists in there an element of destruction for collective rights. I think one of the characteristics that we should pay a lot of attention to is the fact that the Charter of Rights has been seen as flawed I think by every group from school boards to a variety of cultural groups, every group that wishes to protect a cultural identity has been unstinting in indicating to us that they see nothing in that Charter that would help them maintain their collectivity and their culture and in fact they see a great deal in that Charter that could be and would be interpreted as destructive to that collective sense of identity.

• 2020

Your second question: does Canada still believe that tribal society is an evolutionary cul-de-sac in political development which is preordained to vanish by the will of racial genes and scientific racism, or that it is entitled to the same protections as the French people in Canada?

I really think there are sort of two questions or as least one question, one statement in that long sentence. The Government of Canada, the particular government that we face today may in fact believe that tribal society is an evolutionary cul-de-sac, but I do not sense that in the people of Canada. I sense in the people of Canada some pretty solid belief in whatever tribe, in the sense that they happen to belong to, whatever sub-element of this country that they want to belong to, and they are fighting the unilateral nature of this in their public opinion because they believe that the cultural part of this country that they belong to is in evolution, they want to be involved in that evolution and they see it changing with the passage of time and I think I see everyone of the aboriginal groups that have appeared before us saying that to us clearly, the evolutionary direction which has been part of your life for the last 100 year has not been positive but this is a nation, if we would smarten up it could become positive to everybody’s advantage but we need to evolve together and to work together and I think that

[page 89]

is where the people of Canada are, whether this government is there or not.

The second part of that statement relates to the protection of the French people in Canada and 1 suggest to you that they will have no more protection, they will have less protection if this Canada Act passes than they have now, and they are in the same boat as one of the cultural entities within the country.

Do you want to quiz me on my answer to your question, anybody in your group?

Mr. Stuart Killen (Research Director, Union of Nova Scotia Indians): No, it is clear.

Mr. Hawkes: Could I then ask as my first question whether or not the prayer in Micmac is at least roughly translatable so that we as Committee Members might understand the thrust of that prayer?

Chief Levi: Alright, Mr. Chairman, the prayer in the Micmac language that I have asked the God to give the power to the Indian leaders in Canada to work together, to work together because of this crucial stage where the Canadian government sees fit that it is going to bring home a constitution. I have asked God not to allow the Canadian government to put the Indian peoples in Canada in the back road, but to put them in the priority.

I have asked God that as far as we can see this is the most important time for Indians in Canada, and for the sake of Indians I am sure that the Canadian government will give the right judgment, and I thank him for that.

Mr. Hawkes: Thank you very much.

The Joint Chairman (Senator Hays): You have one more question, Mr. Hawkes.

Mr. Hawkes: As so often happens, we run out of time in this Committee before we can really explore ideas.

If I can direct your attention to page eight of Nova Scotia’s brief, gentlemen, and in the large paragraph in the centre of the page the second last sentence reads:

The federal government is advocating only its policy, not its constitutional responsibilities and obligations.

And I am wondering if you could just give us a little better sense of clarity in what you see as the policy aspects of this constitution act 1980 and contrast that, just one or two examples, maybe, contrast with what you believe to be a constitutional obligation?

Chief Johnson: On that, I guess our legal advisor will give you the answer to that question.

Mr. Henderson: The thrust of those comments go directly to the lack of embodying in the new Canadian Act a merger of the treaty relationship with the Crown, with the statutory relationship to the Crown in a positive way.

What we are getting now is the end result of the policy which would be modified human rights but not a clearly defined status of where we are going to exist afterwards.

[page 90]

We are saying we are being told that we will have to wait until later, after the constitution is brought back, to discuss our rights with the Crown, and in that sense it already prejudges the solution because after it is brought back we have no possible commitment from the government that they will respect any of our treaties or any of our rights.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Hawkes.

Mr. Manly.

Mr. Manly: Thank you very much, Mr. Chairman. I would like to thank the Union of New Brunswick Indians and the Union of Nova Scotia Indians for two very interesting briefs that I think help to advance our discussion, and I think I would like to being by asking Mr. Nicholas about the relationship and the present basis of the relationship between treaty Indians and the Province of New Brunswick or just any province, what do you see as the basis for that relationship now? What do you think should be the basis?

Mr. Nicholas: Well, that question as regards to the first part about our treaty, in our brief, if I may again reaffirm what we said, these all predate Confederation of 1867. These treaties were signed with Imperial representatives and as such sets up our special relationship that we have with the Crown, and if the Crown in Canada is in fact the one who is inheriting the authority of the Crown in Great Britain, then also the Crown in this country has to live up to its obligations in those treaties. And those treaties at the time were signed with the Imperial Crown, not with a Crown Colonial in terms of Nova Scotia, because Nova Scotia before 1784 included present day New Brunswick as well, and parts of Quebec and Maine. Our treaties are unique in that way in our area and we want to continue that uniqueness of our treaties.

In fact, we urge this Committee as well as the Canadian public to become more acquainted with our documents so that they will see the injustice that we have suffered.

Mr. Manly: So that you would see a direct relationship with the Canadian government that would be parallel with the provincial relationship with the Canadian government but do you have any relationship that you would see with the provincial government apart from the fact that you live in the territory of New Brunswick?

Mr. Nicholas: Well, perhaps the reverse of that is they are saying that we are saying that the Province of New Brunswick is still located in the aboriginal lands of the Malakeet and Micmac peoples of New Brunswick because we have never surrendered nor relinquished our aboriginal rights, and the province does not respect our treaty rights in New Brunswick.

Mr. Manly: How would you see the future basis of relationship between yourselves and the Province of New Brunswick?

Mr. Nicholas: I think because of the treatment our people suffered previous to 1867, when there was a certain relationship that the Province of New Brunswick had with Indians, we would not want to go back to that system because our lands

[page 91]

were supposed to be protected and our rights were supposed to be protected and they never were. Our land was sold off for a penny an acre and we certainly would not want to go back to that form of protection.

We would in fact insist, as one former justice of the Supreme Court of Canada said, a political trust of the highest order must exist to maintain and preserve Indian rights.

Mr. Manly: So you are saying that the nation of Canada, the federal government, should maintain a direct relationship with Indian people in New Brunswick and with the territory controlled by Indian people in New Brunswick that would leave you independent of the provincial government of New Brunswick?

Mr. Nicholas: Definitely.

Mr. Manly: Would you see that you would want to enter into relationships with the government in terms of future arrangements for education or health?

Mr. Nicholas: No, I do not think so because we have to have a centralized form of protection and I think if you begin to allow provinces across this country to be responsible for delivery of services to Indian people, you are going to have inequality because you are going to have different standards across this country.

Furthermore, because of the history of this country, you are going to have different attitudes across this country and the past of provincial involvement is so sad that we would not even entertain the thought because education for us is a federal responsibility, it always has been, we do not want to learn just the provincial history and the provincial political system in New Brunswick. We have our own system that we want our children to learn, and also for the non-Indian community in New Brunswick to learn as well because we have a lot to offer.

Mr. Manly: What is the present status of the law regarding reserve lands in New Brunswick at the present time, would that correspond to what you see as being necessary?

Mr. Nicholas: Well, I am not really sure if that is necessary because I think there has to be established dialogue between the federal authorities and the Indian people in New Brunswick to determine the exercise and control of land and the resources that we have, because right now we are saying that out rights, our aboriginal rights in New Brunswick extend beyond our reserve limits today that we have.

Our hunting rights and our fishing rights are not exclusive just to reserve lands. We hunted and fished everywhere in New Brunswick and we want to continue and maintain that.

Mr. Manly: So you are saying you want to have rights now that are not yet recognized?

Mr. Nicholas: Exactly.

Mr. Manly: More specifically, you did not make specific amendments in your brief, does that mean that you endorse

[page 92]

the specific amendments that were tabled by the National Indian Brotherhood before this Committee?

Mr. Nicholas: Well, of course we are members of the National Indian Brotherhood and we support the proposals that they submitted. However, I think the drafters of such legislation would have to sit down together to work out in fact the correct wording. I think it is beyond our present abilities to draft a certain section and say this is what is desirable for the Province of New Brunswick, because I think the protection of Indian treaty and aboriginal rights across this country has to be uniform and it has to be determined concurrently with the Indian leadership of this country.

Mr. Manly: Do you see the amendments suggested by the National Indian Brotherhood as providing an acceptable framework for that to happen?

Mr. Nicholas: That is provided if the principle of entrenchment is in fact accepted in the constitution. If it is not, then I think as previously answered by Nova Scotia’s delegation, we do not want to talk about entrenchment after the fact.

Mr. Manly: I would like to carry on a similar line of questioning with the people from the Union of Nova Scotia Indians and I would like to ask Chief Johnson, on page eight you say that the Canada Act also fails to unite treaty federalism with provincial federalism and I would like you to say a few things about what you mean by the phrase “treaty federalism” and how you feel that this concept could be united with what you call provincial federalism?

Chief Johnson: Again, in the areas of treaty federalism and provincial federalism, we explained what both meant and I would like to refer this question to our legal advisor again, Mr. Henderson, to give you our legal opinion on this sentence.

Mr. Henderson: Well, basically treaty federalism preceded provincial federalism. Treaty federalism is where your original treaty between the Indian nations, the Micmac nation and the Crown, which allocated jurisdiction both to the Crown and reserve lands and jurisdiction in the tribal polity. That has remained untouched over all these years except for the lack of administration of the Crown’s responsibility, first by provincial agents of the Crown and now the federal agents.

Provincial federalism is basically the same idea in a more elaborate form. It is the essence of the notion that the Quebec referendum, when it went to Great Britain and was introduced into the Imperial Parliament, it was introduced, the British North America Act, as a treaty of union between the peoples of those provinces to create a bigger and better form of responsible government. They are virtually identical in theory and origin. The only difference is that the Indian tribes were acknowledged as members of the law of nations whereas the British Parliament would not go so far as to acknowledge the provinces having any standing in the international community until quite recently, 1931.

That is the major difference.

[page 93]

Mr. Manly: How do you see that these two concepts could or should be united in a future constitution for Canada?

Chief Johnson: Well, at the present time you have basically three governments in Canada. It was the Micmac’s understanding that they were only under federal supervision until a point in time could be reached when they would be moved into a province of Canada. Since the Micmac Nation complained about, first to the Crown in 1841, about all the bands being under different colonial administrations of New Brunswick, Quebec, Newfoundland, Prince Edward Island and Nova Scotia, and the response that came back from England to us on that was that we were being, at one time would be amalgamated as a province into Canada if we so desired.

Mr. Manly: As a separate province?

Chief Johnson: As a separate province to protect the cultural and tribal nature of our society versus the immigrants.

Mr. Manly: Could you indicate when that promise was made and where we would find it? I think it is very important.

Chief Johnson: Yes. It was in the response of Richard Woods, who was in the colonial office, to the petition from the Grand Chief to the Queen in 1840, when the Grand Chief found out that Nova Scotia had failed to respond to the select committee on the status of the aboriginals within the empire.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Manly.

Miss Campbell.

Miss Campbell: Thank you, Mr. Chairman.

I, too, would like to welcome the two groups from the east coast on behalf of my party and say that their briefs presented their problems very well, as well as some of the former papers that we had, the briefing notes, before.

I would also like to point out that most of the groups that have appeared before us have asked this Committee to go further than the proposal and are certainly supportive of recognition of the Indian people in Canada or the aboriginal people in Canada, in fact two of the three groups that we saw today specifically made note of Section 24 and I think we can go back over the past few weeks hearings and find that most of the groups that have come before us have supported aboriginal rights.

On that I would like to ask either group if this committee were to recognize and confirm aboriginal rights in the constitution, do you think that this requires a detailed definition of constitutional rights, or would you leave the details to later negotiations and decision by the courts?

Mr. Nicholas: From the point of view of New Brunswick, as we submitted in our brief, we cannot give you today a precise and concise and a nice definition of aboriginal rights, it is just impossible. I think there are already previous court decisions that have attempted to examine the concept of aboriginal rights, I am thinking now specifically of the Calder case which involved the Indians of British Columbia, where Mr. Justice

[page 94]

Hall, in his judgment, extensively discussed the notion of aboriginal rights. Then quite recently another decision involving the Northwest Territories, the Baker Lake Decision, where again a judge of the Federal Court of Canada dealt very extensively with the notion of aboriginal rights and something like 89 pages were written, and I do not think we could summarize that in two or three lines.

Miss Campbell: I would just bring to your attention that this would be entrenched, if it was entrenched in the constitution the courts would have to look to this new document and would that not make a difference if there was an entrenchment of aboriginal treaty rights in that document, would this not give a new direction to the courts? It is still up to the courts to interpret, but…

Mr. Nicholas: I would say before the courts were given that particular notion, arguments would have to be submitted as to what constitutes aboriginal rights, where they start or emanate from.

This is one of the dangers of entrenching aboriginal rights. If, in fact, it is entrenched and such a concept is interpreted by a future court not to our satisfaction or the satisfaction of the government, then disputes may arise.

That is why there must be clear discussions and dialogue on this notion of what the aboriginal concept is. But if the Committee were to accept that aboriginal rights exist, then I think you have gone a long way.

Miss Campbell: Yes, but the Committee is looking at a proposal. We have heard other groups talk about aboriginal rights. I take it you would not be prepared to go that far in putting it down, in entrenching it.

Mr. Nicholas: No. We want entrenchment of the principles of aboriginal and treaty rights, but you cannot give a five-line definition of it.

Miss Campbell: I do not propose to go into the definition of it. But would you like more than just that in this proposal?

Mr. Nicholas: If the constitution of this country is flexible enough that it would warrant future discussions between representatives, including representatives of the people, then more opportunity should be made available to fully discuss and develop this notion.

Miss Campbell: Would the Union of Nova Scotia Indians like to comment on that?

Chief Johnson: When Mr. Warren Allmand was the Minister of Indian Affairs in 1977, we presented our position paper on aboriginal rights to him, and the only reply we got from the federal government to date was that aboriginal rights in Atlantic Canada do not exist and that they were superseded by law.

We can not tolerate this type of reply. We have consistently questioned the federal government and we have asked them to provide us with any detailed knowledge they have on what laws superseded aboriginal rights and to date they have not been able to respond.

[page 95]

We do not want Canada Act to be put in place until our arguments are fully heard and even presented to the court.

Miss Campbell: As you know our time is limited, and I do not propose to dwell at length on that. But if this Committee and the government were to amend the proposals to include the substance of your proposals, would you insist that they have the agreement of all the provinces before being legislated by the United Kingdom parliament? I took it from your brief that you feel, in a way, that the province has no jurisdiction over you, so you do not feel you have to go back to the province.

Mr. Killen: It is felt in Nova Scotia that the province of Nova Scotia has absolved itself intentionally from all matters pertaining to Indian people.

There is very little that we feel we should be doing with that particular type of government.

But getting back to the aboriginal rights as we outlined them in 1976, we were explicit as far as Nova Scotia was concerned because they dealt with the compensation for the loss of a way of life which has resulted in Micmacs of Nova Scotia being 90 per cent unemployed; Micmacs dying earlier than non-Indians; the infant mortality is still higher than for non-Indians; there is 30 per cent higher incidence of disease among Micmacs as compared with non-Indians.

The gut level amongst the Micmacs at the reserve level is that the present government of Canada is in a conflict of interest situation. They feel this because 130 years ago a member of the legislature stood up in Nova Scotia and announced that he could not do justice to the Indians and maintain the goodwill of his constituents. We see a lot of parallels with that type of dilemma amongst the federal political people, on the federal political scene. We have experienced it first hand, with the violence that the Micmacs are suffering today; the violence I have mentioned of unemployment, of poverty, the lack of selfworth; we have experienced it in land claims. If the claim affects non-Indians, non-Indians have been protected without any direct reference back to the band making the claim.

We have established over the years and submitted to the Joint Committee a number of papers which I think show that the Micmacs know where they are going and they know how to get there, and the problem we seem to be having is moving in the political arena to make the case understood.

Miss Campbell: One more question, before they cut me off. It relates to Section 52 of the proposals. That states that all the documents in Schedule 1 would be considered part of the constitution. Would either of you recommend that any constitutional documents to Schedule 1 in the constitution—are you prepared at this time to talk about that?

Chief Johnson: Yes. One document we would certainly ask to have included is our aboriginal rights paper. It is a very complete and detailed position paper which should be included in Section 1.

[page 96]

Miss Campbell: The documents I am referring to are acts. We are talking about the British North America Act, 1867. I am wondering whether there are treaties or proclamations which you feel should be included. I do not think a position paper is exactly what 1 am looking for.

Chief Johnson: Our position is that the treaties the Micmac nation signed with the British Crown and also the Royal Proclamation and the treaties of 1752 and 1761 should be included as part of the Schedule.

Mr. Nicholas: Definitely in our brief we attached the treaties that were signed. These treaties are extremely significant to our people, and if you make direct reference in the Canada Act to treaty and aboriginal acts and what we submitted is not included, then that is not fair.

So definitely all the documents attached to our briefs including the two proclamations as well as part of the instructions given to the provinces; for instance, when the province of New Brunswick was created certain instructions were given to the Governor of the time, and in our attached brief there is a direct reference to instructions to the Governor of the time in fact to have direct relationships with the Indian tribes and nations of New Brunswick, including the Micmac among others; and these documents are extremely essential, because without them the constitution of this country would be incomplete.

The Joint Chairman (Senator Hays): Thank you very much, Ms. Campbell.

Mr. Allmand: Mr. Joint Chairman, I have a short question of privilege, and I would like to make the record clear. I do not think that Mr. Johnson really intended to say what he did say. While I was the Minister who received the Nova Scotia claim in 1977, I was not the Minister who answered the claim and rendered judgment on it, as to whether it was legitimate. I thought the way he stated it was a bit ambiguous, but I do not think he meant it.

Chief Johnson: It was not you who answered. It was the Department of Justice’s opinion that the new Minister attempted to respond to.

The Joint Chairman (Senator Hays): Senator Williams, do you have a question you would like to ask?

Senator Williams: Thank you, Mr. Chairman.

First of all, I want to commend the two groups from New Brunswick and Nova Scotia. Years ago I used to know a few of their leaders and I suppose some of them have gone to their happy hunting grounds.

I have about three questions. They are very simple and are very easy to answer.

No doubt some of your forebears possibly have witnessed—I think it was around 1535 or so, when Cartier sailed up the St. Lawrence, the first record of contact from Europe after Columbus. They must have realized that there would be more of them coming to this great country. Now, I am only guessing that they did. They did not see the ship at that time. They must have heard about it.

[page 97]

I want to congratulate you not only on your presentation this evening, but also on your long survival from that time on which possibly reaches something like four centuries or so and that your contact with the newcomers has existed that long.

Where I come from it is possibly a little over 200 years— contact with the newcomers.

You have survived well under very difficult circumstances. Much of your way of existence—and I hate to use the word “existence” but 1 would say your way of life at that time was beautiful, in that the needs of your people were met in the forest, the rivers, the lakes and on and in the sea.

This way of life was taken away from you by control, just as some of the way of life of my own people on the coastal part of British Columbia was taken away.

I have often wondered about you people, how on earth did you survive to keep your identity with the crush of the very hungry Europeans who wanted to take over your land and so on and so forth and destroyed some of the well guarded fashion in which your forebears exposed themselves to the wilderness in order to get their needs. You have kept your identity well.

This Committee, I understand, has possibly heard 17 of our groups from different parts of Canada. It is a record for the government of Canada to hear that many Indian groups on one subject matter.

I believe some of you who are present here will recall that in 1946 or in 1947 the government of Canada heard several Indian groups. I do not think it was any more than ten at the very most on the revision of the Indian Act which became the act of 1952. I had the privilege and pleasure of appearing before that Committee.

Every time there is a major change of legislation whereby the government of Canada has to call in witnesses from the Indian people, a little gain has always been made.

Sure, our Indian people in Canada did not feel it was enough. I am of the opinion that there will be some gain, possibly a major gain in this present exercise.

Are all the Indians in Nova Scotia and New Brunswick— and you will have to pardon my ignorance—all treaty Indians to this day? In my province we have possibly less that 1,000 who are under treaty, and they have possibly become the richest Indian band in British Columbia. Are all your people classed as treaty Indians as those tribes in some of the central provinces who have entered into treaty with the British government through the representatives of the Queen? Are you classed as treaty? This is information I really want for myself, because I do not know.

Chief Johnson: No, we are not classified as treaty Indians because the classification of treaty Indians under the Indian Act would cover the ones who have signed treaties since Canada became a confederation in 1867. We have not signed treaties since then.

[page 98]

Most of the Western treaties were signed with Canada, but the Atlantic treaties were directly with the British Crown; thus we have not been categorized as treaty Indians. As central and Western Indians have been.

If I may add one more thing on the question why we survived. In the 1500s our population was over 20,000. There were lots of attempts to poison the blankets; there were massive manslaughter cases; our population did dwindle down to 1,100 by 1841.

It has been an upward battle since 1841; now in Nova Scotia and likewise in New Brunswick our population is over the 5,000 mark in both provinces.

Fortunately, through our strong culture, we did survive through our own self-determination and today the Indian culture is very strong and an ongoing thing in the Atlantic area. 

Senator Williams: I believe in your opening statement or your brief that your organization is 11 years old. Am I right in saying that?

Chief Johnson: In New Brunswick it was organized in 1960, and in Nova Scotia in September 1969; we are 11 years old.

Senator Williams: Last month the organization to which I belong in British Columbia celebrated its 50th anniversary. That is about a month ago. Yet our contact is possibly less than one half the length of time your contact has been with those who came over from European countries.

Possibly one of the reasons why you had no organization before 11 years ago, was the fact that you were almost wiped out by disease and so on.

In your way of life, you have lost a great deal, I suppose. I have often wondered, being from the Pacific coast, that there appears to be no participation by your people in the Atlantic fisheries which can be counted among the largest fisheries in the world; and I have often wondered about this. Why?

I suppose this could be more a question for those from Nova Scotia to answer.

Chief Johnson: First of all, in relation to the organization, the Union of Nova Scotia Indians was incorporated in 1969. We have an Indian organization which existed before the Europeans came. We have the grand council; we have captains, there is a captain on each one of our reserves. Our original Micmac nation consisted of seven territories. Each territory had its own Captain, and in turn they elected their own Grand Captain and the Grand Chief.

This Grand Council is a very strong part of our day to day culture.

It was through the very strong efforts of the Grand Council on the question of the continuation of the customs that our culture is so strong today.

Even though we were incorporated as a body in 1969, we do have a body which has been continuous since pre-European contact.

[page 99]

Dealing with the question of fisheries, Mr. Nicholas has just finished a court battle and perhaps I can ask him to touch on our involvement in fisheries in the Atlantic area.

Senator Williams: I would very much appreciate that.

Mr. Nicholas: If I may, honourable Senator, first of all, as Chief Stanley Johnson has indicated, there was a relationship which existed between the Indian nations at the time. In later times there was the Wabanaki confederacy consisting of many nations and tribes, including the state of Main, and we are trying to revive such a confederacy because it serves our political and survival purposes as well.

In the area of fisheries we have attempted many times to participate in the economics of the Atlantic area. Unfortunately we have not been successful. However, specifically in Prince Edward Island there is a band called Lennox Island Indian Reserve that is into oyster farming. There also is fishing for lobster and also some of our bands in New Brunswick are into the clams as well as the oyster, as well as the lobster; as well as in Eskasoni in Cape Breton; but also the greatest resource that has provided our people with livelihood, the Atlantic salmon, has been in fact what has been denied us to exercise our rights on that. We have not been allowed to exercise our rights to fish for such salmon apparently because of conservation matters I think our people would like to have that economic opportunity because such fishery is readily available to our reserves located along the coast but we need funds to sent up that kind of an enterprise because our people traditionally live off the sea as well and it would certainly be of extreme benefit to our people, to our economy, if in fact our Indian fishermen were allowed to pursue their activity.

The Joint Chairman (Senator Hays): Thank you very much, Senator Williams. On behalf of Mr. Joyal and all members of the Committee I think that Senator Williams put it all together and I should remind you, I sit very close to Senator Williams in the Senate and he represents the aboriginal people every day. He is a strong member of the Senate and the Government of Canada and you are well represented by him.

I should like to thank you on behalf of all members of the Committee for being here and as I said before you are now the 17th group of aboriginal people that have been witnesses before the Committee, that each time we hear some of the aboriginal people we become more mindful all the time of your great problem. Thank you very much for being here this evening.

Our next witness will be the Progressive Conservative Party of Saskatchewan represented by Mr. Grant Devine, their leader, and his colleague Mr. Robert Andrew.

The Joint Chairman (Mr. Joyal): It is an honour on behalf of the honourable Senator Hays and on behalf of all the honourable members of this Committee to welcome Mr. Devine, the leader of the Progressive Conservative Party of Saskatchewan, and one of his colleagues, Mr. Andrew.

I understand that you are familiar with the proceedings and the procedures of our Committee which are to invite our guest to make an opening statement and then receive questions and comments by honourable members of this Committee. So I

[page 100]

would like to invite Mr. Devine to open up the meeting with us. Mr. Devine.

Mr. Grant Devine (Leader, Progressive Conservative Party of Saskatchewan): Co-Chairmen and members of the Committee, I first of all want to thank you for the opportunity to appear before you. I am going to briefly, as briefly as I can, outline several key points to the Committee. In summary fashion I want to say that I am going to recommend that you take your time and not be in a hurry. Secondly, I am going to suggest that the constitution that we have has served us pretty well. Thirdly, I am going to go on to suggest that we need a renewed spirit of co-operation and trust in Canada and that perhaps our real problems are economic in nature related to regional economic development, and I hope to summarize a few points on equalization, the whole concept of equalization as it relates to economic development.

I have a few points to raise on Section 125, the British North America Act, and I want to close again with a renewed call for trust and co-operation in Canada.

Many Canadians from all corners of this country and most assuredly from many parts of my province would appreciate the opportunity to present to this parliamentary committee their passionately held views of what Canada is today and what it could be tomorrow. It is truly unfortunate that more of them will not have been heard, for it is their country you are resolving to change.

I believe that the Committee can take at least some of the credit for the increasing public awareness of the process of constitutional review, I might suggest that given that public awareness has now grown to a statistically recognizable number, our first recommendation is that the Committee take advantage of this awareness and continue its hearings across Canada. I want to stress the time is now ripe, while it may not have been in the past, to hold such public hearings.

In further public hearings, if proceeded with, I urge the Committee to take a special effort to seek out and hear our native peoples—attending on reserves if need be, so they may have access to this Committee. Notwithstanding the awareness of the public constitutional review, there are problems facing Canadians; all are obvious to you.

The process of hurried review, as opposed to review itself, has led to division within this country. There is ample reason for delays and more patient considerations. Continue your hearings, urge the first ministers of Canada to go back to the bargaining table, dispense with any deadlines and let tensions dissipate and passions cool. In that regard, I congratulate the select Committees of the Ontario and Alberta legislatures for their efforts in travelling to various parts of Canada to discuss constitutional reform.

The Official Opposition in Saskatchewan was the first party in Saskatchewan to ask for a delay to reduce tensions way

[page 101]

back last April. This position has now been adopted by the government of Saskatchewan.

In my mind the challenge before you is to seek the reality of a nation. You must have the courage to sincerely recognize and acknowledge that often-fragmented but fundamental fabric of the Canadian identity, that identity that knits us together as a family across 4,000 miles of landscape. Should you fail, the horrible unravelling of a uniquely conceived nation will be your legacy for history to record.

The process of constitutional review should be Canada’s reformation, not its revolution.

And your responsibility does not end in Canada but reaches all nations; the world is watching. How will Canada, one of the freest, most democratically designed nations in written history handle its affairs during times of stress and political unrest? Again your recommendations will be recalled.

Similarly, you most certainly have a responsibility to the principle of democracy itself, to hold before the jurisdictions of the world a constitutional model, unique and renowned for its recognition and protection of the principle of democratic representation. But have you given yourselves and the rest of Canada sufficient time, time to be confident in these proposed and rather dramatic changes that are before us?

Canadians have been able to create new institutions to deal with problems in the past, the Officials Languages Act, the equalization formula are but two unique examples.

The Canadian constitution is not just the British North America Act, but a combination of that Act, other statutes, convention and parliamentary tradition.

Canadians can create, with time, an admired and nationally approved constitutional framework that incorporates the meaningful traditions of our past with the exciting dimensions of our future.

We can build the best and thus we should be in no hurry to settle for less. The world is plagued with mediocrity but let it not find a fertile resting place on Canadian soil or in a Canadian constitution at a time when we are reshaping the very foundation that must hold us together for future generations.

A constitution should not be easily changed. To easily change a constitution lessens the respect people have for it and lessens its power to maintain the fidelity of the nation.

This special Canadian identity is worth holding together and let us not succumb to the temptation of taking people for granted or not being patient enough to listen. Our common understanding of what liberty means in Canada is too precious to reform in a roughshod fashion.

A little over a week ago, on December 28, I heard the Prime Minister of Canada say on national television, that if a nation breaks up because of patriation a constitution or enshrining a Charter of Rights, then it is not worth holding together. I

[page 102]

disagree, comments like that from a national leader, a fellow Canadian, cut deep into the common thread that holds us together and may be part of the very reason this country is at a crossroads today.

Before proceeding let us ask ourselves some fundamental questions. First of all, should Canada have a new constitution? I want to briefly say at this point that yes I think it is apparent to all Canadians that we should bring it home, that it should be Canadianized, that it should not be left in Great Britain. But there is a second question. If there is to be a new constitution, what should it cover. This is where one arrives at the real purpose for all the agonies, threats and counter threats with which we have been bombarded almost daily. There are really only two reasons for rewriting the Canadian constitution. The first is the desire to establish in some immutable fashion the position of French Canada and French-speaking Canadians within the constitution and the second is to redefine the division of powers between the parliament of Canada and the legislatures of the provinces.

Let me deal with the second first, that is, the division of powers between the Parliament of Canada and the legislatures of the province.

The division of powers is almost entirely covered by Sections 91 and 92 of the British North America Act, 1867. It can hardly be disputed that the scheme of the act left residual powers in the Parliament of Canada, but nevertheless, certain areas of legislation were given exclusively to the provinces. I do not need to repeat these to the learned members of this Committee but let me present some supportive argument.

The provinces have specific exclusive powers and the residual powers together with certain other specific powers were given to the Parliament of Canada. One hears arguments these days that the division is inequitable or unfair or just simply wrong. It seems to me, however, that the most striking thing is the wisdom of the draftsmen of the British North America Act, 1867 in dividing the powers in a workable way.

There are certainly some matters which might well be changed but they are in the nature of tinkering rather than being substantive although suggestions for modification will be proposed later in this presentation.

For example, marriage and divorce is given to the federal parliament by Section 91 and people say that perhaps that power should be granted to the provinces. While this point alone is subject to argument, it is surely not a matter of substantial difference across the country.

One also hears that the provinces should be given more power over communications. If this argument is correct, it is really not necessary to change the division of powers for the federal authority could easily delegate such power to provinces.

There is I believe agreement on one area of the BNA Act, and that is relating to direct and indirect taxation. I believe

[page 103]

most Canadians favour a change in that area granting the power to indirect taxation to the provinces, although this is hardly a matter worthy of sustained national debate relating to constitutional reform.

The provinces do complain that the federal government is seeking to encroach on the provinces’ exclusive jurisdiction over natural resources. This is probably not an unfair comment for the British North America Act gives mines, minerals and royalties to the four provinces that then formed the union and subsequent legislation has passed the same on to other provinces. If the provinces own these mines and minerals by law, the federal authority cannot encroach on this right unless it is prepared to take the extraordinary steps of declaring works relating to them as being for the general advantage of Canada within the provisions mentioned above. The political consequences of such a move are surely sufficient deterrent. In addition, it is fair to say that the federal authority should not be able to do indirectly what it could not do directly. The proper interpretation of disputes in this area may only be resolved by judicial decision but in the meantime the necessity of good will, fair trading and understanding strikes me as the missing factor, not rewriting the constitution.

Indeed in a federal system where there is of necessity a division of powers, any revision of the wording is in danger of occasioning more litigation and more misunderstanding then that which has worked surprisingly well for a very long time. It is really not sufficient to say that no one thought of radio and television in 1867 and therefore the statute needs to be revised. Despite such lack of precision on the part of our forefathers, the fact is that a rather workable system was easily found when these modern inventions were developed.

In summary, what I want to say is it is becoming increasingly apparent that so much of the concern surrounding constitutional reform is really not a matter of constitutional relevance at all but, in fact, is the problem of adjusting to perpetual economic change in the various regions of the country. In that regard, it seems much more prudent for us as Canadians to face reality and address the problem head on as opposed to fooling ourselves with the idea, for example, that constitutional reconstruction will once and for all set the price of oil or determine who gets what share of off-shore resources. The constitution of a nation will not, nor should it, be expected to resolve those dynamic dilemmas of running a country.

• 2120

It is precisely here, in this arena of regional economic development, that I see a much larger opportunity for Canadians to exploit their now well accepted principle of equalization. Enshrined or not, the principle of equalization has inherent in its nature, the potential to not only resolve many of these continuing resource development and pricing problems, but in addition, if properly designed such that provincial governments were taxed on wealth rather than resources, we could effectively

[page 104]

reduce many existing constraints on regional economic development. I speak at length on this subject in subsequent paragraphs.

In summary, it seems to me that very little change is necessary on division of powers in the really substantive issues and, with two or three exceptions, that any changes that might be made would only be tinkering and could be accomplished by good will and agreement between the federal authority and the provinces, if they were ready to do so.

Turning then to the need to accommodate French Canada, it is hard to see how a constitutional change would entirely accomplish this end. The British North America Act, 1867 recognized the need for certain provisions relating to language, education and religion.

In addition to preserving such powers, rights and duties, there was a provision for remedial action on the part of the federal Cabinet if a province did not carry out its obligations relating to such education and religious rights.

In order to give permanence to the establishment of rights of separate of dissentient schools, there is a specific provision that if a province establishes such a system there will be an appeal to the federal Cabinet from any later provincial decision affecting rights of privileges so established.

In short, once such a system has been established, rights or privileges thereunder cannot be affected by the province without a right of appeal to the federal Cabinet.

There are, of course, other matters that are raised in the constitutional dialogue. For example, it is said that the Supreme Court of Canada should be enlarged to 11 or 15 or some other number of judges. One of the arguments is that each province should be represented by a judge of the Supreme Court of Canada. Anyone who knows the legal system realizes that this is sheer nonsense.

A country is surely best served by finding the best qualified lawyers and having them appointed to the Supreme Court, regardless of their province of origin.

Indeed, the Supreme Court of Canada Act now provides that three judges must come from Quebec but is silent as to the residence of the other six. While none of the present judges was appointed from Saskatchewan, the fact is that three of them grew up in that province with two graduating from the law school in Saskatoon and the third from the law school in Winnipeg. Consequently, I have difficulty with the position of those public figures who say such a court is biased.

Another suggestion is that the Senate be replaced by a House of the Provinces and that the new House of the Provinces have some or all of its members appointed by the provinces. While there are obvious defects in the present system, surely the only true reform of the Senate as distinct from its abolition, would be to make it elective.

The hope that this might happen is probably not realistic, for an elected Senate would very derogate from the power of the House of Commons and, human nature being what it is,

[page 105]

the chances of the House of Commons consenting to such a result are next to nothing. There are certainly alternatives to the present system, but surely the only really meaningful reform in a democratic society would be to substitute election for appointment and not worry about substituting provincial appointment for federal appointment.

In the end, when one considers the British North America Act, 1867 and amendments together with the other statutes and laws which make up our constitution, there is an inescapable feeling that a new constitution is not really necessary. What is obviously needed is more understanding and compromise between regions and the provinces and the federal authority. It is apparent that amendments to our constitution should not have to be made by the Parliament of the United Kingdom in Westminster, in London and that is granted.

In the present stalemate, why not simply have a Statute of Westminster enacted that the British North America Act, 1867 will henceforth be a law of Canada and of each province of Canada and that it could only be amended in the future by unanimous agreement of the Parliament of Canada and the legislatures of each province?

I know that many people will say that unanimous agreement as to future amendments will never be achieved. This is nonsense for the British North America Act has been amended some 20 times since 1867.

It is also argued that such a provision would give a veto power not only to the large provinces, but also to a province as small as Prince Edward Island. Perhaps this is true, but is this a realistic objection and in any event, is it not better than the current stalemate?

If, at a later time, some other amending formula were found, it could be enacted with the consent of the Parliament of Canada and the legislatures of the provinces. Indeed, the 1964 Fulton-Favreau proposal of an amending formula which was almost accepted contemplated unanimous concurrence to attain certain changes, including the use of language. Other changes would require substantial but not unanimous consent.

A constitution should not be easily changed. It should be the enshrinement of the hopes, wishes, aspirations of this generation and future generations.

A constitution easily changed today will be easily changed tomorrow. In short, beware the panacea of constitutional reform. While it sounds great, it probably accomplishes virtu- ally nothing and is unlikely to affect the lives of any citizens other than lawyers who will have to interpret it and be enriched by the ensuing litigation.

[page 106]

If the momentum engendered by the rhetoric of our politicians cannot be stopped, then at least let us recognize the foresight and wisdom of the present constitution. As Lord Sankey said in 1929 in the case of Henrietta Muir Edwards and Others vs. the Attorney-General for Canada, 1930, when holding that women might be appointed to the Senate:

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a constitution to Canada. Like all written constitutions is has been subject to development through usage and convention.

And he went on to point out that it was not the court’s duty or desire,

To cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the provinces to a great extent, but within certain fixed limits, are mistresses in theirs.

Is it not time someone spoke up on behalf of the good constitution we already have? I submit that the case for a new constitution has not been proved. I suggest the following is all we need to do:

1. The federal Parliament should request the Parliament of Great Britain to enact a statute which would declare that the British North America Act, 1867 is henceforth deemed to be a statute of Canada and each of its provinces, amendable only by unanimous agreement of Canada and its ten provinces. We would then have patriation and the right to revise the powers by unanimous agreement, a position no worse than the present one and we would have removed the stigma of having part of our constitution residing abroad.

2. Let us not seek to entrench a Bill of Rights. This is not the Canadian way and would create more problems than it would solve. Rights can evolve as concepts change and passing laws does not change attitudes.

3. We should resolve the cultural and regional divisions by negotiations and compromise and not by confrontation.

4. The power of indirect taxation could be granted to the provinces.

5. The principle of equalization could be recognized in the constitution and subsequently modified by agreement to encourage economic growth in all provinces.

In the end result, neither the federal government nor the provinces would get, nor do they need, much more power, and the present system would evolve to satisfy the needs of Canada as it always has.

[page 107]

Let me now turn to the federal resolution before the committee, starting with patriation.

We endorse immediate patriation by an act of the British Parliament with the unanimous consent of all provinces.

The very act of patriation must be seen to be an act of all Canadians. To patriate unilaterally makes the constitution in the eyes of Canadians the Statute of one individual or one government.

In my view, no central government has the right to unilaterally modify the fundamental rules that govern the constitutional parameters in a federal state without the agreement of the partners in that federation.

I reject the self-fulfilling pessimism that says that negotiations for a renewed federalism are hopelessly deadlocked. While I, and I suppose most of you, have not been players at that table, I cannot accept this seeming loss of willpower to carry on, to face the challenge and to find the common ground. It seems to me we have faith in ourselves as Canadian people to work together to build this nation or we do not.

It has been said “The people of Canada can no longer tolerate interminable discussion about the constitution… Canadians believe that it is vital that we act now…

The people of my region are not saying that. Two major polls, if we are to believe them, suggest that over 70 per cent of westerners are against this unilateral action. The people that I have talked to seem to confirm this result.

No nation can afford to waste the trust of its citizens. To take the attitude that whether it is right or wrong, legal or illegal, popular or unpopular, constitutionally sound or otherwise that it is going to happen regardless, that we might as well accept the fact is the acceptance of constitutional mediocrity.

Is there nothing left then but concessions, attempts to gain time, or even outright capitulation? I say that if Canadians want to stand strong and independent, then they best be prepared to fight for that right through their principles and their actions, That strong exercise of dissent is the essence of our democracy.

I do not accept the results of the federal resolution as inevitable and we should not accept piecemeal concessions as being good enough either.

Constitutional mediocrity is not worthy of the goodwill or the traditional understanding so essential for the continued pursuit of individual liberty and regional recognition in a country as dynamic and diverse as Canada.

I find the amending formula equally as distasteful as the unilateral nature of the resolution. Many westerners have expressed their opposition to a veto power in perpetuity for the

[page 108]

two provinces of central Canada. If a veto power is necessary for those two provinces, why is it not equally necessary and appropriate for Saskatchewan, or Newfoundland or Manitoba or any other province in Confederation?

Really, what we are talking about is the right of what I would call minority provinces to have power in a federation.

Unanimity perhaps is not the bogeyman that it is so often made out to be. Perhaps the players and not the system have created the so-called dilemma. Constitutions by necessity are designed not to be easily amended.

While direct democracy or referenda have appeal for some, I am not convinced that they will become sound constitutional making processes.

Perhaps some members of this Committee rejected a referendum procedure to determine the question of capital punishment. The argument, and I think with some justification, said that the issue was too complex perhaps for the average citizen; that it was an abdication by elected officials of their responsibility as members; or that if it was used for that purpose, what would prevent its use for another similar issue. If those arguments were valid for the proposed capital punishment referendum, then I submit they are equally valid for the even more complex issue of constitutional change.

We reject unequivocally the referendum procedure for amending the constitution. The bitterness that developed in Quebec during the referendum debate should be justification of itself for rejection of the referendum procedure.

The procedure as well may pit region against region or, worse, province against region, and provinces within their very region which may well leave wounds that will take a long time to heal, if ever.

The referendum procedure will surely entrench division and antagonism in our country. No tinkering with the principle of amendment by referendum will improve it sufficiently to warrant our support. It is a dangerous and potentially divisive weapon that rules out compromise when there is deadlock. During difficult negotiating time is when we most need compromise and conciliation, not the confrontation of a referendum.

I urge members to remember a constitution is not a statute to be easily changed but is a body of law that embodies the spirit of the nation.

I repeat, a constitution easily changed today can be easily changed tomorrow.

With respect to the Charter of Rights, I want to briefly say that I endorse the position very ably argued by Premier Lyon

[page 109]

of Manitoba at the First Ministers’ Conference in September and endorsed by Premier Blakeney of Saskatchewan. I am in full support of human rights and liberties, but not entrenchment.

We do differ from the Government of Saskatchewan, how- ever, in that our position is unequivocal and not negotiable—in other words, we do not believe in swapping rights for resources. In this, l believe, we have some support from the Government of Canada.

While I do not wish to dwell on this point, I do wish to observe that few countries in the world have more rights and freedoms than does Canada.

Most of the rights emanated from the people and the political process, not the constitution or the courts.

Let me turn now to what I would like to call new proposals specifically linked to economic development, regional resource control and equalization.

I think it is probably well known that Saskatchewan’s optimism lies in tomorrow. Our potential for increased wealth and prosperity depends very significantly on the development of our natural resource base. Similarly, our ability to contribute to Canada in a more substantive fashion is geared to the rate of capital accumulation originating from both renewable and non-renewable resources.

A necessary prerequisite for rapid economic development in our province is confidence. The investment capital needed from private and public sources will flow into resources at a rate that is directly proportional to the growth in confidence that (1) adequate returns will be achieved and (2) that governments will not change the rules in the middle of the game. It is fair to say that the confidence index, if we could label it that, in Saskatchewan has substantial room for growth in the years ahead.

The manner in which the constitutional resolution addressed the resource question will have a paramount effect on the development of resources in this nation. First, it must be recognized that the unilateral action by the federal government with respect to the constitution, coupled with the recent budget, has significantly diminished the investment climate in Saskatchewan and further tarnished the trust and therefore confidence of Saskatchewan investors. The sad consequence is that when resource development slows down in Saskatchewan, Canada loses.

Saskatchewan is often referred to by many of its residents as “next year country”. While we are by nature an optimistic lot, the realities of today are that much more difficult to endure as the dreams of prosperity tomorrow are threatened by the increasing burden of federal tax on our resources.

Today the federal government taxes Saskatchewan resources, our future, but not our wealth, because the wealth is

[page 110]

not there to be taxed. Furthermore, the wealth never will be recognized if the present policies are continued by Ottawa.

For example, since 1974 Saskatchewan has sacrificed over $3.2 billion in provincial income by selling oil for less than the international price. Eastern Canadian consumers of Saskatchewan oil received $1.9 billion in benefits and the federal government collected $1.3 billion in oil export tax. The federal government collected an additional $400 million in corporate income taxes from Saskatchewan’s oil production and nearly $130 million from a special excise tax initiated in 1975.

Consequently, Saskatchewan people have contributed to other Canadians over $3.5 billion from one non-renewable resource—oil—since 1974, while Saskatchewan received only $1.8 billion in royalties and tax from the same resource.

And how has the Saskatchewan economy fared as a result of this federal resource tax scheme? The answer is: we have not fared well.

Saskatchewan’s per capita income remains well below the national average and fails to grow as quickly as in other parts of Canada and has failed to even keep up with the rate of inflation since 1976. Personal income tax rates in the province have increased 35 per cent, as a percentage of the federal tax, since 1971, resulting in one of the highest levels of tax in Canada.

Similarly, there have been increases in health tax, education tax, corporate tax and municipal tax—all indications that the current federal system does not, as expected in theory, provide for social services with only modest increases in the level of provincial tax.

As a consequence of the federal and provincial tax schemes, there have been several corresponding signs of a reduction in the quality of life. The province of Saskatchewan spends less on health care per capita than any province west of the maritimes. We are the only province in Canada suffering a net decline in rural population—over 50 per cent of the towns and villages are dying—and our total population remains virtually where it was in 1936; public utility rates in Saskatchewan are escalating rapidly and the general level of social services in the province is falling behind public expectations.

The situation in Saskatchewan was perhaps best summed up by Premier Blakeney in his address to the Ontario Select Committee on Constitutional Reform in September, 1980.

Our personal income per capita in 1979 was below not only Ontario’s, Alberta’s and British Columbia’s, but Quebec’s as well. It is simply not true that we are

[page 111]

wealthy, certainly not true that we have been wealthy over any considerable period of time and could therefore have built up our public services. One needs to be wealthy for 10 to 15 years before it reflects in roads, schools, hospitals and all of the things which come from having wealth.

The point is, the federal government should tax provinces on their wealth, when they develop it, not tax their resources, which takes away their ability to create economic activity and accumulate wealth. If a resource like oil makes Saskatchewan wealthy, then tax the wealth and redistribute the income to all Canadians, but do not force Saskatchewan to pay Ontario and Quebec just because we have a particular resource, when they are much wealthier than we are.

There is a growing tendency in the Government of Canada to be more concerned about the growth in Government revenues than the growth and economic development and wellbeing of Canadian citizens. In the case of oil in Saskatchewan for example, the federal government receives $21 for every barrel of oil exported from Saskatchewan to the U.S.. The industry and the province each receive approximately $7 per barrel. As a result oil production in Saskatchewan has declined over 35 per cent since 1970 at a time when oil supply is commonly recognized as the key to our Nation’s future economic prosperity

Most every oil company I know in Western Canada is decreasing its investment in Canada and increasing investments in the United States.

The inconsistency of government activity is the major cause of considerable distrust among Canadians today. The federal government believes that the oil industry might make windfall profits so it keeps the oil price low in Canada, but taxes Canadians to pay the world price—and windfall profits—to oil producers in Mexico, Venezuela, and the Middle East, why should the federal government be trusted when it is generally agreed that this country needs rapid development of the oil industry and yet Canadians are less entitled to resource revenues than are foreigners. We are paying fortunes—lost forever—to other countries, from whom we receive no security of supply, with dollars we do not have.

Some Quebec politicians say they support resource control by the provinces, yet they argue for nationalization of the oil industry in Canada and oil prices set in Ottawa and kept low. The Government of Saskatchewan says it wants control over provincial resources to return the benefits to the people of Saskatchewan, but it is the only provincial government in all of Canada that has offered to give the federal government 50 per cent of all provincial future old oil revenues. Similarly, the

[page 112]

Government of Saskatchewan says it wants control of natural gas to safeguard the people of Saskatchewan, yet in the face of a 40-year surplus supply in Western Canada, the provincial government denies the farmers of Saskatchewan the right to use it.

We are increasingly concerned about the inconsistency of the Saskatchewan Government’s position. The national energy bank proposal will mean the Government of Canada would receive 50 per cent of all future old oil revenues. We reject most strongly the Saskatchewan Government’s proposal of a national energy bank and hope that the inconsistency of the Saskatchewan Government’s position will not mislead the Committee into misunderstanding the firm desire of the Saskatchewan people to control their resources. The control of our resources is simply not negotiable.

I have a belief, shared I believe by most western Canadians, that if we become more wealthy and confident in our abilities to solve our social and economic problems, we will contribute most generously to the rest of Canada. But please give us a chance to prove it. Do not take away our resources, or the benefits thereof, before we have had a chance to prove to Canada that we can act responsibly and in Canada’s interests as determined by all Canadians.

Trust us to be good Canadians. Trust us to treat the rest of Canada fairly. Trust us in Saskatchewan and western Canada to be full and equal partners. Do not take away our resources and our wealth potential before we have a chance to prove ourselves as Canadians. Trust western Canadians to use our resources for the people of our region and our country. Let us build on our resources, all of Canada will benefit.

The unequivocal acceptance of the rights of provinces to own and control their resources could lead to an exciting new principle of equalization in this country.

The principle of equalization, the sharing of revenues among provincial partners in a federal state, has become an important facet of our Canadian heritage. It is my belief that the concept of equalization could be employed to much greater benefit for all Canadians and embodied in the constitution.

A properly drawn equalization formula would not only create a healthier economic climate and thus more wealth for all, but would also provide a more efficient and fluid mechanism for federal-provincial adjustment to dynamic economic circumstances in resources and technology in the years ahead.

If allowed to function properly, a contemporary equalization program could strengthen regional equality, better recognize and respect regional differences, and needed confidence for more rapid economic development, reduce the often high levels of bureaucratic duplication and increase the wealth in growth areas while subsequently enhancing the contribution to slower growth regions. The key element in allowing this equalization

[page 113]

concept to perform is to reduce the federal constraints on provincial and regional economic development that is tax the wealth, not the resource, with the specific understanding and agreement that the benefits are shared directly with less economically fortunate regions.

The level of sophistication in the provincial governments of the 1970’s was so dramatically improved that they bear little resemblance to the administrations of the 1940’s, 1950’s and 1960’s. The capacity and growing responsibility of provincial governments of all political persuasions to manage billions of dollars annually has demanded a level of professional expertise not previously apparent in earlier times.

This new managerial capacity and sophistication must not only be recognized by the national government but should be exploited to the benefit of the country. In fact, to attempt to smother or reduce this evolutionary potential at the provincial and regional level is to challenge contemporary and technological times and invite outright antagonism from the very people that are striving so very diligently to perform.

What I am talking about specifically is for the federal government to recognize that in many regions of Canada today, and certainly in my region, the federal government is perceived to be, and not entirely without justification, a threat to economic development rather than an ally, thus, in my mind this is the time for the development of a full and absolutely unequivocal partnership between the two levels of government in this country. More specifically, it means agreement on constitutional jurisdictions deemed to be of common interest to both levels of government and it means no right of paramountcy without the unanimous agreement of the partners.

What this initiative would do is show respect—the key to successful federalism, and what this initiative would capture, for Canada, is phenomenal growth, productivity, wealth and substantial economic independence for the nation within the decade.

Most actions of the federal government to date only re-emphasize to western Canadians that the provincial governments are best able to solve their economic, social and developmental problems.

Regional equality would be strengthened by the very act of recognizing provincial governments as full partners in the confederation. Similarly, the potential for economic equality significantly improves because of the added incentive for regional capital accumulation on the one hand and because of the larger regional revenues accumulated for redistribution and reinvestment into other parts of Canada.

As a consequence of the expanded capital accumulation in each province, the unique cultural and geological attributes of various regions would be both better recognized and developed by local administrations more intimately aware of them and now more financially capable of action rather than rhetoric.

[page 114]

Similarly, the potential jurisdictional problems related to Section 125 of the B.N.A. Act, which says that no lands or property belonging to Canada or any province shall be liable to taxation, could be avoided by designing an equalization principle now. The last thing we want to witness in Canada and I am very concerned about the position in the last decade is a fight between the federal and provincial governments to see who can nationalize the nation’s resources the fastest.

In terms of general economic efficiency with respect to the public administration of equalization funds and their use, there is growing and now substantial evidence to support a more contemporary equalization mechanism that could even include a more direct transfer of equalization payments between provinces as opposed to straight federal tax collection and subsequent redistribution.

A recent publication by the Canadian Tax Foundation outlines the potential:

… equalization payments do not involve transfers from the have provinces to the have-not provinces; rather they involve payments from the federal government to the poor provinces. The equalization formula takes into consideration the tax capacity of the provinces to which the payments are being made but ignores the incidence of the federal tax revenues used to finance equalization. That is, the equalization formula determines “gross payments” and not “net payments”.

This feature of the program implies that increases in revenue sources in one province can impinge adversely on a province which is on the one hand a relatively small recipient of equalization, and on the other a large contributor. For example, a large increase in resource revenues in Alberta would increase equalization payments to the have-not provinces. A significant proportion of which would have been financed out of Ontario residents’ federal tax contributions. Indeed, despite the fact that the equalization of resource revenues has been cut to 50 percent, Ontario has become a have-not province for equalization payments, as discussed earlier.

The difficulty arises because the federal financing of equalization payments is not distributed over the provinces in the same manner as provincial tax capacity is. The federal government does not rely on the same mix of taxes as the provinces. If a have province obtains a large increase in a provincial tax base, the equalization scheme cannot directly transfer revenues from that provincial tax base to have-not province. Only a scheme in which redistribution goes from province to province rather than from federal government to province can do this.

[page 115]

In summary, the Canadian concept of equalization holds within its conceptual design the exciting potential for more rapid regional economic growth and a high standard of living for all Canadians. The key element for its success lies in the ability of Canadian politicians to design a dynamic arrangement to tax wealth rather than resources. As a recognition of equal partners within confederation, we believe both levels of government have valid arguments to have access to all areas of taxation and clearly that means provincial governments having the power of indirect taxation.

As I said at the outset of this presentation, constitutional review should ultimately be Canada’s reformation, not Canada’s revolution. I believe Canadians are too sophisticated to accept any form of symbolism as a solution to such complex problems as social, cultural and economic stress. The unilateral patriation and amendment of the Canadian constitution, could now more than ever entrench division among Canadians, rather than open new doors of understanding and cooperation.

Saskatchewan people stand always ready to be partners but never victims in this federal state. Whether it ever be true or not, you can never afford to be perceived as tinkering with the trust of your fellow citizens. Let me make the following summary points.

1. The issue of patriation and amendment of the constitution of Canada is too important to attempt in a hurried fashion. The dangers of no constitutional change have, in my view, been exaggerated, constitutional change is no panacea. What is needed in Canada today, and certainly before any major constitutional reform, is a change in attitude towards good will and trust. In this regard it is recommended, at a minimum, that the Committee continue this opportunity to travel extensively throughout Canada to hear the views of all Canadians, not the least of which those of Indian and native origin.

2. We endorse the immediate patriation of the Canadian constitution by the act of the British Parliament with the unanimous consent of all provinces and correspondingly reject unilateral action by the federal government.

3. We reject without equivocation the referendum procedure for amendment and ask that the formula for unanimity be reconsidered. We support the principle of unanimity in regarding amendments to the constitution on the grounds that if there is to be a veto power, it should be granted equally to each and every partner in Confederation. The exercise of dissent is the essence of democracy.

[page 116]

4. We support human rights but reject the suggestion that those rights be enshrined in the constitution. Entrenchment will mean courts legislate human rights but courts are not the proper vehicle—the legislatures and parliament are. Human rights are not negotiable and should not be traded for rights over resources.

5. We propose that the provincial governments be given the full opportunity and trust to develop their natural resource and subsequently be taxed on their wealth and not on their resource base. The principle of equalization, sharing revenues between provinces, should be further expanded to provide maximum incentives for full economic development in every province. In the context of a renewed and unequivocal partnership, both provincial governments and the federal government should have access to all forms of taxation.

The one question that has come to mind time and time again while reviewing this federal resolution is this: would the original provinces join Canada and sign the BNA Act as it is now proposed by the federal government? I suspect many would not, as Canadians proud of our progressive heritage, we should avoid taking two steps backward in our hurry to take one step ahead.

The core of our civil courage as a country lies in the dignity of each individual Canadian. We are at a time in our democratic history when our leaders must have the courage to listen and defend, not so much their rights, as their obligations to the individuals they represent.

In summary, Mr. Chairman, I would like to say and re-emphasis that we sincerely encourage the Committee to take the time and particularly to travel throughout this country before any major changes to the constitution are made.

• 2200

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Devine. I would like to invite now the honourable Senator Duff Roblin to open the discussion with our guests this evening.

Senator Roblin.

Senator Roblin: Thank you, Mr. Chairman. I am glad, Mr. Devine, that I am the first to have the opportunity to thank you for your very interesting presentation to us tonight. I was struck by your first paragraph in which you thank us for the opportunity to appear. I have to tell you that you are rather lucky that you are appearing because I think if my count is right you are about the 88th representative that has come before this Committee and there are some 400 others who would like to come, almost none of whom will be able to

[page 117]

address us, much to my regret, before we proceed to other business.

I rather like the stern admonition which you introduced into this discussion in reminding us of some of the fundamental facts that a Committee like this should have foremost in their minds when they discuss how best we are to reorganize the constitution of our country and I think you made some excellent points which certainly registered with me.

There are a number of interesting items in your brief and I regret that I will not have a chance to get around to all of them, some of which are original in their recommendations to us, some of which I have some concern about and which I would like to express further, but perhaps you will understand if there is one suggestion you make in your brief which I am glad to underline and that is your proposal for the reform of the Senate. I am happy to see that you would like to see an elected Senate. I am glad I found one convert. I must say there are not very many people who take that view at the present time although I myself have being doing what little I can to advocate consideration of that very useful and democratic constitutional reform. I think it would do a great deal to bring regional and provincial presence into the federal center in a way that would not disturb the supremacy of the House of Commons as the maker and breaker of governments in our country. I think that is a valuable suggestion. I am sorry we will not have more time to develop it this evening.

I want to come to what I take to be one of your main points and that is this question of natural resources and how they are to be handled in the economic interplay between the two levels of government and the industry in our country. I take very well the point that you make about its important relationship to the future of what has been perhaps a disadvantaged section of the country in days gone by which is perhaps moving out of that stage pretty rapidly now, but you make the distinction between taxing the resource and taxing the wealth. I think I know what you are driving at but I wonder if you could expand on that point for me, what is the difference between taxing the resource and taxing the wealth that the resource is producing.

Mr. Devine: As I suggested in the brief, Saskatchewan today remains a have-not province, that is it receives equalization payments because their income is below the national average and the tax base is not there. We have, as have many regions of Canada, the exciting potential to increase that wealth, to be a major contributor, and if in fact we can develop our resource base and particularly our non-renewable resources and invest them into our province through incentives particularly to renewable things like agriculture and timber and tourism and the things that will sustain economic activity for years to come. Now, we are prevented from doing that as we are today because we have a particular resource, by the federal government coming in and saying I am going to take half of that resource now before you even accumulate the wealth we can never get on with the job, and when that

[page 118]

non-renewable resource like oil, for example, is gone and we have not invested it in our province and our province is a very big part of Canada, we lose.

So what I am suggesting is, why tax us because we have a particular resource? The universal medium of exchange is wealth, is dollars. As we accumulate those dollars surely we are willing to divide up that wealth to the rest of Canadians, but let us accumulate it. Let us build. The way it is today a good part of that resource is taxed before it even gets into the province, into economic activity, and it is gone and redistributed and as a result Saskatchewan, which is poorer if you will than Ontario and Quebec, has to pay money to Quebec and Ontario even though their incomes are much higher than ours, and on top of that we do not win. Our income stays below the national average and our economic activity does and our income does not move as fast as the rate of inflation.

So let us get on with the principle and opportunity by building there by reinvesting those funds again and again and wealth will accumulate and goodness knows there will be lots to tax but what it allows is growth and that is what has been happening in Saskatchewan or in Canada from an economic point of view is that we have not been taking advantage of the resource potential and growth, in my mind. We have been too busy taxing. To be benevolent you have to have something to give. Let us really be benevolent, trust us to build, trust us as Canadians to take that wealth and build for the nation and tax on that wealth. If you take it and tax the resource now, we never have that opportunity.

Senator Roblin: I suppose one of the problems is that at least one level of government is anxious to get its tax collecting hands on that resource as soon as possible. I suggest that how perhaps that part of the problem might be met without so radically revising our present system as you suggest, would be to make sure that in the case of oil, for example, that it does rise in a reasonable relationship to international prices rather than our present policy of federal control on that.

I will leave that argument because we can pursue it at some length and I have a couple of other points I would like to get off my chest.

I am interested in your argument about equalization and of course I appreciate that relates to the resource, the wealth creating capacity of a province.

Mr. Devine: Right.

Senator Roblin: But you have a novel idea here as far as this Committee is concerned, I think, and that is that you suggest that at least part of equalization should not be solely that money that flows from the province into the federal treasury and then is redistributed by the federal government but rather the provinces that have the wherewithal above the national average should contribute directly to provinces which are in need. Is that your proposition?

[page 119]

Mr. Devine: It moves along that line. What I am suggesting is that there certainly are more efficient ways in theory and in practice to redistribute the wealth. To date when the federal government decides where the equalization is going to go we can find for example that Ontario under certain circumstances will receive equalization benefits because the process to date does not take into consideration all of the factors between the have and the have-not provinces. If we could even consider or move towards, and it has been suggested—I cannot recall the man’s name from Toronto I believe—but a constitution equalization expert, he could set up an equalization council. I do not mean to be radical in a sense but we can be much more efficient as Canadians. We do not want to waste and we do not want money going back and forth and in and out of have provinces, between Alberta and Ontario, when in fact it should not be, if we can move towards a system that is a little more efficient that says if there are have provinces that are creating wealth and there are have-not provinces that need money and wealth let us as effectively and efficiently as possible make the transfer.

Senator Roblin: I can see the theoretical goal that you are aiming at but I must confess that I have some reservations as to whether in practice we would find that it would be easy to reach an agreement as to how surplus provincial revenues should be distributed, but leaving that caveat to one side there is one point in your brief that I think perhaps needs further examination from my point of view and that is this question of the language guarantee which you suggest need not be entrenched in the constitution but rather should be handled under Section 93(3) of the British North America Act. That is the Section that allows my province and certain others, but certainly the province of Manitoba in the Manitoba Act, allows for an appeal to the federal government if a group thinks that their separate school rights are being damaged by the community in which they live and I presume you would apply that to language rights.

I have some concern about that. That is the policy of remedial legislation as I think it is technically called because we had a problem like that in Manitoba in the 1890s. The government of that province, not belonging to my political stripe, I hasten to say, abrogated the rights of the separate schools in Manitoba and in appeals made to the federal cabinet at the time it was dealt with and the way to deal with it was to have an act of Canada passed to remedy the default. It is a famous constitutional case, I am sure you are aware of it, but the bill was fought bitterly in the Commons. Sir Charles Tupper’s government carried it to the last day they were allowed to by the law and then they had to leave office with the bill in limbo. Then when the new government came in under Sir Wilfred Laurier he decided that it would not be advisable to proceed with that piece of remedial legislation. So I worry about that, and I wonder whether protection under the remedial section of the British North America Act would really give the protection which minority groups seek; and if you are a minority understandably you want some pretty firm guarantees; so I put it to you that that particular proposal while I think interesting and indeed causes people to

[page 120]

think, I just do not know whether it is going to be strong enough to do the job that some of the minority groups in Canada would like to have.

Mr. Devine: If I could suggest, that is why I put it there, to cause people to think. I used it as an example rather than really a matter of substance. I wanted to point out that under our current system, our constitution, we have these mechanisms and they work not too badly. I am not opposed to enshrining language rights in a constitution. I do not see it as any major reason to have sustained debate on constitutional reform.

Senator Roblin: Otherwise we can get you to agree to that pretty easily.

Mr. Devine: I just do not see that as something that is of major controversy across the country. I think there would be general acceptance.

Senator Roblin: Yes.

Mr. Devine: But I use it as an example to say that we have dealt with these kinds of problems in the past with our existing constitution and it has some merit in that regard.

Senator Roblin: I think Manitoba’s experience was not very happy with that particular clause.

There is one other point if I may continue, Mr. Chairman, that I would like to develop, and that is this question of the amending formula. I appreciate the strength of the point you make about the use of a referendum I guess because I agree with it, but I do put to you that it might be that an amending formula which really involves unanimous consent of the provinces certainly would make for a rigid constitution and my concern is that it might be too rigid, and I put it to you that there is another formula which in my opinion meets some of the objections that you have to what is in the bill, that is that some provinces are more equal than others and have a perpetual veto, and that formula is called the Vancouver formula and you may well be familiar with it. It provides for an amendment of agreement with the federal government and two thirds of the provinces representing 50 per cent of the population plus the right of withdrawal or, as they say, opting out on any amendment that affects existing rights, proprietary interests or the jurisdiction of a province. The opting out portion is limited to certain important particulars; but it seems to me that that amending formula has the very considerable merit of allowing change while at the same time allowing provinces to protect their vital interests when they feel they must do so by means of the opting out. It has the further advantage, I submit, that in spite of some of the testimony that has been before us I think it is now generally accepted that that formula has a wide measure of support, perhaps a consensus among the provinces, if only the federal government would agree to it.

Would you be willing to accept the Vancouver formula instead of a unanimous consent proposition, for the reasons I have stated?

Mr. Devine: I appreciate the case that you have made. I support at the outset unanimity because if there is going to be a power of veto I am just uncomfortable with leaving that

[page 121]

power of veto with one province and not another, despite its size, and when I made the point I am not sure provinces, the initial original provinces, would join Confederation under a system where some of them had a veto power and some did not. That is when I said I am not sure that we want to go back two steps in our hurry to go forward.

Now, I do not endorse the status quo. We can and will be and shall be better but I really want the Committee to reconsider unanimity because constitution should not be quickly changed. Particularly I guess I would say I could move towards your position on areas that have concurrent concern to federal provincial governments, particularly in the division of powers. I guess I would be more comfortable with three quarters of the province and 80 per cent than I would with two thirds and 50 per cent but I would be most comfortable with unanimity. I just want to protect the nature of the partnership, that it is full partnership, whether you are tiny like Saskatchewan in population or whether you are large like Quebec, and I hate to think that the people of Ontario or Quebec or any place else have that power but I do not because I am less of a partner, and that is my reluctance.

Senator Roblin: I think that we are on all fours on that point. But I really put it to you that the way the Vancouver formula is constructed it does not impose the will of a large province on a small one. It does provide for change but it allows somebody that really cannot take that change, for example if it was a change in language rights, the province affected could simply say no thanks, I am out of this deal, and it seems to me that this would give us a little more flexibility.

Mr. Devine: Certainly if the provinces and the federal government agree on a method of amendment, that is all it takes. I would support whatever they can agree with, but I would be uncomfortable with any unilateral move that says it is going to be two thirds and 50 per cent if you could not get agreement.

Senator Roblin: I am with you on that. I think the call is for a meeting of the First Ministers to deal with this one question of the amending formula and my hunch is if that call went out from the right quarters that it would be accepted.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Roblin. Mr. Nystrom followed by Mr. Bockstael. Mr. Nystrom.

Mr. Nystrom: Thank you very much, Mr. Chairman. I want to welcome I think as the only Saskatchewan member of the Committee here tonight a fellow Saskatchewanian, Mr. Grant Devine, and his colleague, Mr. Andrew who is the MLA I believe for the riding of Kindersley in my province, and say to you at the outset that 1 believe if my memory is correct you are the sixth witness or group of witnesses we have had from the province. Of course we have had Premier Blakeney; we have had the Saskatchewan Federation of Indians; we have had the Metis Society from our province; we have had the Saskatchewan Human Rights Commission and we have had the Federation of Saskatchewan Francophones, so I appreciate

[page 122]

very much you coming down here this evening and sharing your point of view with us.

I also want to start this evening by picking up on two of the lines of questioning that were started by Senator Roblin. He mentioned the amending formula; he mentioned equalization. I will begin, Mr. Devine, with equalization if I may. You are introducing a new concept to the Committee which is the concept of a wealth tax and if I can refer to page 8 of your brief you say, and I quote:

in addition, if properly designed, such that provincial governments were taxed on wealth rather than resources, could effectively reduce many existing constraints on regional economic development.

As you said, you are talking here about a tax on provincial governments.

Could you explain how you see this? We do not today tax provincial governments. Are you talking about Ottawa imposing a tax on Saskatchewan or Newfoundland? This is a radical departure in our policy.

Mr. Devine: Maybe I could go back and try another example. The federal government today it seems to me says that I am concerned about windfall profits in the oil industry. But if there are windfall profits in the oil industry it is the fault I would suggest of the federal government for not taxing them properly and if it is their responsibility to tax them and they are not doing it right why turn your frustration on to the province and tax the provinces resource? That is in essence how people in Saskatchewan view it. They say, all right, if you think it is unfair, fair enough, but why do you not change those tax laws to address the problem directly as opposed to picking on poor Saskatchewan or anyone else and saying, well, I am going to have 500 million dollars this year out of your oil before you get a hold of it. It seems to me two things, if they were changed, if they do not like windfall profits well then tax them, that is a responsibility and, number two, allow the province, whether it is Saskatchewan or Alberta or Newfoundland or whatever to invest that non-renewable resource money to create economic activity and then you have lots of people to tax, lots of multipliers working and more wealth and more tax because not only does your tax base deepen but it increases in breadth and it grows in terms of population with that economic activity. So I am not saying that the federal government has to come out with a new tax. It has every tax possible imaginable at its discretion. Just use it on the wealth as it is created rather than taking it from us because it feels that the oil companies are making too much money.

• 2220

Mr. Nystrom: No, I certainly agree with you that we have been taxed much too heavily by the federal government in our province on oil because of the export tax, and you say about $21 a barrel goes to the federal government while about $7 goes to the province and $7 goes to the companies, that is very unfair.

[page 123]

My question is that following on page eight of your brief you are suggesting that provincial governments may be taxed on wealth. In other words, you are talking about a wealth tax on provincial governments and I think that is something new, maybe it is a misprint in your brief. I am not sure.

Mr. Devine: No, I am not saying taxing provincial governments, I am saying taxing the wealth there that creates or that is created in the province like they tax today. It is not a new tax on the provincial government.

Mr. Nystrom: Maybe it is just a misprint because you do say in the brief that if properly designed such that provincial governments were taxed on wealth rather than resources.

In terms of a wealth tax, then, would you apply a wealth tax on a fund such as the Alberta Heritage Fund?

Mr. Devine: That is a problem that is related, I suspect, to both Saskatchewan and Alberta because of the heritage funds there, and I am not sure that it is totally resolved as yet. Certainly it is the view, I would suspect, in Saskatchewan, and I cannot speak for the Premier, but I would suspect it is his view, and certainly I would think it would be the view of the Premier of Alberta, that a good part of the non-renewable resource wealth should be reinvested into that province because when it is gone, it is gone, and we have nothing to show for it. If we can take non-renewable resource wealth in Saskatchewan and invest it into renewable, long term sustained activities like agriculture, like tourism, like timber, then we can have economic activity for years to be taxed by the federal government for future generations.

Now, there may be some balance, some point in time where you will say: well, if it is building up too big or some share or some resources may be renewable or non-renewable, but I would like to raise the point with the Committee and I am very glad you raised the question because it is very applicable, in the Alberta Heritage Fund, I believe now there is about 7 billion dollars and people say that should be distributed across the country, or I have heard people say that when I  am sitting in eastern Canada.

I would like to remind the Committee that Ontario Hydro is valued at $14 billion, and 1 have not heard cries from western Canada to redistribute Ontario Hydro. Now, what Alberta maybe could do is take the $7 billion dollars and buy Calgary Hydro.

Mr. Nystrom: Would the wealth tax be applicable to Ontario Hydro under your scheme?

Mr. Devine: Well, this is my point, if they bought some form of hydro then it is not likely to be because Ontario Hydro is not. As Bob suggests, Ontario Hydro creates wealth and economic activity and jobs and prosperity, so Ontario can contribute to other provinces that are have not. So if in fact the heritage funds in Saskatchewan and Alberta are creating economic activity, being funnelled into research and development, buying hopper cars, building ports, spent on transportation,

[page 124]

spent on health care and so forth, not only the province but the nation is being improved.

An hon. Member: And by the provinces.

Mr. Devine: And financing other financial things in various other provinces.

Now, it is a question of negotiation whether that should be taxed immediately or how much of it someplace else, if in fact it is creating more in the province of Saskatchewan and Alberta than it would be anyplace else, therefore there is more to be redistributed.

Mr. Nystrom: In terms of resources, I wanted to ask Mr. Devine a couple of questions as well.

You say on page 12 of your brief a number of things you would like to see in terms of the Canadian constitution, and there is no direct reference there to resources. Point 4 on page 12 says the power of indirect taxation could be granted to the provinces and of course this would apply to the resources as well.

I was wondering whether or not you differed from any of the recommendations made by Premier Blakeney in his constitutional energy policy to this Committee, namely to his reference to having concurrency in interprovincial trade, international trade, the right to levy indirect taxation, confirmation of provincial ownership of resources, and I say that knowing that you know of course the history in the province as well with a court case over central Canada potash and the Cyvol case and the problems we have had there with jurisdiction.

Do you endorse his energy policy as far as constitutional changes are concerned, and if you do not where do you differ, if you have any additions what are they, if you have any deletions what are they?

Mr. Devine: Well, what I was trying to do was be a little bit more realistic, I believe, than the Premier of Saskatchewan by suggesting that we could do what we want to do in creating economic activity and promoting regional development without major modifications to the constitution, changes in the constitution will not set the price of oil and will not decide who gets what share of the revenue from any particular resource.

I am suggesting here that if the federal government would accept it, fine, we will enshrine indirect taxation in the constitution so the provinces can have that right or have concurrent power over interprovincial or export trade, but I am not sure that we will. I am not convinced that they will. What I am suggesting is that you can do it by agreement, we have done all kinds of things by agreement in the past because we have accommodated and traded and negotiated in trust, so what I am suggesting is, alright, they could be enshrined in the constitution, equalization can be enshrined in the constitution and certainly the power over export trade to be concurrent jurisdiction because it concerns both.

However, what I am suggesting is that we need not have major constitutional reform to get on with the job.

[page 125]

Mr. Nystrom: Is it important those three or four items be enshrined in the constitution?

Mr. Devine: Well, again, I would go back and say I believe that we must be careful and take our time in changing the constitution because it is not a panacea. If it were just enshrined you could still have debates over the price and you can still have problems with Section 125, that could lead to a lot of debates.

So I am saying to Canadians: do not hold your breath just because something is enshrined in the constitution, say concurrent powers, and we could say that is important; it would not set the price and there could be major disagreement, and then if there is confrontation on Section 125 we could see this rush to see who can nationalize the industry first because there is no taxing on other governments property.

The Joint Chairman (Mr. Joyal): That will be your final question Mr. Nystrom.

Mr. Nystrom: If it is my final question I will just switch to one more area and that is the question of the amending formula.

Mr. Roblin has asked a number of questions there and I have the same concerns that the Senator has and also similar concerns that you have about granting vetos to certain provinces, and there have been a number of other suggestions made before the Committee, Premier Blakeney made one himself. There have been suggestions of the Toronto consensus, the Vancouver consensus, various combinations of the Victoria consensus we are dealing with in the resolution, and I think you are the first person who has come here and suggested that we should have as our permanent amending formula unanimity, and the Senator has expressed the fear that this could be a very rigid amending formula and leave us in a bit of a straightjacket position and I totally concur with him and I would like to ask you why you feel so strongly about that, and secondly do you know of any other precedent in the world, any other federation where all of the states have to be in agreement before you can amend the constitution?

That is certainly not the case in the United States, the federation just to the south of us, it is certainly not the case in the Swiss Federation, it is certainly not the case in Australia. Is there any precedent that you are drawing on? Why do you feel that way?

That is certainly novel and I think many of us here think it would leave us in very much of a deadlock situation and it would be very, very damaging to the future growth of this country?

Mr. Devine: Well, what I am asking the Committee to do is reconsider the principle of unanimity, and I do that on behalf of the people of Saskatchewan who say that if we are going to have a veto power in this country and it goes to a big province why is it a more equal partner than I am? Now, that is not to say that I would not accept an agreement among provinces that designed an amending formula that may have unanimity on matters of interrelated concern and less than unanimity on some others, but I am asking the Committee to seriously

[page 126]

consider what are the problems with equal partnership on matters that concern both the federal and provincial government? Why not have equal veto power? People that I talk to in Saskatchewan say, well, on those important matters I am jus as equal as anybody else.

That is the reason I bring it up to the Committee, to say reconsider it. Is it that bad?

Mr. Nystrom: Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

Mr. Bockstael followed by the Honourable Perrin Beatty.

Mr. Bockstael: Thank you, Mr. Chairman.

Mr. Devine, I am happy to welcome you on behalf of the members on the members on the Liberal side of this Committee and your brief has certainly brought out a number of points which differ from the Premier of the Province of Saskatchewan, and from a number of other groups that have appeared before us.

When I look at your brief which we just received tonight, there are things that struck me, like take more time, hold more hearings, urge the First Ministers to go back to the bargaining table, seek out unanimity. Then the statement that “our present BNA Act has served us well for 113 years’’.

These statements evoke a reaction of the type that when we say since 1927 our 53 years has been talked about having our own constitution, having it patriated, having it brought to Canada and to be able to amend it in our own government, I must admit that more actively since World War II, in the past 30 years there have been ongoing discussions and meetings and hearings and commissions looking at the constitution and we have not been able to come up with an acceptable formula to repatriate that constitution, and you yourself said you were not one of the actors in the play and I would suggest, and I would like to see if you agree or have comments to make, on precisely the actors in the play.

As the premiers of different provinces have changed throughout these discussions, the attitudes, the demands, the intent that they brought forward differed, and as we go on, if there are more hearings and these hearings went on and these discussions went on for more years, it would again depend on who the actors are in the play.

Do you not think that that has a great impact on the possibility of having unanimous consent?

Mr. Devine: Certainly I believe it would have an impact on unanimity. What I wanted to request from the members of the Committee is to take their time to make sure they have the confidence of the people of my province and other provinces across this country before they rush into, and I say, “rush” in the sense that this is the first time we have had such action as a unilateral resolution, rush into changing the constitution. In my part of the country something like, I do not know whether we can believe them or not, 70 per cent of the people

[page 127]

do not want to see unilateral action. They are concerned about it and they are good Canadians, but they have reservations about imposing it. It is the big brother sort of concept.

On top of that there are some new twists in it, like a referendum, for example, and we have not discussed that for 50 years, I think the Premier said 50 days or even 50 hours, and it is brand new, and so we say take your time because constitutional change is extremely important to the fabric of a nation and do not treat lightly the feelings of Canadians that say: I am not ready for that process of change. I may be ready for change but they are not really ready for that certain kind of process which is unilateral action.

That is why I say to the Committee: respect those views.

Mr. Bockstael: Well, following up on that idea of unanimous consent, there was the premier of a province at the head of a Conservative government who has taken part in these discussions who said that in his opinion it would be impossible to get unanimous consent, and if I may be presumptious in this suggestion, if you were one of the actors in the play instead of Premier Blakeney, your approach is different than his and possibly to obtain consensus with you would be more difficult than with him because he was getting very close to a consensus with the action that is now being taken.

One of the other things that you mentioned is that you oppose entrenchment of Human Rights, and that is in conflict with a number of delegations who have appeared before us, who said listen to the Canadian people, have them come and express their views; and we have had the majority of delegations come here and say they wanted the entrenchment of human rights.

I was leading through that to the question which Senator Roblin brought up because we are both from Manitoba and we know the problems. You emphasize a great deal of co-operation and trust. I know you are speaking for Saskatchewan when you say: trust us, let us prove what we can do; but does that apply to all of the Premiers of all of the provinces, let us prove to you that we are willing to co-operate? Because the point was made by Premier Roblin that in spite of the fact that the BNA Act had the language rights guaranteed, or the Act of 1870 in Manitoba had language rights of education guaranteed …

Senator Roblin: Not language rights; separate schools.

Mr. Bockstael: Separate schools were guaranteed, and this was usurped and in 1890 it was appealed to the federal Cabinet and nothing was done about it, and it took, what was it, 90 years to correct the situation.

In your suggestion that we should have these things protected by our right to appeal to the federal cabinet, on what basis would the federal Cabinet have the strength to override the provinces if it was not in the constitution?

[page 128]

Mr. Devine: All I am suggesting to the Committee is for them to make sure that they have broad base support. I encourage the Committee to travel across Canada because there are hundreds of people in my province that would like to give you their views on how they feel about a Charter of Rights, and some of them may want to enshrine a Charter and some of them may not want to.

All I am suggesting is that if you do this relatively quickly, with some new ideas and some new twists, people may have the feeling that you are imposing it on them and that may be more divisive and harming in the long run than taking the time, even though it is not perfect today, then getting a broader base of agreement.

I trust not only my fellow neighbours in Saskatchewan, but I trust all Canadians and I think that they have a great deal of faith in this country and they want to see it improved, but I want to make sure that what we are doing today does not cause more harm, as I said about the provinces. Maybe a province originally would not have joined this nation or this Confederation under the federal proposal. Well, if that is the case, let us take the time to go back and say: are Canadians comfortable with it? Are you really listening?

That is all I am asking the Committee, are you confident, you as a member of the Committee, that you have the will of the people across this nation and it will not be more divisive than what we have right now.

Mr. Bockstael: If my memory serves me correctly, the delegation from Saskatchewan emphasized that Saskatchewan was the first province to adopt a Bill of Human Rights?

Mr. Devine: I am fully supportive of human rights.

Mr. Bockstael: Canada is a signatory to the International Covenant of Human Rights of the United Nations and it seems inconsistent, to me anyway, not to want to entrench the Bill of Rights in our constitution when we are signatory to that kind of an agreement and we want Canadians from all provinces to enjoy the same rights whichever province they may be living in.

Mr. Devine: Well, I appreciate your argument, sir. I guess all I am suggesting is that people have been before this Committee many times, and probably much more capable than I am, and talking about the advantages and disadvantages of enshrining rights in the constitution. From the people that I have talked to, and even visiting Americans that I have talked to about it, there are several problems in dealing with the courts all the time when we have dynamic social and economic change all the time among us, and certainly the Premier of Manitoba and the Premier of Saskatchewan can ably argue that.

I support their position and I am not necessarily saying that I am not for rights; I am certainly for Human Rights and I am proud of the heritage within my party of John Diefenbaker and his Bill of Rights, but I am saying there are problems with enshrining those rights in the constitution that have been explained before this Committee time and time again, and

[page 129]

because they are valid do not impose them on the rest of Canada if in fact they are not ready or you run the risk of alienating them and making further divisions within this country that we may not have to if we take more time.

Mr. Bockstael: One last question.

You emphasize that the case had not been made that Canada needs a new constitution. I detect a certain inconsistency, then, or you are accepting that Canada will have a new constitution when you say that the constitution should not be easily changed and that a new formula of equalization should be embodied in the new constitution. So you are for this equalization but not under its present form and I find it difficult to comprehend how it would work if it was applied only to the wealth of the provinces rather than on the method that is being proposed under the Energy Bill?

Mr. Devine: Well, the principle of equalization today is not enshrined in the constitution of Canada. It was designed by people in legislatures and in Parliament to help share more equitably the resource wealth in the country between regions. We can modify that and improve it. Theoretically we can improve anything that man has designed, and I am suggesting we can probably have a more effective one and efficient one, enshrined or not enshrined, here in Canada that would make more effective use of the revenues generated in the have provinces and make sure that they get into the hands of those in the have not provinces, and that does not necessarily mean that we have got to rush into enshrining that principle because it is tough negotiating.

Those are difficult things to design and an equalization formula in Canada is complex.

Mr. Bockstael: Does your brief not suggest that the equalization principle should be embodied in the constitution?

Mr. Devine: I said it could be. Like indirect taxation, it could be enshrined and I do not think it is a matter that would warrant sustained constitutional debate over reform, whether it is enshrined or not. It is functioning now without it being in the constitution.

Mr. Bockstael: Thank you.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Bockstael. The honourable Perrin Beatty.

• 2240

The Joint Chairman (Mr. Joyal): The honourable Perrin Beatty.

Mr. Beatty: Thank you.

I would like to say at the outset that I found your brief to be particularly refreshing. You are one of the few people who have appeared before the Committee who have made mention of the fact of how fortunate we are to be in Canada and how well, in fact, the Canadian constitution has served Canadians for the course of the past century.

[page 130]

The vast majority of briefs we have received, including representations from the government itself, have argued about the failures, the shortcomings inherent in the constitution and about the urgent need for change.

I think you have served not only the Committee, but the people of Canada well by reminding us of the fact that we remain here in Canada one of the most free and prosperous and just societies anywhere in the world. I thank you for that. I would also like to say that many millions of Canadians would probably agree with you when it comes to the question of nation building in choosing the side with Sir John A. Macdonald, Cartier, George Brown and the other fathers of Confederation, instead of Pierre Trudeau and Jean Chrétien and Martin Goldfarb and McLaren advertising. The fathers of Confederation did build well, and we would be discharging our responsibilities well if we sought to build on that foundation which was laid by them, rather than talking about the need to scrap it and replace it with something entirely new.

But I would like to play devil’s advocate for a minute. The argument has been made that constitutional change is essential in Canada because we can see the need for it by looking at the growth of alienation throughout Canada both in Quebec, where it is apparent that large numbers of Quebeckers feel dissatisfied with the way in which things have been in the past, and also in western Canada where statistics are cited of meetings of people who want to split off from the rest of Canada or who want fundamentally to change the relationship between western Canadians and the rest of the country.

Those people would argue, then, that the fact that alienation has grown, particularly in that region of the country is proof of constitutional failure.

How do you answer that allegation?

Mr. Devine: I do not believe that it is a constitutional failure. The constitution may have some impact on it, but it is more a question of whether or not we trust each other.

In dealing with pocketbook issues, people’s lives, whether they could put bread and butter on the table, stay employed and have a job, whether they can pay their taxes or own a home—those are very intimate matters to the average Canadian; and we are in a very dynamic world with a broad Canadian base which runs; over 4,000 square miles, and it is difficult to stay equal all the time.

Those economic, social and cultural changes will be there regardless of what we do with the constitution. As I have mentioned earlier, we could reform the constitution and it would not set the price of oil, nor should it.

It boils down to this. I am saying to this Committee and the people across the country, trust us as Canadians to build and we will trust you to build, given our resources and we can all be much better off.

I think I can give you an example. It is an example of how Saskatchewan people can get frustrated. I was visiting a farmer who was talking to me about his frustration. He is a

[page 131]

man of about 50. Most of his children have moved out of the province, which is not a typical situation.

He said: “I pay the freight rates to get my machinery and stuff from Ontario.” Then he turned round and said, “and I pay the freight rates to get my grain back to Ontario.”

He said, “I pay higher prices here in Saskatchewan than I could just south of the border because of tariffs. I am asked to give my oil away at half price because 1 am a good Canadian. I do it because I am a Canadian”.

Then he says, “I have a drought out here in Manitoba and Saskatchewan and 1 want some help. I do not get feed at half price from Ontario. I get it at the world price plus something.”

Then he said: “This fall I turned around and I am asked to sell my barley below the world price into Ontario, and the Ontario producer can sell it above my price to the world.” Then he said: “On top of that, the federal government says they are going to unilaterally change the constitution and it has the support of Ontario.”

Now, he said, “I do not really trust them! You will have a hard time convincing me that they are on my side!”

Now, this is a man who is still farming at the age of 65 and his sons and daughters have moved to other provinces to make more income because our population has remained virtually the same and he is still stuck there on the farm and he does not see constitutional change as something which is going to solve the very real economic problem.

All I am suggesting to this Committee is do not succumb to the temptation of allowing yourselves to let Canadians believe that constitutional reform will resolve their problems. It can help, but it can also cause more problems if it is done in a fashion which is roughshod and imposed on them than if you take your time and got more or less unanimous, broad support from the rest of Canada.

Mr. Beatty: I think that is an interesting example that you have cited, Mr. Devine. I can say to you as an individual representing a rural Ontario constituency, the perception of people in my constituency is very similar. They believe the country has been very well served by our constitution; they believe there is a need for modernization, but they think it is a matter of taking an old building and updating the plumbing and the hydro rather than tearing the place down and replacing it with a new structure.

May I ask this one final question. If it is your thesis and belief that it is not the constitution which has failed but rather the politicians who have failed the people, if the Prime Minister and the Government of Canada are serious in wanting to address this feeling of western alienation which we have been hearing about in recent days, is there anything in the present constitution which handcuffs or hamstrings the federal government and prevents them from addressing the policies which have led to that alienation, could they act on it tomorrow afternoon if they were serious and prepared to act?

Mr. Devine: I think I have outlined in my brief that I think what we need rather than constitutional change, certainly

[page 132]

hurried constitutional change, is just a change in attitude towards goodwill and trust.

We have a constitution that is well built; if we want to design rules and regulations between governments today, we could do it in the morning, and we do not need constitutional change to do that, either to set a price for energy or to decide offshore resources, wealth sharing or anything else in that regard. The men and women in this country have done it for years.

I can go back and say “We do not need constitutional reform to make it happen.” Constitutional reform may make it easier some day, but the same problems will occur time and time again, because we are living in a dynamic economic social environment and that will not change.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Beatty.

Mr. Tobin, followed by Mr. Fraser. I would like, too, to remind honourable members that it is almost 11:00 p.m. and I know our witnesses are very agreeable to receiving questions, but I do not think we should abuse the situation.

Mr. Tobin.

Mr. Tobin: Thank you very much, Mr. Joint Chairman. I have a couple of questions primarily dealing with the question of human rights and whether or not a Charter of Rights should be entrenched in the constitution.

First of all, I noted when you were talking to Senator Roblin, you said at one point that you were not opposed to enshrining language rights in the constitution. In your brief you make it very clear that you were against entrenching the Charter of Rights in the constitution.

I wonder how you bridge the gap between what I see as a paradox?

Mr. Devine: What I said in my presentation, using it as an example, was that we have dealt with language rights and the French speaking Canadians’ situation in Canada without a change in the constitution.

I used that as an example as to how we dealt with it for some time to strengthen the argument that the constitution has not been all that bad.

Mr. Tobin: You do support enshrining language rights in the constitution. Did you not make that statement?

Mr. Devine: It is not something that I could think would cause us to debate. If it was in there, I would support it.

Mr. Tobin: So you would support enshrining language rights. Now, I would like to remind you that the individual and certainly the organization which was appearing before this Committee representing those people in Saskatchewan most interested in civil liberties and human rights—Mr. Norman, for instance, of the Human Rights commission in Saskatchewan came before this Committee and had a great deal to say, and certainly on the matter of a charter of Human Rights, strongly supported the idea that a Charter of Human Rights be entrenched in the constitution.

[page 133]

But let me refer you to page 12. You say let us not seek to entrench a bill of rights because this is not the Canadian way and it would create more problems than it would solve. Here is the interesting line: you say rights can evolve as concepts change. To me that means rights can evolve as attitudes change, and passing laws do not change attitudes.

My question to you is, are you suggesting that we should wait in some way for discrimination, whether it be for racial or religious reasons, to disappear from the land naturally because of some greater human understanding, then to make it illegal right now constitutionally to discriminate against individuals in this country on the basis of religion or race? Is that what you are suggesting in that line, that rights can evolve and attitudes can change, that we should wait until they change? What do you mean by that?

Mr. Devine: I go back to the individuals representing the Human Rights Commission in Saskatchewan which suggests that we enshrine a charter of Rights. On the other hand, the Premier of Manitoba and the Premier of Saskatchewan say we should not.

Mr. Tobin: I am talking about what you say. What do you mean when you say rights and concepts change as attitudes change? Are you suggesting that we should wait until people become more human and that there is a greater understanding of their fellow man?

Mr. Devine: The problem as I see it is that the courts are not as sensitive to the change in social modification and economic change as you are, as someone in Parliament or a legislator to deal with that—the problems which have resulted in the United States because it is enshrined; maybe we can have a better system than that.

Mr. Tobin: Excuse me, but we are short of time. You talk about the courts. But at the bottom of page 18, you said that entrenchment would mean irregular and many calls upon the court to legislate human rights. The courts are not the vehicle, you say, but the legislatures and Parliaments are.

You are saying that I am better qualified than the courts to protect human rights.

I say to you that it was Parliament and the legislatures, not the courts, that interned the Japanese during World War II. I think that is a striking, shocking and a shameful example and we should not allow that type of thing to happen again. So how do you square that with your position on human rights?

Mr. Devine: Let me say one thing and then I would like to turn it over to my colleague.

I believe in the United States the rights are enshrined in the constitution and there were similar problems with the Japanese.

[page 134]

Mr. Tobin: With one big difference: the Japanese in the United States were released much quicker, four years quicker; their property, their houses—and this is an essential difference, and if you were listening to the delegation who were here representing the Japanese and Asian peoples of this country you would have heard that they pointed that out during their representations, that in the United States—and it does not excuse what happened—but in the United States the Japanese people were released much quicker and their property, lands and wealth were returned to them very quickly, based on the rights enshrined in the United States constitution.

Now, in Canada there was no provision, and it took years, and in many cases people’s property was never returned to them.

I think that is an example we cannot ignore. History tells us that Parliament is not perfect and may not be in the future.

Mr. Devine: That may be true.

Mr. Robert Andrew (MLA, province of Manitoba): The only comment I would make on that with regard to the American situation is that it strikes me that the analogy with the Japanese people in the United States is a good one. If you want to carry the American constitution and what it has done for the American people, it strikes me that perhaps for the first 170 years of that constitution or perhaps even longer, the discrimination against the coloured people was far worse than any discrimination you have ever seen in Canada.

It strikes me that the Canadian people whether through their legislatures or through the people, brought a much more meaningful Human Rights legislation, much more human rights attitude than clearly the Americans do or the American courts have delivered.

And the simple point that he is trying to make is that we somehow get an idea from a lot of people that by enshrining this and allowing the courts to lead the way in human rights, quite frankly I do not accept that.

Mr. Tobin: I just would simply point out that every organization that has been here, while not agreeing with the present proposed charter in many respects, nevertheless, everyone in principle very strongly supported, whether they were representing minorities, special interest groups, civil liberties groups, human rights groups, strongly supported the entrenchment of human rights.

One other question on the whole human rights question.

You said just a few minutes ago that there were problems in enshrining human rights which have already been explained to this Committee.

I want to know what you personally, Dr. Devine, perceive as the problems which are involved in entrenching a charter of rights in the constitution, aside from the fact that you say the constitution as a whole would be divisive?

What are the particular problems that you envisage? You talk about the courts and the package as a whole being

[page 135]

divisive. What can be so wrong with entrenching human rights?

Mr. Devine: I can refer to a couple of examples of the kinds of situations you can get into when you are having it dealt with by the courts as opposed to the legislature. One is strictly economic.

I come back to my previous experience in the realm of anti-trust and anti-combines legislation.

If you were to look at what it takes to be charged or convicted for monopoly practices before the courts—and I see some members of the Committee smiling—you have to be proved to be entirely in control of everything, a perfect monopolist, and you can do everything up to that point as interpreted by the courts, but you are not guilty.

That is the inflexibility of interpreting the law by the courts as opposed to the flexibility and sensitivity that you have as an elected member in dealing with social change.

Now, that principle if it is applied to rights enshrined, would cause me some concern, because people would judge those rights within the law, looking at the letter of the law. They may be right legally, but they may be wrong in a just sense, because they are out of step with the times.

Mr. Tobin: One last question. I thank you very much for your answers thus far. Nearly every provincial government representative, whether from the government or opposition, coming before the Committee in recent months or years, have been talking about granting more wealth to the provinces, the federal taxing less.

In fact, you gave a very good description of your feelings with respect to resource taxes and all the rest of it.

Assuming the federal government were to say “Okay, perhaps we are taxing the provinces too much and perhaps we should leave more of the wealth in the provinces to develop provincial economies.” It would mean that the federal government would have to cut back on some of the services that the federal government now provides. I am thinking about some of the social programs, like old age pensions, for instance, that are available which may or may not be affected.

Let me ask you as a man who could be Premier of Saskatchewan some day, and I ask you seriously what programs would you have the federal government cut back, do away with because we are running a tremendous deficit as you know already, in order to give to all ten provinces a bigger share of the Canadian pie.

Mr. Devine: That is an excellent question and I am glad you asked it. It is a gradual process, you do not tax less, you tax differently and you take the time to create wealth so that in fact you can even tax more if you stop constraining growth. Let me give you an example.

Mr. Tobin: They would have to be immediate cuts while we are waiting for this pot to grow—what immediate cuts would you make?

[page 136]

Mr. Devine: No, you do not have to have—you move in incremental steps and changes in taxation, from taxing resource to taxing wealth, if you will, through income tax. You do not just go bang and stop just like equalization did and just start and stop. You do it in incremental steps but you tax differently to give incentives to all Canadians in every province to create wealth rather than taxing their resource now that keeps them from creating it.

The example I wanted to suggest that again to be benevolent you have to have something to give. The average welfare recipient I believe in the province of Alberta receives something like $10,000. In Saskatchewan they receive something like $7,000 and Saskatchewan is very concerned about people. To be benevolent you have to have the wealth to give. What I am talking about is the change in tax structure over time to allow us to create more in Canada. I often think, just speculation, what would Saskatchewan look like if the Japanese had it for ten years? The resource potential is there and we can build that because we have so much of it here in Canada. It seems to me as an economist it is foolish to be constraining that less than we have to if we can readjust our mechanisms and tax and equalization.

Mr. Tobin: Thank you.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Tobin. I think that the honourable John Fraser, you had a question, and the question is on my list and I would invite that for one question. Mr. Fraser.

Mr. Fraser: I have been very patient, Mr. Chairman, and I would like to ask a couple of question with the indulgence of the Committee. First of all through you Mr. Chairman with the indulgence of Mr. Devine, I can give Mr. Tobin two very specific answers. The tax give-aways and concessions that the Liberal party has given to industry over the last eight to ten years would bring in something like eight to ten billion dollars a year in annual revenue right now. I think those are the figures at least approximately.

The other thing is that if the Liberal government had the guts to tell the Canadian people what the cost of fuel really was they would not be putting out three to four billion dollars in subsidies. That is quite a lot of money—excuse me, Mr. Chairman, I did not interrupt Mr. Tobin and I am sure that he does not mean to interrupt me—I am just saying that it does not involve cutting social programs. That is an utter myth.

I want to come back to a question specifically to you, sir. There has been a lot of discussion, a lot of very foolish discussion in central Canada, by central Canadians and by the federal Liberal party that has said that there is something terribly wrong in Alberta having a heritage fund I would think it is 7 billion dollars and Saskatchewan daring to establish and build a heritage fund of several billion dollars and there has been an unbelievably foolish attitude in central Canada, I say this as a Western Canadian member of Parliament. I have no apologies and I hope everyone is listening, that somehow or

[page 137]

other if only the federal government could get its hands on that money then the problems of financing the federal government would be over with and I just invite you to tell us, given the fact that federal spending is about 60 billion dollars annually right now how long the heritage fund of seven billion dollars in Alberta would last, and you can throw in for good measure I think two billion dollars of Saskatchewan, because it is an answer that central Canadians ought to have rammed down their teeth and the federal Liberal government constantly says that somehow or other if they could get a hold of this money it would solve our problem and we would be able to balance our budget.

Now, as a Westerner I say that is absolute nonsense. The other thing I add is this. It does nothing to enhance the unity of this country to put a tax on Western natural gas unless you are going to put an equal kind of tax on central Canadian resources.

Now you are a Western Canadian and I am a Western Canadian and it is time that somebody told the Liberal members in this Committee just what causes the aggravation and why there is so much dissension in the West. I would invite you to respond.

Mr. Devine: We would need more time, Mr. Chairman. It would not last very long, in respect to the heritage funds that we are trying to create, we have created something like about a billion dollars in Saskatchewan and maybe seven billion in Alberta but as I mentioned Ontario Hydro is valued at 14 billion. If you really want to go after funds, go after some here.

Now, we could remove that in a pot if you will and certainly Saskatchewan has, in investing in things, and Alberta could take their seven billion and buy Calgary Hydro and then it would not be so obvious, or we could buy some more property, but if we do not use that money to reinvest in Saskatchewan into renewable long term economic activities we will be have not-provinces for ever and ever because we will have the land base. Those non-renewable funds are our ace in the hole, and if we loose those we have lost it all.

With respect to the same treatment, the best example or one of the examples I can think of is Canada buys bulk or crude from the Middle East; or Quebec buys it, I believe, for about $35 to $38 a barrel and we subsidize them to the tune of $16.75. Quebec, I believe, uses that bunker crude to make electricity and exports the electricity into the United States at world price. That is the kind of thing that that farmer that I was talking about says, well, I am a good Canadian and I will share but at some point in time you have to stop constraining me because I am not going to be benevolent forever. I have this potential and my children want to stay here and I have this heritage, do not cut me off before I get started.

Mr. Fraser: One last question, Mr. Chairman. Is it not because of those kinds of imbalances in fairness, I listen constantly to the Liberal federal government say the essence of Canada is sharing and to a Westerner it means paying more than world prices for what central Canada produces and getting half of what our non-renewable resources are worth

[page 138]

when they are sold back to central Canada. Is that not one of the reasons why in this constitutional proposal that is in front of us the amending formula becomes so important especially when Section 44 would remove the right of the Senate to stop a constitutional amendment which would be against the interests of a province or a region and especially when you have got  a referendum in which the whole perogative and initiative and choice of timing and wording and the use of the federal funds lies with the federal government; in other words a massive shift of power to the federal government.

Mr. Devine: I suppose to summarize it, people in Western Canada are trusting the federal government less and less daily because of experiences from the past coupled with the budget that came out that attacked our non-renewable resource, and that is how they felt, that they were attacked. Then on top of it, a unilateral move to change the rules, not only of Parliament but of the very foundation of the country and all I am suggesting to the Committee, if they do not want to create more divisiveness in the country, take the time to listen. Listen to Canadians, listen to them all across this country, because their integrity and their trust in this country, their patriotism is there, but it is not beyond being destroyed if you move too quickly. Take the time to listen.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser. The honourable Bryce Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman. Dr. Devine, welcome, from one politician to another. You have given a very political contribution this evening and I accept it. I think we have spent most of our time discussing the problems, real and imaginary, between the federal government and the provincial government under the present constitution. You talk about taxation of resources but you are talking about things that are permissible under the constitution. You are talking perhaps in your opinion a rather fruitful if you like use of federal power that maybe you are feeling but nevertheless problems that the federal government presently has. You are suggesting that the BNA Act has been a good constitution. I have gone up and down this country saying precisely that in your own region, and you know that, and I may incidentally suggest, hopefully politely, that I have no lessons to take from anybody in this place including the witnesses on my patriotism or love of this country and I happen to represent, quite proudly, a riding in central Canada, in Lincoln, in Ontario, where when I go back I defend the West’s point of view because they in turn remind me of the 30s and the 40s when oil was not in short supply and when Alberta was very pleased, at the instance of Mr. Diefenbaker, to take advantage of the pipeline coming in its direction. I hope those days never return, but sharing is very much part of our heritage and I do not like to refer to myself as a central Canadian, I just like to think of myself as a Canadian. I know I do not have too much time, but you have made some very fundamental suggestions and important suggestions about changes to the constitution. You have made an excellent case about how the BNA Act has served this country well, and it has. We are a very rich country and

[page 139]

we are a very free country and we do have the ultimate in freedom.

What we are suggesting with the Bill of Rights is to make certain that people with the same vision as those who provided this wonderful way of life, that somehow these rights which we take for granted are enshrined where they cannot be dissipated by a stroke of a pen. When you talk about taxing wealth, I understand that. The wealth in your province comes from the ground where the wealth from Ontario comes from industry, so it is not a far fetched concept, but one that intrigues me.

You have used the word trust, and I might say too that one of the things that I can understand with the West, being concerned if Mr. Fraser goes home to the West on the weekend and creates the impression that perhaps to his audience and up here in Ottawa he spends all his time in the House of Commons defending the heritage funds of Saskatchewan and Alberta. I hope the fund grows and grows and grows and grows because it is being accumulated by the direct act of your province and you have the full right to do that. If the people of Saskatchewan and Alberta are happy to see the money remain in the heritage fund rather than improve the lot of the underprivileged in Alberta and Saskatchewan, so be it.

Now, you said a lot about trust, and it impressed me. When the Association of Francophones of Saskatchewan were here they made a plea to us as concerned people in your province for certain rights, and quite conceivably you will be the Premier of that province one day, perhaps sooner than later, one never knows, but you have that right. What if any of the recommendations or pleas if you like of this particular group that spoke before this Committee, would you be prepared to implement through good will, through trust, in provincial legislation. I will just read them to you. They recommend a clear and unequivocal recognition of the Canadian duality and of the two founding nations. I mention that one because time does not permit me to get you to expand on your statement that one of the two reasons for rewriting the Canadian constitution, the first was the desire to establish in some immutable fashion the position of French Canada. If we have time you might want to expand on that.

The second thing that that association recommended is the recognition of the responsibility of the provincial and federal governments of insuring equality of status of the francophone communities through appropriate legislation and policy. Third, the recognition of the right of the minority to education in the language of the official minority without regard to the numbers of students and the recognition of the principle of control over and management of francophone schools by francophones. Fourth a more generous and precise definition of

[page 140]

access to federal services in the land of the minority which is something that the federal government must do, and, finally, the recognition of the legal status of the French language in Saskatchewan before the courts and in the legislative assembly as provided for in certain provisions of the Northwest Territories Act.

Now, I appreciate you did not grasp them all, I went a little fast, but what of those provisions would you if elected, or when elected, implement, not through the constitution but through legislation?

Mr. Devine: Obviously I would want to look at them and have time to look at them before I would say I would bring them forth in legislation, any one of the five. What comes to mind immediately when you are talking to me about Saskatchewan is that while I believe all of our citizens here accept duality, the French English nature of this country, that there are so many other national derivatives in Saskatchewan, and I say that to make sure that we do not quickly impose—I can thing of a riding, I do not know whether it is Bob’s or whatever, where they teach German and Ukrainian in school and they want their rights respected. They respect the duality of the French and the English in this country but they say do not move or impose it in a fashion that is going to run roughshod over—I respect it and my children will and so forth, so in terms of education and when we say they want the right to French education regardless of the amount of students, I would say it may be difficult to impose that on the people of Saskatchewan when there may only be one or two people, and yet there are other areas that have 1,500 Ukrainians origin people, and yet that is imposed on them.

Mr. Mackasey: I am only asking for information, does the French language have a special status in Saskatchewan, in your point of view?

Mr. Devine: Yes.

Mr. Mackasey: It does. How does it differ from the other languages you mentioned? How is it reflected in Saskatchewan when you are Premier.

Mr. Devine: Well, I can maybe go back to my personal experience. My children go to French schools and they are growing through the system and becoming perfectly bilingual. My wife is perfectly bilingual or trilingual. And having worked in other parts of Canada, and I have worked in literally every province in the nation and four or five years here in Ottawa, I see French as the dual part of Canada. I mean that is part of my heritage as a Canadian. All I am saying is there are various regions of Canada, local, right down to the towns, in a province like Saskatchewan that has more non …

Mr. Mackasey: Let us take an easy one, then. What about the use of French in the legislature?

[page 141]

Mr. Devine: Perhaps I could let Bob answer that because he is in the legislature.

Mr. Andrew: Well, I am not sure that we would really approach the question any differently than the existing government of Saskatchewan does now and I think from the resolution which calls for “where numbers warrant” in the schools. I think obviously the call has not come into the legislature, there is I think one French speaking member who happens to sit on our side, he does not use the language very much and I really cannot see until such time as the need arises there and I cannot really see it as sort of a burning question in Saskatchewan provincial politics as to whether or not…

Mr. Mackasey: But this particular group did, speaking as representatives for minority groups.

Mr. Andrew: Well, I fully grant that they are and that they are advancing the question of without regard to numbers, and I think primarily that is in the City of Saskatoon. I think the bulk of it, the gravel burgs and these places where they are properly provided with French education, French language.

Mr. Mackasey: Thank you. I am not trying to give you a rough time but we are basically politicians …

Mr. Andrew: Alright.

Mr. Mackasey: And I have got to make that point.

Maybe you would elaborate on the desire to establish in some immutable fashion the position of French Canada within the constitution. You were saying that is one of the two reasons for what we are proposing. What evidence do you have of that or perhaps you would like to expand on that if you did not have the opportunity?

Mr. Devine: Could you repeat the question?

Mr. Mackasey: Your brief on page five says there are really only two reasons for rewriting the constitution. The first is a desire to establish in some immutable fashion the position of French Canada and French Canadians within the Constitution. You say that is the reason for the resolution. Explain to me how you come to that conclusion?

Mr. Devine: Well, what I am suggesting from reviewing the constitutional discussions to date, and from reviewing I suppose the history of what I know from Canada, and watching the process of the referendum in Quebec, that the dignity, and I do not profess to know that much about, or intimately about the feelings of the people in Quebec, but it seems to me they want the dignity of their heritage respected, and if that means enshrining it in the constitution, they want it there, including the language and education and so forth.

Mr. Mackasey: As well as in Saskatchewan, they want it across this country, all the country from one end to the other.

Mr. Devine: All I am talking about, I suppose, is I want to be practical. If I were to suggest, I think it is, from my understanding, that 90 percent of all the French speaking people outside the province of Quebec are either in Ontario or New Brunswick. Now, in those two provinces I could see that it could be more or less easily adopted, but to impose it on

[page 142]

northern Saskatchewan or southeastern Alberta may do more harm than good to the unity of the nation, and I am not saying it would not happen over time, but in a practical sense let us be careful with it and not abuse other Canadians in the process, in the way you handle it.

Mr. Mackasey: I am glad for that explanation because that makes that tense statement a little more acceptable.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Mackasey.

The Honourable Jake Epp for a very short question.

Mr. Epp: Thank you.

Mr. Devine, I would like to get into one area, namely resource management and ownership and taxation. As you know, we have had a celebrated case here and that is an exchange of letters, the mails do occasionally run, an exchange of letters between the Prime Minister and Leader of the New Democrat Party in which the New Democrat Party argue that they have now gained further control over resources or have, because of their right of indirect taxation now granted to the provinces, that in fact they have moved some distance towards the position that the provinces took at the First Ministers’ Conference and especially in 1979.

I would like to ask you what is your perception in terms of the so-called arrangement between the federal government and the New Democratic Party, whether it protects Saskatchewan from cases such as the Syvol case or for that matter, the ownership and the management and control of resources in the province?

Mr. Devine: Well, it would seem to me that the only position or point that is really something that should be recognized in that perhaps agreement or whatever, is indirect taxation, that that certainly would help the provinces in some regard have access or greater access to the creation of wealth in their own particular province. But with respect to the problems, for example, that the Province of Saskatchewan has had in dealing with the federal government, you have to have either man to man agreement, consensus and trust in the jurisdiction between who is going to control interprovincial and export trade, or you cannot even plan what you are going to do in terms of provincial economic development, and that is quite a different matter in itself than simply indirect taxation.

Mr. Epp: Would you, Mr. Devine, that being the case, and you will recognize, I am sure, the exchange was on interprovincial trade, that is indirect taxation on interprovincial trade only, not on international trade, the Cyvol case really related to international trade, that side of it rather than to the interprovincial side, would you accept in terms of natural resources ownership and management the so called 1979 best efforts draft on resources? I do not know whether you are familiar with it, I believe you are, whether the best efforts draft of 1979 would in fact go some distance in the ability to create the wealth you spoke of earlier in order not that the provinces only end being have not, to my way of thinking that is only one goal, but it is equally important to have the ability not to take from the federation but to give to the federation,

[page 143]

and the way I see the 1979 best efforts draft it would go some distance in meeting your conceptual argument, in putting some life in legislative form to it.

Have you given some thought to that and what is your view?

Mr. Devine: I would say yes, that I would agree with it from what I can remember of it and I have to admit that I do not recall all the details of it but, yes, it would go a long way if it could be agreed upon as a mechanism or formula dealing with the resource area.

Mr. Epp: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Epp.

Mr. Irwin.

Mr. Irwin: I have one short question, Mr. Chairman.

First, in response to Mr. Fraser there has never been any indication that the Liberal Government was after the Heritage Fund, I think that is the stated position. There is no lust for the Alberta Heritage Fund.

Mr. Fraser: I just want to point out in answer to that, Mr. Chairman, I do not want to get into a pejorative …

Mr. Irwin: Well, I did not interrupt Mr. Fraser and I do not want…

Mr. Fraser: Well, you have taken a shot and I am just going to reply by saying …

Mr. Irwin: Well, you can reply when I have finished.

Mr. Fraser: Well, just a minute.

The Joint Chairman (Mr. Joyal): If I may ask both gentlemen to address themselves to the Chair it is much easier to make sure that we go on with the debate.

Mr. Irwin made a statement and Mr. Fraser raised a point of order and I received the point of order as raised by Mr. Fraser.

Mr. Fraser, go on with your point of order.

Mr. Fraser: Mr. Chairman, you are so civilized that it washes over on all of us to the very great benefit of this Committee, and I hope to the public.

I just want to respond to Mr. Irwin. I made the allegation that the suggestion is made constantly in federal Liberal quarters that somehow or other the Heritage Fund in Alberta, and the building of the Heritage Fund in Saskatchewan, is something which is somehow wrong and against the national interest.

Now, my friend, Mr. Mackasey, who has had to leave, said no, he would like to see that fund grow, and Mr. Irwin tells me that that is not his point of view. However, I have to also remind the honourable Members on the Liberal side that only a little while ago when the Prime Minister was asked about,

[page 144]

why are you going after the western resources? He said: well, that is where the money is.

There have been enough exchanges in the House of Commons over the last number of months and before to indicate quite clearly that on the Liberal side the attitude generally is that the west is rich, that is not in the interests of the country and somehow or other they should be divested of some of that richness.

Now, that is all I am saying. If the individual members of this committee wish to depart from that position, them I am only too pleased, and all I can say to my friends across the table is that I think at times we westerners have been too patient and too quiet, and occasionally, if we give vent to our feelings of not only frustration but our great sense of what we think is an unfair approach to our resources, all I have to do,

Mr. Chairman, is remind our Liberal friends that they promised during the last election they would not put an export tax on our natural gas resources in British Columbia, the promise was made in writing and it was broken only a number of months later.

Now, I am sure that honourable Members here were not privy to that decision, they probably did not even know the promises were made, but I am just saying, Mr. Chairman, we have grievances and we western members at times have gone out of our way to take the position of national unity and we have not complained, but there are times when we also feel that we have to register our feelings.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Fraser.

I think you have put the question very clearly and I am glad to invite now Mr. Irwin to continue to state his point of view on the subject.

Mr. Irwin: Mr. Chairman, I reiterate that the Liberal Party is not lusting after the Alberta Heritage Fund. Quite clearly. Now, to the witness …

An hon. Member: Not this year.

Mr. Irwin: Not any year.

I have often felt a strong affinity towards Saskatchewan and have expressed it quite clearly at these hearings over the last few months because of the history of Saskatchewan, the first  provincial bill of rights came from Saskatchewan, Mr. Diefenbaker came from Saskatchewan with his Bill of Rights, they were innovators in co ops, Sastel, reforestration, the concept of sharing Saskatchewan is my concept of Canada and that is why I am very surprised that when you come here today opposed to an enshrined Bill of Rights, it does not seem to be in the historical tradition of Saskatchewan.

[page 145]

Now, you have dealt with resources. I might remind you that prior to 1930 or 1931 the resources of Saskatchewan belonged to the federal government, prior to that time. It is not, to quote some of the bands that came here, an aboriginal right that went from time immemorial to the Province of Saskatchewan, it was at one time within the province of Canada and under our jurisdiction, and the only reason you have it is that in 1930 or 1931 it was given to the Province of Saskatchewan.

Now, coming from Sault Ste. Marie, and I notice that you have Mr. Trovich from Sault Ste. Marie who has also moved to Saskatchewan as one of your main political advisors, we feel and are offended by suggestions that we are part of that great nasty group from around the Toronto area. In the North we have the same problem in Saskatchewan, lack of transportation facilities, resource base that is not adding manufacturing jobs, many of the same problems, and when you suggest today that we are part of this eastern complex that is out to get the West, I resent that because I hear it almost regularly.

Now, I want to remind you from 1960 to 1973, or there- abouts, because of the imaginary Ottawa line we paid 25 per cent more for our oil in northern Ontario so that you could have a western market. When the price was 25 per cent less on the world market, we paid more and shared with our money so that you could have a market.

The copper industry was held low domestically because the federal government thought it was wrong to have a high price. We bolstered up the wheat market and gave a higher price to the West because we thought it was fair. Ontario has never received one penny in equalization, even though equalization has been owed to Ontario, it has never been claimed, and we have taxed electrical power in the past.

Now, you say today, you talk direct taxation and indirect taxation, you say leave these resource industries alone. The oil companies, 70 per cent of which are foreign owned, they are all multi-nationals, the big ones, made over a 400 per cent profit increase in the last ten years and 50 per cent last year, and an increase of 50 per cent the year before.

Now, I want to know from you, if we are not to tax the rich, then who should we get our tax from to pay for these programs in Canada, the poor?

Mr. Devine: Well, let me point out that from my experience the responsibility for deciding on profits in the oil industry, the tax level, it rests with the federal government and if you are unhappy with the amount of profits that the oil industry is making, then for heaven’s sake, within your own bailiwick, if you will, tax them more but do not tax Saskatchewan and its resource, take it away from us because you are unsatisfied with the way you are dealing with the oil companies. That is my point, and in heavy oil out of Saskatchewan on an annual

[page 146]

basis you take from us $500 million a year, that comes down as I mentioned to Ontario or Quebec, from our heavy oil.

Now, you are unsatisfied with your ability to tax the oil companies but you take from the province and I do not think that is a just reason to turn around and reduce the economic potential that a province like Saskatchewan has because you think that the oil profits may be too high.

The second thing I guess I find, or my fellow neighbours in Saskatchewan find is that if you are upset with monopoly profits and you do not like to pay, then for heaven’s sake explain to us why you pay those same monopoly profits and windfall gains to Venezuela, Mexico and the Middle East and you will not pay them to fellow Canadians who want to get on with the job of producing energy and increasing the supply.

Mr. Irwin: It was not the decision of the federal government to cut back by 15 per cent, it was the decision of the Province of Alberta.

Mr. Devine: Yes, it was. I have no comment.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Irwin.

I would like to invite now Mr. Hawkes for a short question.

Mr. Hawkes: I was just going to raise a brief point of order and I do not think it will cause any hassle, but we deal sometimes with solitudes of understanding, we heard those words used earlier and Mr. Mackasey made mention of the Alberta Heritage Trust Fund and if the Government of Alberta chooses not to spend that fund on people, then that is its choice. I think it speaks to misunderstanding of what the Alberta Heritage Trust Fund is and what it does and it has a very strong people development flavour in its expenditure patterns and I would invite Mr. Mackasey to perhaps get from the Alberta Heritage Trust Fund its annual report and he might just be better informed about the use to which it is put.

I just wanted to highlight a couple of statements sometime near the end of our discussion with Mr. Devine from Saskatchewan and I found, I think, as someone who was born in the City of Calgary and who has lived most of my life in Western Canada, a great deal of meaning in one sentence that may not have the kind of impact that I think it should have to the Parliament of Canada and to the people that sit on the Committee, and that is on page 28 when Mr. Devine says the Saskatchewan people stand always ready to be partners but never victims in this federal state.

I think what underlies that and has been made clear with several comments over the course of this evening is the growing sense of being victims, and the Canada West Survey and the Gallup poll, the issues of separatism relate to that sense. There is no region of this country that wants to be partner in confederation stronger than the region I come from, but the word “partner” is important and the unilateral nature of the

[page 147]

action which this Committee is participating in is not part of that partnership as we perceive it.

On page 25, Mr. Devine says “most actions of the federal government to date only re-emphasize to western Canadians that the provincial governments are best able to solve their economic, social and developmental problems”, and I go to Mr. Irwin and his interventions recently on oil, simply to say the following:

That is an industry that is currently moving to the Atlantic region, it is new there, but it is an industry that in our region we have lived with for a long time and we understand many things about it that take a long time to explain, and perhaps I can make one statement that oil that is produced, that is ready to go to a refinery, has commodity value in a world market. We talk about that as world price or North American price but it has a commodity value, but it also has in terms of the long range future of this country a replacement cost and it is the replacement cost that is of considerable concern to many of us.

You may be able, and in some wells you can produce a barrel for $2 but you cannot replace oil for $2 and we will not have it if we do not have the personnel to find it and get it for us, and in that climate I suggest to you that in my city, with its familiarity with that industry, we understand clearly that when the Petroleum Administration Act was passed in the House of Commons we set up the following situation over the next four years, that somewhere near 16 per cent of the commodity value will go to provincial governments, somewhere near 24 per cent will go in to that replacement equation, and 60 per cent of that commodity value is being used for federal purposes, and that was done without the consent, it was done unilaterally.

The constitution is unilateral; other small illustrations which were identified by Mr. Devine and of a unilateral nature. When I sat on the Employment Task Force and we travelled in the regions of this country, when you move out of the populous provinces a lot of the manpower programs are viewed as irrelevant because they do not fit the social and economic circumstances of the region, and you risk a great deal if you do not pay attention to Mr. Devine’s statement that we will be partners but we will not be victims.

If there is something in that statement that Mr. Devine or Mr. Andrew disagrees with, I wish they would identify it for the Committee.

Mr. Devine: No, I am comfortable with that.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Hawkes.

I would like to invite Mr. Nystrom to conclude.

Mr. Nystrom: Thank you very much, Mr. Chairman.

[page 148]

I want to again thank Mr. Andrew and Mr. Devine for coming down tonight and just ask Mr. Devine one question about something that is missing in his brief and that is the whole question of the Indians and the constitution, the original people of this country and the constitution, and ask him what his position is on whether or not treaty rights should be enshrined in our constitution and whether or not aboriginal rights should be enshrined in the constitution of Canada?

Mr. Devine: Well, in my mind we have not treated fairly or honoured the agreement that was struck by your great grandfathers and mine with respect to native rights and we have a long way to go to meeting those obligations. Now, whether in fact those rights, and how those rights will be enshrined in the constitution, I would have to say that I would not be in the best position to say how or yes or to what degree because I am not familiar enough in detail with a large number of them to give you a simple yes or no tonight.

I know that there is a considerable amount of work that should be done, it is one of the reasons that I recommended that you in the Committee travel even to reserves across Canada, to listen to the concerns of the native people, and maybe the kinds of rights that they are talking about over time, so that it can be acceptable to them as a nation and as a people, can be enshrined if in fact it will address what they are really after, but I could not say any more about it than that right now.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom.

On behalf of all the honourable members of this Committee  and on behalf of the honourable Senator Hays, our Joint Chairman, I would like to thank you especially for your co-operation and willingness to continue the discussion and exchange.

You will have noticed that even though it is getting late, sometimes the most important interventions come at the end and I was particularly very glad to see that some exchanges between the members on both sides of this Committee sometimes may appear to the public or to our guests to be strong, but they need to be stated because some points need to be clarified and some information needs to be brought to the attention of the Canadian public so that they know exactly what is going on in the different parts of Canada, and that is the purpose of this Committee, to allow that kind of exchange and intervention.

I would like to thank you very much for your help and co-operation in so doing. Thank you very much.

Mr. Devine: Thank you for inviting us.

The Joint Chairman (Mr. Joyal): The meeting is then adjourned to tomorrow morning at 9:30 a.m. when we will

[page 149]

have the opportunity to hear the most Reverend Edward W. Scott, the Primate of the Anglican Church of Canada.

[translation]

The meeting is adjourned.

Other Issues: