Document Information

Date: 1981-01-07
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 33 (7 January 1981).
Other formats: Click here to view the original document (PDF).

[Page 3]

MINUTES OF PROCEEDINGS

WEDNESDAY, JANUARY 7, 1981
(58)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:42 o’clock a.m., the Joint Chairman, Senator Hays, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Allmand, Beatty, Berger, Bockstael, Miss Campbell (South West Nova), Messrs. Crombie, EDP, Hawkes, Henderson, Irwin, Joyal, Mackasey, Manly, McGrath and Nystrom.

Other Members present: Messrs. Fulton and Rose.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. P. Rosen, Researcher.

Witness: Most Reverend Edward W. Scott, Primate, Anglican Church of Canada.

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.)

Most Reverend Edward Scott made a statement and answered questions.

At 12:32 o’cIock p.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING
(59)

The Special Joint Committee on the Constitution of Canada met this day at 3:12 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Allmand, Beatty, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Hawkes, Irwin, Joyal, Mackasey, Manly, McGrath and Nystrom.

Other Member present: Mr. Rose.

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 Ontario Conference of Catholic Bishops: Bishop Alexander Carter, President; Archbishop J. Aurèle Plourde, Vice-President; Father Raymond Durocher, Research Specialist; Father Angus Macdougall, General Secretary and

[Page 4]

Professor Joseph Magnet, Legal Council. From Canadian Life Insurance Association: Mr. P. D. Burns, Director; C. T. P. Galloway; Lise Bacon and T, D. Kent. From Alberta New Democratic Party: Grant Notley, Leader; M. McCreary, Co-Chairman, N.D.P. Constitution Committee; Davis Swan, Chairman, N.D.P. Energy Committee and Garth Stevenson, Professor.

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 the Ontario Conference of Catholic Bishops made statements and answered questions.

The witnesses from Canadian Life Insurance Association made statements and answered questions.

The witnesses from Alberta New Democratic Party made statements and answered questions.

On motion of Mr. Epp, it was ordered,—That the document of the Government of Alberta entitled “Harmony in Diversity: A New Federalism for Canada” be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC—10”.)

On motion of Mr., Corbin, it was ordered,—That the document submitted by the Alberta New Democratic Party entitled “Towards a New Canada: The Moderate Option” be printed as an appendix to this day’s Minutes of Proceedings and Evidence. (See Appendix “CCC-11”.)

At 6:35 o’clock pm., the Committee adjourned to the call of the Chair.

EVENING SITTING
(60)

The Special Joint Committee on the Constitution of Canada met this day at 7:40 o’clock pm., the Joint Chairman, Senator Hays, presiding.

Members of the Committee present:

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

Representing the House of Commons: Messrs. Beatty, Berger, Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Crombie, Epp, Hawkes, Henderson, Irwin, Joyal, Mackasey, Manly and McGrath.

Other Member present: Mr. Friesen.

In attendance: From the Parliamentary Centre: Mr. Peter Dobell, Director. From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.

Witnesses: From Business Council on National Issues: Mr. Peter Gordon, Chairman. From the Social Credit Party of Alberta: Mr. Rod Sykes, Leader.

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 Octo-

[Page 5]

ber 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 witness from the Business Council on National Issues made a statement and answered questions’

The witness from the Social Credit Party of Alberta made a statement and answered questions.

At 10:59 o’clock p.m., the Committee adjourned to the call of the Chair.

[Page 6]

EVIDENCE

(Recorded by Electronic Apparatus)
Wednesday, January 7, 1981

[Text]

The Joint Chairman (Senator Hays): Honourable members, may I call the meeting to order?

This morning we are honoured to have the Most Reverend Edward W. Scott, Primate of the Anglican Church of Canada with us. Most Reverend, if you would care to make your opening remarks and then the members of the Committee. would like to ask you some questions, and if you would not mind introducing your colleagues.

The Most Reverend Edward W. Scott (Primate of the Anglican Church of Canada): Thank you very much, Mr. Chairman.

Mr. Epp: On a point of order.

I apologize to the Primate, but I believe members of the Committee would want to know Mr. John Fraser’s mother passed away last night and for those of us who have been sitting around this table in a spirit of collegiality, I am sure members would want to know of the loss that has befallen our colleague.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp, we will make sure that on behalf of all the honourable members of this Committee the usual condolence will be extended to Mr. Fraser’s family.

Mr. Epp: Thank you very much.

The Joint Chairman (Senator Hays): You may proceed.

Rev. Scott: Honourable Chairman, members of the Committee, I would like first of all to introduce those who are present with me. Archdeacon Harry Hilchey, who is the General Secretary of the General Synod of the Anglican Church of Canada; William Hemmerick who is the Chancellor of the Diocese of Toronto. They are the two sitting with me at the table. I am grateful for their presence. Even though I was asked to appear as an individual, as an expert witness, I have sought the information and advice of people involved in the life of our church.

I am not going to read the brief because I think that you are all capable of doing that, but rather to speak to it in different sections.

When I was contacted and asked to appear as an expert witness, the question I had to ask myself was what kind of expertise could I bring to a discussion of this kind. As I am not a constitutional lawyer, that is not my field of competence. The expertise that I see that I am able to bring is that of a deeply concerned and, I trust. deeply loyal Canadian who is proud to be a member of this country; the expertise of someone who has the opportunity to move around within the country and meet with a wide range of groups of people, who in my past life has visited virtually every part of Canada and met with virtually every kind of group in the life of Canada; the expertise of someone who tries to reflect upon what I see happening in Canada in the light of some basic faith affirmations. and my comments will be made in the light of those affirmations.

[Page 7]

One of the most basic ones is that you and I as human beings are not accidents but creations, that we were made in the image of God, and that our basic human value comes from that affirmation and that we live constantly in the presence of God.

May I ask that we might just open with a moment of silence, in which silence we could hold up before God our concern for the member of this Committee who is suffering bereavement at this time.

Prayer:

Oh God, for as much as without you we are not able to please you, mercifully grant that in this and all things that your spirit may direct and rule our hearts and minds. Amen.

Mr. Chairman, the first point that I would like to make is to express my very deep conviction that it is human beings that have rights and also responsibilities and that these rights and responsibilities arise from the fact that they are made in the image of God and accountable to God, that governments have areas of jurisdiction, that they are set up to regulate the patterns of relationship between people and groups of people and people in groups with the realm of nature, with the created order but they do not have rights in the same sense that human beings have rights, and I think that is a very important factor that we need to recognize.

I would also like to point out that lying behind my approach, is agreement with Arnold Toynbee’s approach to history and that is that civilizations arise and develop and grow insofar as the people represented are able to cope with and respond to the

challenges of the time in which they live, and that civilizations begin to deteriorate when they are no longer able to cope with the new challenges that confront them.

I think we need to be conscious of that reality because I think that is a true analysis of history when we look at questions such as constitutional law and the shaping of constitutions. I would like to place particular emphasis on the importance of constitutional law and I quote the statement of a former Prime Minister made in discussions about the constitution:

If a mistake is made in an ordinary statute, it can be remedied at a subsequent session of Parliament or the Legislature, but a constitutional error may be almost irremediable, and the consequences serious in the extreme.

A fundamental law is indeed fundamental and its examination review must be so treated.

Because I believe so unreservably with the truth of that statement, I have some deep concerns about the process we are now involved in in seeking to develop a constitution for Canada focusing primarily upon patriation.

I am concerned about the process because I believe that if in this process we, in fact, do not involve and secure the commitment of the vast number of Canadian citizens, if they do not feel that we are about something that is as fundamentally important in the whole life of Canada that it involves them, any action we are taking may in fact be more destructive than

[Page 8]

creative. I think it is the right of each citizen to become involved in such a process.

I would suggest also that we need to encourage the fact that it is the responsibility of each citizen to be concerned about the process, and the opportunity that lies before us, I think, is a tremendously important opportunity, one that would enable Canadians to make up that vast mosaic that is Canada to respond and help create a new vision.

We need to be able to create a constitution which captures, to the best of our abilities, Canadians’ collective self-image of the heritage, life and aspirations we share as a nation, and the mere act of patriation will not necessarily achieve that goal.

We can never deal in this world with issues in a vacuum. Here in Canada we cannot deal with constitutional issues in a vacuum. We start with the recognition that the central focus of the Canadian constitution is the British North America Act of 1867. I say the central focus because I do not believe that that constitutes the Canadian constitution. I think that is a misreading of history and I think one of the very severe dangers we face is that people read history with that point of view that the BNA Act constitutes our constitution. The BNA Act was an act of the legislature of Westminster but it was one of a series of acts that related to the growth and development of life in Canada. It stemmed from policies of the British government relating to colonies.

It was preceded by the Royal Proclamation and it was succeeded by a number of revisions and a great deal of correspondence and letters took place from Canada and the British government in relationship to that act and in relationship to things that were not covered by that act so that the constitutional life of Canada cannot be seen as shaped only by the BNA Act although it is admittedly the central focus of our constitution.

What that act did was to assign areas of jurisdiction to the federal government and to provincial governments with the appropriate executive and legislative powers and this was done to provide a way of ordering life and relationships in Canada that would protect the rights of the’ people, that would carry forward the recognized rights that had been part of the British political system prior to the passing of that act that had been assumed to be in existence in Canada.

One clear reason why I believe much wider discussions in constitutional matters are urgently required at this time is because of the evident disagreements between the positions set forth by the Prime Minister and those expressed by the First Ministers of the provinces and here I quote from an article by J. R. Mallory which is found in Encyclopedia Canadiana where he deals with the question of the method of formal revision of the BNA Act. If I can just read the last few lines of that quotation:

In matters affecting the legislative powers of the provinces, the agreement of all provinces is secured before an

[Page 9]

amendment is proceeded with. Such consultation is dictated both by the spirit of the constitution and by considerations of practical common sense but it does not appear that there are any legal requirements either about the form of the consultation or the necessity for it.

Lord Morton, on a little article called Law and Manners, stated his conviction that there are three areas of life: one area that can be dealt with very clearly by law, another area that has to be left to the freedom of individual people but an intermediate area that he called the area of the unenforceable where it is important for people to work together, to communicate together, to discuss together, to work through the compromises together. I think that intermediate area is a fundamentally important one and even though it may not be legally necessary to have consultation and to reach agreement between provinces and the federal government as we proceed to move in the constitution, I think it is a denial of the very spirit of the act and of the focus of the constitution as well as a denial of practical common sense if we do not seek for that. That is why it is my hope and I know the hope of many other concerned Canadians whom I have talked and met in recent months that the Prime Minister and First Ministers would seek again, perhaps with a different approach, to reach a meeting of minds.

Part of that different approach, I would suggest, should be the involvement of many more people in dreaming and reflecting about the kind of nation that they would like Canada to become. I believe that constitutional law should stem from fundamental principles of justice and respect for the worth and dignity of every human being, recognizing the responsibilities that go with the acceptance of those aspects of worth and dignity.

I do not believe that it should be determined by power struggles between different levels of governments over current issues that would need to be resolved and if we tend to develop a constitution in that pattern, what we tend to do is to end up with bargaining around power which is always part of life but we tend to make that far more central than it ought to be and we tend to miss some of the basic principles which should underly the exercise of power by any part of government.

In relation to the question of the entrenchment of human rights, we all know that the Westminster legislative process which produced the BNA Act exists without the entrenchment of basic human rights. There are many in Canada who have problems about that question but I personally have come to support such entrenchment in a Canadian constitution and I do this for four reasons.

One is because, unlike the British system, Canada does have two levels of government, federal and provincial, each with areas of jurisdiction, and that inevitably will bring tensions and strains at various times. An entrenched charter could have the effect of nullifying any federal or provincial legislation to the extent that it contravened the provisions of the charter. In other words, it would protect people from both provincial and federal legislation that might be culling across their basic rights and I think that is important in a country like Canada.

[Page 10]

Another reason why I believe that the entrenchment of basic rights would be important is because the original inhabitants of Canada have a special status and they could be protected by that entrenchment.

And, three, because we recognize two major founding groups which have different cultural and legal backgrounds. We do not always recognize the impact of that upon our life in Canada but, if we recognize that, we will know then that the entrenchment-of certain basic rights that gives them a far greater status than having a Bill of Rights which is just another act of Parliament, provides better protection.

And the fourth reason is because of a number of reasons including that of our immigration policy. Canada has become a mosaic with many differing cultural groups.

Now, the realities that come from those four factors. It is so easy for human rights and their balancing responsibilities to be lost sight of in the power struggles which can take place between different levels of government or in conflicting claims between different groups which together make up the mosaic of Canada and it is the conviction that I have come to, not easily and not one that I held a number of years ago, that there would be real value in having the entrenchment of such rights.

But along with that entrenchment, I think there is the necessity of having an adequate amending formula and I think that amending formula needs to speak to and recognize the basic rights of people and not just be something that relates to power struggles.

In a country, in a world that is changing constantly and rapidly, such amending formula becomes increasingly important because it may be, with new developments, that something which at one stage of our history could best be dealt with by the federal government might at another stage be better dealt with by provincial governments and vice versa and unless we have some flexibility to work at areas of jurisdiction and amending the constitution to alter areas of jurisdiction and executive legislative power I think we limit our ability to respond to the challenges of the rapidly changing world in which we live and so an amending formula, I think, is basic at this point:

I think an amending formula is also basic if we had the entrenchment of human rights and it would mean to be different aspects of amendments in that area. But I think we also do need to be able to have some way of amending those because our concepts and understanding of human rights developed as our understanding of God and the nature of human beings, the nature of the world we live in and in the interaction of those three develops.

It is very easy to have something which ties us so totally to the past that we cannot move in the new situations; so an amending formula is vitally important and I do not think we

[Page 11]

have yet given enough thought to some of the aspects that need to be involved in that amending formula.

I would like then to go on to say some words about my concern about the native people and the constitution.

I believe that the proposed constitution is lacking in its failure to recognize clearly that the aboriginal peoples of Canada do have a special status. That special status has never been clearly and definitely defined and it is not my intention to try to define it. I think that it will come to be defined largely by responsible negotiations, but the reality of the present status I do not believe can be denied.

When one looks into the historical development of Canada. I think it can be discovered and proven pretty substantially that one of the differences between the approaches to Canada, between the French and the English was around the recognition of aboriginal rights and the British colonial policy did recognize those rights but the French had not to the same extent and that may be part of the tensions, we have different cultures and backgrounds involved. but I think that the Royal Proclamation of 1763, that the British colonial policy in general and the BNA Act when it included Section 91.24 all recognized certain basic aboriginal rights and assigned to the federal government the responsibility of entering into agreements with native peoples as the original inhabitants of territories now viewed as part of Canada.

These aboriginal rights pertain to more than land although land claims are certainly an important issue. In my understanding, they mean that the native peoples of Canada should be the subjects of their own history and not the objects of paternalistic policies and actions.

We have had many, many decades of the native peoples being the objects of paternalistic actions by both church and governments and other bodies, and the real crucial issue that lies behind aboriginal rights is the recognition of the rights of human beings of a particular cultural pattern to be the subjects of their own history and to share in the shaping of the decisions that affect their life and their future, and we have never adequately provided for them to be the subjects of their history. We have done token acts in relationship to this.

We have developed policies that they then have to respond to. We have never sat down with them and done the difficult hard task of trying to understand the basic values that arise out of their cultural, to give meaning to their own existence and to see what contributions those could make to our understanding of life and living and share with them some of our basic understandings.

And because I believe the aboriginal peoples have certain basic aboriginal rights, I think there is a basic responsibility that they be involved in the shaping of a new constitution. I contend that it is a matter of justice that native peoples should have full opportunity to participate in decision making relating to patriation and that they should give full consent to it. In so far as this is clearly not the situation now, I strongly urge a delay in the patriation process to allow for responsible participation of native peoples.

[Page 12]

And here I do not want to try and set forth the position of the native peoples. What I am calling for is their right to set forth their position, to be listened to responsibly. They have the capacity, as the members of this group already know. to set forth their position articulately and clearly as a basis of discussion and negotiation but that basis of discussion and negotiation needs to be a responsible one and so often, in the past, I feel it has not been.

Now, if there are adequate reasons why such a delay cannot be granted, then there should be specific entrenchment of the rights recognized by the British Crown. together with guarantees that the federal government will negotiate in good faith with the aboriginal people. And I would suggest a possible way by which this might be achieved.

When we are referring to the need for wider discussion about the constitutional question and the wider discussion by a greater number of people, and I find more and more people beginning to be interested and taking part in that discussion, I contend that we need wider discussion on a number of essential questions.

The first one is: how can we affirm and protect basic human rights while at the same time emphasizing the responsibilities that are linked with each right. We have never looked very much at that question. I was intrigued members of the Committee, that in the German Constitution, that of the Federal Republic of Germany, they start off with a statement:

Conscious of the responsibility before God and man.

They focus on the aspect of responsibility equally with the aspect of rights and I think we have failed to do that adequately in Canada. We need to affirm protect basic human rights while at the same time emphasizing the responsibilities that are linked with each right. Unless we do that, we will not be moving to develop a strong and healthy Canada.

If I could make a second point, what particular right should be entrenched? I think we all recognize that people who equally believe deeply in the place of human rights may differ about the pattern of entrenchment. I have set forth my view that I have come to the conviction that it would be valuable to have certain basic rights entrenched but, if we were going to do that, what rights should be entrenched?

I know you have received many briefs asking for more and more entrenchment. I would get very nervous if we tried to entrench too many things because then I think we lose the flexibility that is necessary. An amending formula needs to provide for both stability and also flexibility and if you entrench too many things you lose your capacity to move, and I think our neighbors to the south face something of the problem in that area.

But if we are going to entrench certain rights, how do we avoid the danger of creating a sort of abuse of first-class and

[Page 13]

second-class rights, which I think all of us would want to avoid?

Three: What form should the amending formula take so as to provide for both stability and flexibility? I do not think the present amending formula has looked deeply enough into that question. It is an amending formula that deals with the realities of power as exercised by provinces and the federal government and that is a reality, but there is basic concerns about amendment that are deeper than just the exercise of power in the immediate situation, and, I think, that is not given sufficient attention in that particular amending formula.

I am not a constitutional lawyer. I do not claim the ability to write a formula that is adequate but I am suggesting there needs to be more work done on that particular section.

And the fourth question is how can we fulfill our basic obligation to the aboriginal peoples with justice?

Law and order, of themselves, can be either creative or destructive. You can structure injustice into law and order or you can develop law and order in the service of justice. My contention is that the British tradition and the tradition is that is part of this country is that we want to structure law and order in the service of justice and we need to look at that question in relationship to the aboriginal people and how we can fulfill our obligation to them with justice.

But these are specific areas of concern. I think there are some other areas that need to be reflected upon that cannot be set forth quite as clearly as that to get at some of the principles underlying the place and operation of government.

I have said earlier that it is my conviction that people have rights and responsibilities and that governments have jurisdiction and the authority and responsibility to use legislative and executive action.

The purpose of the legislative process and the enactment of law should be the safeguarding of human rights and the regulation of relationships between persons and groups in a way that affirms both individual and corporate good. This means that government will continually have to deal with claims based upon rights that come in conflict in a country with many minority groups.

Great wisdom and sensitivity are required in dealing with such conflicting claims. I contend in this area that there are certain basic moral principles that should be operative in dealing with claims in conflict, and I believe that David Hollenbach, a Roman Catholic theologian. has reflected very deeply on the whole area of human rights dealing with claims in conflict. He has drawn forth from the biblical record, which

[Page 14]

is the version on which I stand. three strategic moral priorities that I think should be involved in this process.

These priorities are that the needs of the poor take priority over the wants of the rich; that needs take priority over wants, and that stems from a basic belief in the value of each human being.

Secondly, that the freedom of the dominated takes priority over the liberty of the powerful. To be a responsible human being, to be a subject of one’s own history, one has to be able to share in the decisions that affect your life. If you are not allowed to have the freedom to share in those decisions, then I think that concern takes priority over the existing liberty of the powerful.

A third principle: that the participation of marginalized groups takes priority over the preservation of an order that excludes them, that you never have a right to justify an existing order that denies the participation of marginalized groups when changes in that order can be made to enable such participation. Again, this basic moral priority arises out of the basic view of the rights of people and the responsibilities of people because the responsibility of sharing in the decisions that affect your life is equally as important as the right to share in it, because if you are going to share in the decisions that affect your life that involves with it a responsibility to be concerned about how that action affects other people. And it is that kind of responsibility and right that makes us truly human beings.

These principles are not policies. They are normative ethical standards, not programs, but they are principles which I believe should play a vital part and influencing the decisions of governments as well as those of individuals when called upon to deal with claims in conflict.

Dear members of the Committee, can I ask this kind of question: how much have we tried to get Canadians to dream of what kind of a country Canada would be if these moral priorities became part of the focus, of the way in which governments deal with claims in conflict?

What kind of a difference would this make for the country in which we live?

It is this kind of visioning about the country that I think is one of the essential aspects of the whole question of thought about constitutional change.

And so, in conclusion, it is my earnest hope that what we have embarked upon in this constitutional examination and what was intended when this Committee was appointed was not the way of finding means of imposing a constitutional package by unilateral action in the face of reluctance. If that was the only reason for the appointment of this Committee, I think that would be a tragedy for Canada. I do not believe that was the only reason for its appointment. I do not believe that is why you, as individual members, agreed to serve on this Committee because I believe you made that decision as individuals as well as members of particular parties.

[Page 15]

I see this as a unique opportunity to involve individuals and groups in every part of Canada in a process that can lead to a new vision of what Canada is and what Canada can become, a vision that will shape a constitution which will help to make Canada a nation in which aboriginal peoples, descendants of the founding peoples and immigrants from virtually every part of the world may live in freedom and dignity, in which they will participate with deeper commitment and greater loyalty. In this process, this Committee is playing and will continue to play a very difficult but a very important role.

I have some slight sense of the difficulties that you face. I know that there have been far more groups wanting to appear before you and make presentations than you can hear. I know that because this came on fairly short notice, there has been a great deal of duplication in the kind of presentations.

The tediousness of having to listen through that, the issue of having to come in at a particular point in a legislative process that is very far advanced and then bring back recommendations to government, that poses tremendous difficulties upon each of you as individuals and each of you as members of your own parties. I recognize something of that but I think that the issue that we are confronted with is such a vital one that it imposes upon you very great responsibility in terms of the vision and hopes for Canada rather than just the unilateral legislative action.

As you carry out those duties, I can say to you that as I move around in various parts of this country, I find that you and the work that you are seeking to do are being upheld by the prayers of an increasing number of deeply concerned Canadian people, that you are not working alone in isolation without other people concerned about both your difficulties and your responsibilities, and I think that needs very much to be recognized.

Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you very much Most Reverend Edward Scott.

I might, before we have the questioners, indicate that I promised Most Reverend Scott that we would have him out of here at 12 o’clock and we have many speakers. So, as we say on the ranch, we will be riding with a fairly tight rein. Mr. Epp.

Mr. Epp: Mr. Chairman. just before you recognize the first questioner, I would like to make two points. One, apart from the expert witness this morning, but that I think is a criteria that should prevail with all the expert witnesses, as you know, Mr. Chairman, this Party did not feel it was the best method by which we would approach the appointment of expert witnesses or the calling of expert witnesses on a partisan basis but rather that we would call expert witnesses on the basis of their contribution. We still hold to that position and we do not think that an expert witness, or anyone for that matter, should first of all have to put on a team sweater before they appear here.

[Page 16]

That being the case, that is the approach that we will take with all the expert witnesses who have been called to this table.

Secondly, I think it would be appropriate as well that if that is the criteria, the guideline by which all will operate, while the most reverend Scott has been here on the invitation of or by the nomination of a political party, that it is important that we allow that the people who have extended that invitation the first night of questioning, and it would be my suggestion, Mr. Chairman, that in the case of today that the NDP Party be given the first right of questioning so they can establish the position that they might want to establish and that those that were nominated by the Liberal Party, when that event takes place, we use the same procedure as well as for this Party. I hope that is a process which commends itself to all members.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Epp. It is a point well taken.

I now call on Mr. Manley.

Rev. Scott: Mr. Chairman, may I make a comment at this point?

The Joint Chairman (Senator Hays): Yes.

Rev. Scott: When I was asked to appear as an expert witness, I clarified very carefully whether I was going to be asked to appear as a representative of a particular party and I was assured no. It was on that basis that I accepted the invitation, and I would like to make that very clear for the record.

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

Your presentation indicated that as well, most reverend Scott.

Mr. Nystrom: On a point of order as well, Mr. Chairman.

I would like to confirm what most reverend Scott has said and to say that we have suggested his name to the steering committee or the traffic committee precisely on the basis of his contribution here, not because he would be carrying a political team sweater of any sort but because of his contribution. It is his background in native rights in particular that interested our party in having him come as one of the witnesses to be invited by the Committee and I think this Committee knows that each of the parties here could submit names. We could submit one name, the Liberals two names and the Conservatives, two names as well and then the Committee itself would issue an invitation to these five expert witnesses.

Most reverend Edward Scott is here this morning because of the fact that his name was submitted by some of the participants here, it was submitted because of the fact that he can make a contribution with his considerable expertise to help this Committee and, I am sure, help the people of this country.

May I be allowed to suggest that we will lead off this morning with Jim Manley who is our critic on Indian affairs and who has considerable experience in the area.

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

Mr. Manly.

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

[Page 17]

I would like to welcome Archbishop Scott to the Committee and to thank him for his remarks.

As you pointed out, yourself you are not here as an expert in constitutional law, from a legal point of view, but we would see you as a person who has been very much to the fore in the struggle for human rights and I think that when we come down to it, this is what a constitution is all about, as you point out.

In Canada today, the question of human rights, I think, comes to the fore especially when we think of Canada’s original peoples, the Indians, the Inuits, the Métis people and on Monday night some of the Indian people from Ontario described the early relationship between Indian people and the English as a covenant relationship and they referred to the wampum belt or the covenant belt as the symbol of this and for them it had something of the status of a constitution and they described how this relationship has progressed from being originally a political alliance and a military alliance and then the Europeans, the English gradually took on a protective status towards the Indian people so that the Indian people came under an aspect of wardship. I think that many of the Indian groups and other native groups that have appeared before us have pointed out how this relationship has degenerated to a relationship of dependency and welfare dependency, and they want to see something different.

You have recognized very clearly that the Indian people and others, Inuit and Métis, have some basic rights, aboriginal rights, and you said that you do not want to define these accurately but I am wondering if you could indicate the direction in which you think the relations between the nation of Canada and Canada’s first people should be going.

Rev. Scott: In response to that question, I am deeply convinced that the relationship between native peoples and Canada should involve the reflection on possible ways of development that reflects some of the insights of the culture of the native peoples themselves. That is what gives them their essence and dignity as human beings. That was what was involved in the early history in Canada. We need to recognize that Canada would never have become settled if it had not been for the fact that the first settlers were received with friendliness and they were treated extremely well by the native peoples.

The tensions and developments took place largely because they became involved in the wars that the settlers brought with them and the French-English wars in Manitoba and the struggle between those who wanted an agricultural country and those who wanted the country kept open for the fur trade. Many of the struggles we are involved in stem from the Indian people being drawn by alliances until the struggles of the white people’s situation here.

In the earlier stages, we depended upon them for the ability to settle and survive in this land but once the white people had come here and gained those skills, they were no longer dependent on the Indian people and they could build their culture separate from the Indian people and the real tension and the bloodshed began to take place when it became clear to the Indian people who had been willing to share a land that they

[Page 18]

had used with white people, that instead of sharing land all that land was in fact being taken over and removed from them.

By that time, they had become a minority in terms of the number of population and also very much weaker in terms of power, and you get the power struggles that are involved in that situation.

The development of the pattern of reserves was seen by many people at that time as a base of providing some security for them, not to have them totally destroyed. But it was recognized that there should be agreements made with them. Now. the reality is that there have been many parts of Canada simply occupied, in fact, by the influence of the white people without any agreements being made, and this is one of the grounds where I think they have very justifiable criticisms. The need for the settlement of land claims is fundamentally important in that kind of situation so that they know where they stand and so that we know were we stand in that situation.

But in that settlement, what we need to look at is the whole question of: are we imposing upon them a way of life that is unnecessary to impose? Do we have to have in Canada a uniform pattern where everybody has to live in exactly the same way, or can we have within the context of a Canada a mosaic where you would have patterns of life shaped in different ways?

We, in fact, in many ways, encourage that in terms of new immigrants who come to our country. There are certain basic things that should be recognized but there is a wide range of possible freedoms. I think we need to be negotiating with the Indian people and discussing with them their understanding of aboriginal rights, our understanding from British law of aboriginal rights and the eventual pattern, I think, should be working through between that, in that kind of responsible involvement and discussion, and that means a willingness to listen.

Now, I think it is very difficult for people trained in the British system and, without being offensive, I think it may be particularly difficult for lawyers trained in the system of British law to reflect with people who understand and reflect on things not in a legal way but out of a pattern of their own laws and customs and cultures. The reason why we have the phrase “the white man’s law” is because you have laws that arose out of a particular culture and became framed in a certain way imposed upon people who had laws of their own that had arisen up in another situation and perhaps expressed in a different way.

But instead of discussing the interaction of those kind of laws, what things might be done in that kind of situation, then you had to buy power and a position pattern.

I think one of the aspects of aboriginal rights is the right of people to present suggestions of dealing with the questions that arise out of their own cultural heritage and I think one of the obligations of us, as Canadians, is to listen carefully to what is being said and not turn it off before we hurt.

One very important thing that you have pointed out is that there is a need for some kind of consensus and you pointed to

[Page 19]

the relationship between the federal government and the provincial government, that already this is a source of major tension in this process that we are engaged in and, yet, as we hear Indian groups coming before this Committee, they point to the provinces as a major source of their grievances and I think that all of the provinces fail to recognize the rights of Indian people as you would recognize them and as I think some members of this Committee have been forced to recognize them over the last month,

I would like to ask you the very difficult question: what advice could you give to this Committee? Where does our responsibility lie as we deal with the question of Indian rights vis-a-vis the rights of the provinces and the claims of Indians vis-a-vis the claims of the provinces.

Rev. Scott: I think this is one of the areas that the BNA Act at least was very clear about and it is that the basic responsibility was given to the federal government in relationship to native peoples and to lands relating to Indian peoples. Now, those areas of lands relating to Indian peoples as specified in the BNA Act were never, to my knowledge, ever seen to be just the reserve areas; there were areas of Canada that the native peoples had used for centuries and around which there need to be some settlements by us made.

One of the tragedies, one of the difficulties of this Commission, one of the difficulties of the Canadian government at this time is that we now live in the face of a period of nearly 70 years of out-of-sight, out-of-mind between the white people and the native peoples when situations should have been dealt with and were not dealt with and because that was not done, we have a very complex pattern to work with now. I think the federal government has a basic responsibility under the BNA Act, Section 91.24, to give initiative in trying to get some real discussion with the provincial governments and with the native peoples around the question of aboriginal rights because the basic responsibility is assigned to the federal government.

This is clearly one of the fears of the native peoples in the presentations that are being made, one of the reasons why they were not protected in any action that has taken place is the special status that they have that there is a basic responsibility of the government of Canada for them in the relationships with them, so that they have some security.

It is all too easy and it has happened all too often where crown corporations or provinces have moved into and influenced reserve land.

Technically speaking, it is the responsibility of the federal government to protect that. No use of reserve land technically is legal without an Order-in-Council of the federal Cabinet, but there is time and time again cases where that has been ignored or infringed upon and at this point I think the federal government has been negligent, not this particular government but during a whole period of government, in adequately protecting and carrying through the responsibility given by the BNA Act.

[Page 20]

Mr. Manly: The Prime Minister has promised that this would be the first item on the agenda after patriation. Now, do you feel that this is a satisfactory approach or do you feel that there has to be entrenchment before patriation?

Rev. Scott: Mr. Chairman and members of the Commission, one of the saddest situations that I have had to be exposed to over 40 years of work with Indian people has been the inconsistency of government policy in relationship to native peoples. Inconsistency, not as between one elected government and another but inconsistency even when you appoint a new Minister of Indian and Northern Affairs, and I have been involved in discussions with ministers about certain situations and points of agreement almost being reached and that minister being changed and the next minister not carrying forward the policies that were made.

Time and time again, there are instances of this situation. There have been studies of the way in which governments have not been consistent in the protection of Indian rights. Why should the Indian people have confidence that that will begin to happen now if something is not done to make sure that there is some grounds for that confidence?

We live with our history. You know, we are not punished for our sins, we are punished by them, and if we develop a pattern of mistrust between people because we are not consistent, because we are not honest, because we are not dependable, there are certain results that follow from that to destroy trust.

One of the major problems we have in the country of Canada is to rebuild trust with the aboriginal people, and that is not going to be an easy task. I share with them their concerns in trying to make sure that there is adequate protection given that there will be serious dialogue and seriously developing with the aspects of aboriginal rights, trying to define them, discover what they mean and give just expression to them, and they want some assurance that will be happening before they easily agree with patriation.

Mr. Manly: One final question, if I might, Mr. Chairman. How do you think that native people should participate then in the patriation process since you feel that the present participation has been very inadequate? What process do you think would be more fair?

Rev. Scott: I think what would be very useful, and this means revising the pattern of approach at the present time pretty drastically, that is the whole question of the possibility of some joint reflections of the kind of Canada that might come into existence rather than just assuming that by patriation we continue what we have and make some adjustments to it. I think that the kind of Canada that might come into existence would hopefully carry with it very much of the best in the traditions which I am very proud of and to which I am loyal, but I do not think it is a static thing. I think there needs to be some basic reflection about that kind of situation before people have to respond to an act that has been almost totally worked out, to which they then react to. They have to be

[Page 21]

involved in the process of the thinking of the things they want that act to give expression to, and I don’t think there has been enough of that on the part of Indian people or of ordinary citizens within Canada.

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

The Honourable David Crombie.

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

Allow me, if you would, Mr. Chairman, to welcome Archbishop Scott and his distinguished deputation this morning and if I migh also thank the Archbishop for inviting us to some contemplation and prayer this morning. Someone once said not too long ago that if we did a lot more praying and a lot less preaching, this country would be better off. So, thank you for that.

I was also impressed, as my colleague was, with your comments with respect to aboriginal and native people but I would like to turn your attention, if you would not mind, to some other aspects of your brief, in particular two areas, one dealing with the unilateral nature of the Government’s proposal and, secondly, dealing also with the general nature of human and citizen rights in this country.

First of all, dealing with the unilateral nature of the legislation, you, as part of a group, The Canadian Connection, wrote a letter to this Committee on November the 18th at that time requesting an extension of time so that the Committee can hear other Canadians.

Yesterday, we met with The Canadian Connection and on page 5 of their brief they had this to say about the unilateral nature of the Government’s constitutional proposal. I am going to read one sentence from it and ask you if you would like to elaborate on it and whether or not you agree with it. The sentence says:

The Canadian Connection, after a long and serious discussion and after having considered the various alternative models, has reached the conclusion that this Committee (the constitutional Committee) should recommend to Parliament that the process which is aimed at amending the British North America Act should be abandoned in its entirety and. in its stead, a process which encourages each and every Canadian to participate and help to develop an all-Canadian constitution must be found.

Is that your view, Sir?

Rev. Scott: Perhaps I can word it in a slightly different way, Mr. Crombie. I am convinced that we need to have a way in which more and more Canadians can be involved in the process. If that can be done within the context of what is taking place now, all right. If that cannot be done within that context, then I think we need a different approach.

Mr. Crombie: I don’t wish to press you, Sir, but it is precisely that question that needs to be answered as to whether or not the context which we now have is adequate for that participation.

[Page 22]

This Committee. as you are probably aware, finishes its hearings this week, that is to say no more Canadians will be heard by this Committee, we will then be into a cIause-by-clause discussion until February 6th and then we will report to Parliament.

In your view, is that adequate participation by Canadians for this constitutional proposal?

Rev. Scott: No.

Mr. Crombie: It is not. Then I take it, and I want to be clear, if I could, Sir, that you are not opposed to the unilateral action of the government.

Rev. Scott: Yes.

Mr. Crombie: Thank you.

As you are probably aware, Sir, that is a position which a good number of us support, but there are some who feel that there has been enough discussion over what they call the 53-year period. None of us were aware that we were involved in that 53-year period but, apparently, it has been a 53-year delay.

In fact, they more pointedly suggest that we have an obligation to a number of Canadians, in particular Canadians from the province of Quebec following the referendum, that a further delay would be unsettling and unnecessary and, indeed, unfair to a number of Canadians and in particular, Quebeckers. I wondered what you thought of that argument?

Rev. Scott: It seems to me, from my experience, that when you are very closely involved in something for a period of time and work very deeply with it, you are very conscious of it being there and there may have been some people that for 50 years have been very closely involved in the constitutional process and they have worked with it and feel that it has been a constant process.

My experience, as a citizen of Canada, that has certainly not been an open process to which Canadians felt exposed to over a 53 year period.

The second question is: what is the context among which we approach the constitutional question. That is why I made some of those representations I made. I think that if we are asking people simply to respond to an act that will consolidate a situation without some Visioning of what kind of a country we want to have and to be, that is not the satisfactory kind of process to develop a constitution that will make for the kind of Canada that I believe and hope can come into existence.

I think we need a different kind of approach, in that kind of pattern.

Mr. Crombie: Thank you.

Rev. Scott: If I can respond in relation to the French people, for example, further. It seems to me interesting that the French people have basic concerns and I recognize their right and share many of their concerns but I am not sure that I see them pushing immediately for a very quick act of patriation.

[Page 23]

I think they need to have a sense that they are involved in dreaming about the kind of Canada that could come into existence, their place in it, a little bit more than what is involved in just in the act of patriation, as suggested.

Mr. Crombie: Thank you very much.

Both The Canadian Connection and yourself in your brief this morning have implied that there are alternatives for achieving constitutional change in this country. One of those alternatives which have been suggested has been the establishment of a constitutional convention which would allow a broader participation by Canadians for this group than as individuals.

Another form has been the reconvening, they suggested the reconvening of a First Ministers’ conference. I wonder if you had any thoughts on either or both of those two alternatives.

Rev. Scott: I am not enough of an expert in the best processes to pose in that field. I have some feelings that I can express but they are not based on basic expert knowledge in that field.

I think the advantage of a constitutional conference would get a wider cross section, have individual people more free to participate.

I think that it is not always best to have constitutions devised primarily by the people who personally hold the power within the structure. The people have to look at that. That is why I raise some of the questions that I did in terms of some of the moral priorities that are involved here because all of us, it” we were only to recognize this that when you are in a position, you inevitably have some sense of wanting to maintain the aspects of that position. You may be critical of it but there are certain positive things that you will have discovered there that you want to maintain but it may be that your perceptions of why those things should be maintained are inadquate in terms of the overall needs of the country as a whole and a constitutional convention would allow some interplay of people who are not part of the structure to have more input.

Secondly, if there was another First Ministers’ conference, I would hope it could be widened by a fair amount and have other people, other than the people that is representing the governments involved in that situation.

So, if we do try to seek to get a meeting of mind of First Ministers, and I would suggest that from, If I use analogy, from the Church point of view, we talk about the laity, deacons, priests and bishops but there is the sense in which the Bishop is supposed to represent all of those. You do not cease to be a servant because you are elected a Bishop.

I would see that one of the responsibilities of the First Ministers is to have really reflected a depth with the members of their province about the situation to want a lot of input on that kind of situation before that event takes place.

I do not think there has been enough provision for that within the various provinces to make another meeting adequate in itself to meet the needs that I think need to be met for the best possible constitution.

[Page 24]

Mr. Crombie: Your Grace. I think one of the most eloquent aspects of your brief this morning dealt with the question of rights, human rights, and I think that you pointed rightly when you indicated that people have rights and governments have jurisdictions.

Very much of the debate so far has been over which governments have which powers, one, and, two, which rights ought to be imposed on people.

One of the aspects that bothers some people about the proposals on rights as one who shares my own view that there ought to be a charter of rights entrenched in the constitution, one of the aspects that bothers some of us is that there is the feeling, and I wonder if you agree, the feeling that the rights Canadians will enjoy in the future come from their government, there seems to be the aspects in the government’s proposals that rights do not belong to people, that they come from governments to people and that, secondly, there is a striking aspect that most petitions of rights or bills of rights or charters of rights deals with limitations imposed upon governments not to overrun people’s rights, that there seems to be no limitation on the government’s right in relation to people.

I wonder if those were your feelings and, if so, did you have any further thoughts you would like to offer the Committee on them.

Rev. Scott: Yes, I would share those feelings. I indicated that I do not believe we should try to entrench too many rights. There should be basic things that are there.

So, I think they need to be entrenched in a much more secure way than the present suggestions regulate because if you look carefully at the provisions there, the government can really legislate itself around every one of the rights that is almost entrenched there. Then, the right flows from the government rather than the right being inherent in persons.

I think it is the right being inherent in persons that I have tried to emphasize because I think that our rights arise from the fact that we are made in the image of God and that the government is the servant of the people.

Now, I think the government needs to have the jurisdiction and the responsibility and to have ways of settling claims between conflicting rights and that needs to be safeguarded in the situation.

So I think we have to look at those two aspects of the situation but I think there needs to be, in the section on rights, that which limits the power of government. I do not believe the power of government ever should be absolute.

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

Mr. Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman.

Welcome. I think the last time we met we were busy roasting a very famous Canadian politician. I had no idea then that you were an NDPer, I thought you were a Liberal and I still support that.

[Page 25]

I want to say that I appreciate your brief and I think it is a very perceptive one. You are perhaps the very first person to remind us that we are a federal system and not a unitarian system and that the adversary concept therefore is very inherent in our situation and I think that the constitution is a very good example of impulse that inevitably results in all systems based on the adversary principle.

Industrial relations is a good example, where, of course, you have arbitration. I think, sir, what we have come to here is an impasse. The government is trying to break that impasse. I think its frustration probably stems from the failure of the last provincial/federal conference in September, when, as you know, the government recognizing as you have the need to enshrine human rights in the constitution, isolated those rights from the bargaining process in the hope that there would be uniform recognition on the part of everybody concerned, including the Premiers, that there are some things that are not bargainable, Hollenback makes that point that you have made so very eloquently, that the reason why your profession maybe more than ours is to better the life of all citizens. ln somewhat the same spirit, we want to see human rights entrenched and I think that within that spirit that you adopted that principle last June.

Where we differ, if we may, is how we break that impasse. 1 think you are right in pointing out the groundswell that is developing on the part of Canadians, their concern about the slowness with which we are proceeding in this field and, secondly, our apparent inability to break the deadlock.

Now, having said that, I again want to make a point and then get your views, I do not think it is realistic to expect us to cease our work or to go back to Parliament and say, let us stop until we have a constitutional assembly because we would then have to spend considerable time determining what would form a constituent assembly, who would be the delegates would they be elected or would they be appointed, if elected, how would they differ from members who are sitting here, are sitting in the House of Commons.

If appointed, who would do the appointing? What would be the time frame? Six months, six years, sixty years?

There are a lot of practical problems, some of which Mr. Rose raised quite eloquently yesterday in dealing with another organization. Having said that, it does not make the case any less, to me, anyway, important that the public have an input.

The part I would like to draw your attention to and perhaps get your advice or support or deals with something that has not preoccupied people in the constitution and that is one of the provisions in the proposed resolution which says, in effect, in layman’s language, this time. I am not a constitutional expert either, that after this process is completed and we have a constitution patriated with an amending formula, there would be a period of 24 months during which nothing will happen.

The constitution could not be changed except by the procedures that are presently in force and during that 24 month period and, hopefully, in another federal-provincial conference a more suitable amending formula could be arrived at, for that

[Page 26]

matter, anything could be improved upon, including the charter.

I am wondering, sir, if you think that perhaps your movement your suggestions and that of the Canadian Connection yesterday could be utilized in that 24-month period to make it very clear to all parliamentarians, federal and provincial, that we expect something done in those 24 months, that Canadians are aroused, that they want to see us do this thing by consensus rather than by confrontation, one last word, there would be nothing to prevent the provinces to include the municipalities at that particular conference in 24 months.

Would you care to elaborate on that for us?

Rev. Scott: Mr. Chairman, responding in several levels.

One is, I am deeply grateful to the government for initiating the discussion around the constitution and providing a fairly clear focus people have to react to because I think that is one of the important steps that needs to be taken and I would give full credit for that having been done and also I think I would like to share what I know must be the frustration of some of the people who in the constitutional law field have been working at this for years in the government. They can get pretty impatient at different stages and I can share some of that impatience.

The dilemma I would have with the proposal of acting now and then assuming that in 24 months you could rethink and then take action is something that I discover about myself and about many other people that there is a stage when you would be thinking openly about questions and exploring about questions.

But then it comes to the stage when you put in writing in a formal focus what you have arrived at and that brings s subtle difference, it seems to me, in people and people’s reaction because as soon as you put on paper and you formalize what you arrived at, then there inevitably comes to be a degree of defensiveness in relation to what you have written.

And one of my problems about the kind of meetings that have taken place in the situation is where we arrive with set papers rather than arrive with reflections about ideas so that we can share situations and then do not have to defend in the adversarial system, we can explore more openly. My dilemma about the proposal that you have made is that I think it would almost inevitably be that there would be a very strong defensiveness on the part of the people who have been involved in that particular section. It would be very, very difficult to get that changed in 24 months.

Mr. Mackasey: Well, let us come back to your proposal and let us presume that we stop. How do you see your process ending up in constitutional change whether it would be, for instance, evolved from ideas and concepts and principles into something pragmatic and realistic that would be reflected sooner or later at the level I have just described, a provincial-federal conference.

[Page 27]

Rev. Scott: I would think that there would need to be a time limit set for a process to go on out of which then there could be the reflection on the part of people who have responsibility in the government situation on what has been taking place in that process and the formulation of that process then relating it into a form that would be a constitutional pattern. I think there would need to be a definite time aspect.

Mr. Mackasey: Do you have any idea as to what the timeframe should be?

Rev. Scott: I think it would take probably at least three years, and I suggested two.

Mr. Mackasey: How would the participants be selected?

Rev. Scott: In many ways, I would like to see us explore the possibility of a degree of self-selection in certain areas, that is encourage community groups to reflect on the situation and have a way of them sending information in to wider groups within provinces in this situation.

I think that there is far more inherent wisdom in the average human being that most of us in positions of authority ever give credit for and if we let people reflect on that and put on paper some of their ideas and then gradually the process of things flowing up from people around issues and questions that are raised for them to respond to, and if there is a focus, their reflections are going to be a contribution to a very important decision that, I think, stimulates the involvement of people in that process.

Mr. Mackasey: If I may, being the Devil’s advocate I have a position to defend, what you have enunciated is a fair description of what is going on. We have after all met 80 some groups representing several millions of people, native people, I intend to come back to that in a moment, were for the first time involved in the process, where Canadians have had an opportunity to see the emotion, the passion, the articulants of the people and the justice of their cause.

In addition to meeting the 85 groups there have been hundreds of briefs that have come in from across Canada. So, I must suggest that in essence we are really doing what you are suggesting. Do you disagree with me?

Rev. Scott: No, I think that with a part of the process I would agree. I think the limitations of the process, that is different from what I am suggesting is that you are doing that but that you are doing that in the face of something which has already been developed and set forth, that eventually has to be responded to, that the shaping of that is not really within the purview of that process, that some alterations in it might be, but the shaping of it, it is not.

I think that the people can be involved in the shaping of things; there is far more committment to it than just involved in the reformation of something.

Mr. Mackasey: I do not think there is much difference between our views. I have to take them very much into consideration because of the respect that I have for you both as a person and what you represent in a collective sense.

[Page 28]

You made a very strong case, and this is my final contribution, Mr. Chairman, I would just say that the Prime Minister does recognize the need for participation of the aboriginal peoples in our process, and I draw your attention, sir, to a letter sent out on October 30, 1980 to the Inuit people that which is equally applicable to the Indian and I have taken the liberty of preparing a copy for you. because the Prime Minister said, and I will read you just one paragraph:

I have already agreed to discuss such matters as aboriginal treaty rights, and internal native self-government, native representation in political institutions such as Parliament and responsibilities of federal and territorial governments, etc., etc., with the groups.

But the Prime Minister goes on and gives a personal commitment that the old problem of aboriginal people would be the first order of business at the next federal-provincial conference and that is a very significant step forward because it means that the federal government would take the initiative and place on the agenda at the next conference the whole issue with its problems.

The Prime Minister goes on in his letter to attempt to ally the fears of the aboriginal people that somehow what we are doing here will be not in the best interest of the people.

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

Mr. McGrath.

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

Your Grace, whilst you have indicated that you are appearing before this Committee today as an individual, you nevertheless carry with you the dignity and the force of the high office that you hold. I, for one, am grateful that you have identified in a very effective way what I might call the moral dimension of what we are doing and I think you have served us very well in that respect.

You have referred to process and, indeed, we are all concerned with the process because we are dealing with the fundamental law of the land, the constitution, Many of us believe that that should flow upwards from the people and we were the first, I believe, my colleague, Jake Epp, on behalf of our party, to propose a constituent assembly as means of involving the people in that upward process because it has been our experience, and I might say it has been a frustrating experience, that this process here has not permitted involvement of the ordinary people of Canada.

Indeed, today as we meet, we are cognizant of the fact that, I think you are the 88th witness out of 481 groups that have requested permission to appear and I say groups because the Committee, at least the majority of the members on the Committee, and the government have decided that we will not hear from individual witnesses, although you are one of the five individual witnesses in the category of expert witnesses to appear, but I was struck by something you said in your brief, and I think it sums it up very well, when you said, and I quote:

The right of each citizen to become involved in such a process requires no defense. The opportunity presented to

[Page 29]

the nation by fullest participation of its citizens ought to be equally evident. What value is there in elaborating a new blueprint for interaction among the regions, the language groups, the heritages or beliefs of Canadians and even between the sexes when our citizens are not themselves committed to the spirit of accommodation. By leaving citizens as bystanders, we lose the precious opportunity to involve them in the process.

We finish hearing witnesses this week, this Friday. We have been operating under closure, and I do not say that in any partisan way but I say that in sadness, because the Gallup poll and a CBC national poll have indicated that there is great concern in the country over the process, great concern over the unilateral nature of the governments actions.

Indeed, a majority of Canadians have come out quite firmly against unilateral action in terms of the constitution. Mr. Mackasey has, in the course of his intervention as he has before, indicated that the process does not end, the process of involvement does not end with the hearings of this Committee which, unfortunately, will end this week but he has referred to the 24 month period which is a part of the amending process in the resolution before us. Well, of course, that 24-month period does not allow citizen participation. Indeed, this Committee will die with its report to the House and there will be no other forum for the involvement of citizens, save the ongoing meeting of First Ministers and, perhaps, the unilateral rights of the Government of Canada, if this bill passes, to go by way of referendum on a question that they themselves refrain and on the timing of their choosing.

I would like to ask two questions of Your Grace.

First of all, when you deal with a question as fundamentally important to the nation as the constitution, and here we are dealing with, for example, the entrenchment of a Bill of Rights, and that speaks to freedom of religion which is, of course, of interest to you sir, one would expect that there would be the widest possible consultation because, notwithstanding what Mr. Mackasey would have us believe, a charter of rights is a relatively new thing in the Canadian constitutional debate. As Premier Blakeney has indicated to the Committee it has only been around for a few years and this is the first draft charter we have had before us. I would like to ask you if, as the Primate of the Anglican Church of Canada, if you were consulted by the Government of Canada in any way prior to the release of the draft charter which we now have before us.

Rev. Scott: I think that it is very difficult to define what you mean by consultation.

Mr. McGrath: I mean officially.

Rev. Scott: No, I was not officially written or asked to reflect and respond on that, no.

Mr. McGrath: Yet, the impact or the potential impact of the freedom of conscience and religion and religion provisions

[Page 30]

of the charter could have wide ranging consequences for the life of the church in Canada.

My second question, and I realize that we are operating under very severe time constraints, and that too is unfortunate because I believe you to be a very important witness, deals again with the question of process. Although you have not indicated your support or you have not precisely identified a constituent or a constitutional convention, yet it seems to me that if we are to cease the exciting opportunity that Mayor Dewar referred to yesterday of creating a Canadian constitution that will not only serve the needs of the land today but will serve our children in whatever kind of an environment they have to live in and in whatever kind of influences they are on. Do you believe that, first of all, the work of this Committee should be extended as a part of that three-year process, and you have identified a three-year time frame, and do you see within that period the Government of Canada using the organization that they have and their position as the first government of the land, if I could put it that way, I hesitate to use the word senior, would in fact commence a process of citizen involvement, using a Committee of Parliament as one means of that process but in some way involving the legislatures of the country because we are still a federal state, and also using people such as yourself whom I perceive as a part of the government of this land, as the head of one of the major Christian Churches in this country, and has the Anglican Church, either through general Synod or through its executive council, in your own mind, Your Grace, have you evolved your thinking as to how you would, in fact, involve people in the process, and I have identified one way, and that is the continuation of this Committee because, as you know, we have been unfortunately denied the right to travel and that speaks to the fact that there are 606 citizens of this nation who have asked to appear and they will be denied to right to appear because I believe it is important that the average person be heard the underprivileged, the working poor, the unemployed, the people living in disadvantaged areas, the aboriginal people, not only through their band council but on an individual basis, how they have to confront the problems of an urban society, for example, which is one of the great social problems of the country, the cultural clash as our aboriginal people become or try and fit into the urban milieu. I believe that these are important questions and I am just wondering if there has been any thinking in this regard or if you have had time, and I realize you are not here as the head of the Anglican community in Canada but as an individual but, I believe that the General Synod did make reference to this in June and that the Synod has not had an opportunity to review the proposals before us but perhaps your Executive Council has had that opportunity and has, as a consequence, been able to project your thinking in the direction to which I have already indicated.

Rev. Scott: I am going to respond in several ways to that.

The General Synod did pass a motion giving support to the inclusion of an entrenched bill of rights in the constitution of Canada. This did not have as much time as it ought to have had for discussion there. At the National Executive Council

[Page 31]

we had an extremely good discussion of some of the principles pro and con on that pattern and there was no unanimity among the people about that question.

But the issues that were involved in it certainly were highlighted for people there in a way that they had never been in any discussion that they had been in before.

There is a letter in the process of going to every parish in Canada dealing with some of the questions around the constitution asking the people in the parish to take the initiative of discussion wherever possible in the community basis around issues relating to the constitution, so we are trying to encourage the discussion of a lot of the questions and some of the principles I have outlined in the paper.

I think that is a process we need to have. I think we need to struggle to get a system of how you relate that to government situations, if I may dare not suggest it, in a slightly different context in this kind of Commission because I know some of the dilemmas you are faced with.

May I point out to you the initial discussion before I started to speak which then deal with the whole question of a relationship between party situations and how you viewed people in a situation before you listened to them.

Now, one of the dilemmas we are faced with in the dealing with a thing like the constitution is that when you deal with it and the framing of it, the thing you do of it in an adversarial context, then you are not allowing people to make the contributions of are best insights in an open way. You are having to be defensive about what you are saying because you have an obligation line and each one of you is caught in that situation here and that is why I say I really have some sensitivity of the difficulties you are working under in this field.

But, somehow, I am sure that we have got to struggle in Canada to provide a context for more open sharing of ideas and concerns without having them labelled in terms of a particular party or group around fundamental principles.

Now, if we can get some way of parliamentary Committees that can operate in that kind of situation, then I think we need that kind of structure. That is something that we are really struggling with in the Canadian pattern. Now, we are caught in the same kind of situation. You get a discussion taking place on the constitution now in a province and you get people divided and their loyalty to the provincial government and to the federal government which are taking different positions or having to respond to a controversial situation that has come up and respond around a particular document without a way of dreaming openly about what might be or what is the new vision of the situation and that opportunity has never really been opened up for us in Canada.

Mr. McGrath: It is interesting, I just include by way of footnote, Mr. Chairman, the Archbishop can respond if he wishes, but it is interesting that the process obviously has started but it has started subsequent to the release of the proposals now before us and it seems to me to be tragic because we only have had these proposals before us since October.

[Page 32]

It seems to me to be tragic in the extreme that that process which is now under way will be tragically aborted when this Committee reports to the House on February 6 and when the Government of Canada, by the use of its majority and I say that inoffensively, or by the invocation of closure, as being the characteristic of this measure, will abort that process because, with respect to my friend Mr. Mackasey, there will be no further opportunity in the 24 month period under these amending provisions to have citizen involvement, to have the involvement of the Anglican Communion, to allow your parishes adequate time to react and that is the real tragedy of what we are doing here.

I say that as a Canadian, as a father, as one who is raising children because I am concerned about the kind of Canada I am going to leave my children.

Rev. Scott: I can respond in one or two ways, if I might. Mr. Chairman. Two things.

One is I dare to raise this question as to whether the process would have got under way had the government not taken a concrete action.

Mr. McGrath: Quite true!

Rev. Scott: That is why I give credit to the government for taking the concrete action. They have got the process under way.

The second question I would like to raise, and I do not know because I am not an expert on parliamentary situations, is to whether that process that is now under way needs to be aborted and that is when I respond to Mr. Crombie’s question which is whether or not some wider situations can be linked with the process that is under way without stopping it and starting something entirely different.

So, it seems to me that it should be within the wisdom of statesmen, and I believe we have statesmen in Canada to devise ways and means of continuing that process, of not aborting that process, of leading it to something which has been started by this particular action.

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

Mr. Nystrom.

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

I wanted to also thank Most Reverend Edward Scott for coming here today and to say that what really struck me most about his brief was some of the moral priorities that he outlined that should be structuring and guiding us in terms of public policy in this country and in constitutional writing and I wanted to refer back to the three that he refers to.

He says on page 6 of his brief that the needs of the poor take priority over the wants of the rich and I think if you look at this country find that the poorest of the poor are the native people or the Indian people of Canada.

He also says, secondly, that the freedom of the dominated takes priority over the liberty of the powerful. And, again, if there is any group that has been dominated in terms of lack of freedom in our country, it has been the Indian people.

[Page 33]

If my memory serves me correctly, they only received the right to vote in 1963. They received many other rights such as the right to go into taverns very late, compared to other Canadians, confined to little tracts of land called Indian reserves and the like.

There are many. many freedoms that were taken for granted by other peoples that were never given to the Indian people,

And, finally, you say that the participation of marginalized groups takes priority over the preservation of an order that excludes them. Really, you are talking here about a lot of repression. I wanted to just begin that way and refer you to Section 24 of the resolution before us which deals with native rights, which does not enshrine anything in a positive way and I would like to ask you what your reaction is to Section 24 and whether or not you would be in favour of enshrining the Indian treaties in our constitution and whether or not you would be in favour of enshrining the aboriginal rights of the original people of Canada in the constitution because of the fact that our history and our society has been so discriminatory against them in the past.

Rev. Scott: I do not think that Section 24 is adequate protection for the Indian people, the native peoples. They have clearly demonstrated that they do not think it is adequate protection for them.

I would be opposed to enshrining the treaties within the constitution that now exist. I would be in favour of enshrining the concept of aboriginal rights without too tight a definition of what that is but I think there needs to be that affirmation enshrined within the constitution so that they have the security that the protection that they have now is carried forward.

Mr. Nystrom: In terms of having that security and having it carried forward, I think one of the reasons we need a charter of rights enshrined is to prevent the tyranny of the majority or the suppression of the minority by the majority and in terms of protecting those rights on into the future, do you visualize or do you see any role in the amending formula because you referred to that in your brief this morning for the native people of this country.

Should they, for example, be involved as the second partner in all amendments that pertain directly to native rights and native affairs? Should they have a veto, for example. Should they have the right to opt out of any constitutional amendment that affects them directly if they do not like that amendment?

Rev. Scott: I would think there would need to be exploration of the factors that is involved in that. The general principle of people being involved in the decisions that affect their own pride, I think, it is a fundamentally important decision and I think it has been irresponsible and I think it would continue to be irresponsible to make decisions about native peoples without them being involved in the discussion of those decisions; so I think some provision needs to be made for that to take place and that to happen.

[Page 34]

Whether it should be a complete veto is a question that I would like to give more thought to because we have to be able to avoid two things in the settling of conflict of claims.

One is the denial of the basic rights of minorities by majority government. On the other hand you have to be able to avoid the reverse of that, the manipulation of the majority by a minority and it is that question of getting a balance and that is where justice comes through the whole situation that we need to be focusing in terms of the concept of justice that recognizes both aspects of the situation and I think that needs to be thought through pretty carefully and I am not enough of an expert in this field to know how that could best be done but I think that what you are getting your concern, I would certainly support.

Mr. Nystrom: I am referring to a section, for example, in the resolution before us, it is Sections 34 and 43, that allows a province to bilaterally change its constitution, where it affects only that province when the agreement between the legislative assembly of a province and the Government of Canada, so it can be Saskatchewan and Parliament, Quebec and Parliament where it pertains only solely and strictly to that one province, they can do it bilaterally. I am just wondering whether or not you would be in favour of a similar arrangement for the native people of this country, whether it be the Indian people or the Métis people or the Inuit people, for any constitutional amendment that affects their rights and solely their rights, in other words, where it would have to go through the over-all amending formula.

Rev. Scott: I do not think it needs to go through the over-all amending formula as long as it is recognized that it relates primarily to them and does not have too much of a major consequence upon the totality of the country. If it has a major consequence on the totality, then I think that they do not need to be involved in that, but I certainly think that there needs to be a provision for responsible consultation, not formalities of a meeting that do not get down to any depth with native peoples or on any of those questions, and that has not existed in the past.

Mr. Nystrom: I like one of the responses that you gave to Mr. Mackasey about a constituent assembly and how people would be chosen. that we should be relying on people to select their own people as representatives or to determine their own way of suggesting changes for the constitution.

One of the things that we have had suggested by a number of the Indian groups that have appeared before the Committee the last few weeks has been the whole concept of Indian self-government, the evolution of the Indian nations of this country and to what some people call a third level of government, the provinces, the federal government and the original peoples or into what some people have called a quasi-province and I wondered if you had given any thought to the idea of evolution, of a unique form of Indian government in this country. Can you offer us any advice as to whether or not we should be looking at it as another government to perhaps refer to in our constitution.

[Page 35]

I am aware, of course, Your Grace, that we do not in our constitution refer to municipalities, Municipalities are creatures of the provinces and we have had a few people before us suggesting that that too should perhaps be changed in our constitution.

But, I am just wondering whether or not we should at this time be looking at the evolution of self-government, more self-determination for the Indian nations of our country and then recognizing that in some way in the constitution and, if so, what do you think that should pertain to.

Should it pertain to Indians determining laws on Indian reserves? Should it pertain to such things as family law? Should it pertain to such things as raising of revenues through their own form of taxation?

Rev. Scott: I think we should be willing to explore those questions. I think that is part of the issue of aboriginal rights and people being subjects of their own history.

I have not thought through carefully enough of all the implications that are involved in that to take a position on that other than the fact that that aspect needs to be explored we need to look at that situation and not just rule it out as impossible when it is suggested.

I think many things that are very usually ruled out as impossible can become possibilities in an alterned form from the original suggestion if they are explored and listened to carefully.

Mr. Nystrom: What about Indian languages? Would you suggest that we entrench Indian languages in the constitution? There has been a consensus, I think, from everybody in this Committee and by every group that has come before the Committee, I think every group, if my memory serves me correctly, that we should be enshrining French and English as the two official languages of Canada.

There is some dispute, of course, as to how we should enshrine them or to what extent or how far we should go in terms of some of the agencies of the government, particularly when it comes to educational rights.

There is also a number of Indian groups saying that their languages should be enshrined. We have the Inuit for example, that refer to the fact that in the Eastern Arctic they are in the majority, that the majority of people there do not speak English or French and that there should be a constitutional recognition of their language and also the right of their people to go to schools in their language. I wonder if you have given any thought to this and whether we should do it and how we should do it or how extensive it should be.

Rev. Scott: I have not given detailed thought to that. My immediate reaction is that I think this can best be achieved in other ways than enshrinement, because then you end up with at what point do you stop enshrining particular languages, because there are areas of the country that I lived in where people spoke Ukrainian in the majority, in the situation that is there.

[Page 36]

I think we need to have real sensitivity in the Canadian mosaic to the place of other languages and encourage the use of other languages that we are doing, but I am not sure that that can best be achieved by enshrining things down to that detail within the constitution.

The Joint Chairman (Senator Hays): Thank you very much. Do you have another question?

Mr. Nystrom: Well, again, the signal from the Chairman. Well, perhaps what I will do is come back on the second round with just one final comment.

The Joint Chairman (Senator Hays): Well, you go ahead now, Mr. Nystrom. You have another minute. Two, three.

Mr. Nystrom: Alright. I wanted to ask Your Grace whether or not it is true that the preservation of the culture of Indian people and Métis people and Inuit people can only occur if aboriginal rights are enshrined in the constitution, given the history of the treatment of aboriginal people in this country and other countries around the world? Do we need that extra protection of the courts?

If that does not occur, is there a real possibility that over times a people could be eliminated, wiped out or assimilated. There is certainly that fear amongst some of the, or perhaps I should say amongst many of the native people who have come before this Committee. Do they need that guarantee to ensure that their culture will remain a very important part of the Canadian fabric?

Rev. Scott: I think the enshrining of aboriginal rights does not in fact mean that cultures remain static and do not interact, I think we run into difficulties if we assume that cultures are static things and always the same.

By enshrining the concept of aboriginal rights we are giving them a particular position that they will be taken seriously and worked at in that situation, but a culture, in addition to being recognized, has to have within itself the vitality of its own continuation, and I think that can come. I think they need the protection of being recognized, of their culture being respected and affirmed. I think that needs to be enshrined rather than any sense of perpetual, no change pattern in relation to the culture.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Nystrom. We go now to the honourable Mr. Allmand, followed by Senator Roblin.

Mr. Allmand: Bishop Scott, of the approximate 88 groups or witnesses that have appeared before this Committee, 33 have in one way or another recommended a positive entrenchment of aboriginal or treaty rights, which is an important fact because that is well over the one third of those that have appeared, and among those have been groups such as the Canadian Bar Association, the United Church, Premier Hatfield, the council of national Ethnocultural Organizations, the Canadian Council on Social Development and so on, fifteen of those 33 groups were groups representing Indian or Inuit or Métis organizations.

The point I make is that there has been a lot of discussion, and this question is taken as very serious by many groups in Canada. I might say that of those 33 groups, none were happy

[Page 37]

with the present formulation of Section 24 and wanted something positive.

Now, what I found in discussing this issue of entrenching a recognition of aboriginal rights or the primacy of treaty rights with some members of Parliament, many of whom are new to these issues, is that while they recognize the justice of the claim, there is a fear that if we were to make a positive entrenchment of aboriginal rights or treaty rights in the constitution, they are uncertain as to what the results would be, they feel it would lead to disorder in the country, perhaps economic disorder or social disorder, that it might lead to eviction from lands long held by Euro-Canadians, as we were described yesterday by the native groups, that they feel that while there is justice here it is impossible to redo history.

Now, do you think that these fears are well founded, that if we were to entrench a recognition of aboriginal rights in the constitution, and you have not come out for entrenching the primacy of the treaties in some way, but do you think that if we were to move in that direction, do you think that these fears are well founded, that we would have this sort of disorder in the country?

Rev. Scott: No, I do not. I think that there is a growing, deeper sense of responsibility and concern on the part of the native peoples. They know that history cannot be rewritten but they recognize that many things can be done in the present.

You and I cannot undo the past but we can take action in the present to change some of the effects of the past, and I think they are realistic enough to know that situation as well.

It seems to me that the very fact of these fears being expressed is interesting because what the people are saying is when there is a kind of uncertainty, then they are afraid and they cannot trust. Well, what they are actually recognizing in themselves is the very thing that is real in the Indian peoples; they feel uncertain at the present time, therefore they are afraid, therefore they do not trust. Now the shoe is on the other foot when you suggest the entrenchment of this kind of situation and I think that is a natural thing in terms of human beings, but I think these things can be worked at, it can be developed. there will be some give and take and there will be some hardship I think in some situations, in adjustment to some situations, but I do not think they are insurmountable problems.

Mr. Allmand: It is interesting to note, though, that the reticence to act or the fear to act are more expressed by people in positions of authority, governments and bureaucrats, and perhaps members of Parliament, than with groups of citizens. I mention the Canadian Bar Association and other groups, the Canadian Council for Social Development, you from the Anglican Church, and the United Church when it appeared, do not seem to hold these fears as deeply as maybe lawyers and bureaucrats that advise governments and members of Parliament, and I find that interesting because, as I say, with 33 groups that is a rather interesting number.

If this Committee was to recommend, and the government was to agree to amend the proposals to include some positive entrenchment recognizing aboriginal rights, do you think that

[Page 38]

that sort of position taken by the federal Parliament, the federal government, would require the unanimous agreement of the provinces?

With respect to aboriginal affairs, what kind of agreement do you think we should try and get from the provinces on these things in view of the fact of our history and so on?

Rev. Scott: I do not think that it should be expected to get necessarily unanimous agreement. I would hope there could come from the provinces an understanding of the issues deeply enough so that they are prepared to recognize the justness of that action and to be pressed to recognize the justice of that action, but I would not see that there needs to be unanimous agreement but certainly there needs to be consultation with the provinces because part of the implication of the recognition of those rights would have to be reflected in provincial actions, and one of the dilemmas we are faced with at the present time, and that is that some of the discussions I have been involved in in the past where you get arguments about the rights of the provincial governments and the rights of the federal government, which is something I would question, are we talking about the jurisdiction of the provincial government, the jurisdiction of the federal government, is that the rights of the peoples get lost in argument and time and time again the rights of Indian people have been ignored, they have been sidetracked in the struggle for the balance of power between provinces and the federal government, and you have been involved in those discussions yourself, sir.

Mr. Allmand: Harkening back to my first question, it is interesting to note that in the fear that by recognizing aboriginal rights large tracts of land may be transferred to Indians and Inuit, it is interesting to note in Canada at the present time there are 10,072 square miles reserved for approximately 450 Indian bands.

On the other hand, the federal government has allocated 50,060 square miles for 28 national parks. Now, I am not opposed to national parks but it is interesting that we are able to find that much more land for 28 parks,

The other interesting thing is that national park land can only be expropriated by an act of Parliament. None of a national park can be taken unless there is an act of Parliament, whereas you have pointed out Indian land can be transferred, taken away from Indians merely by an Order in Council on the recommendation, I think, of the Minister for Indian Affairs, without any reference to Parliament. That is all.

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

Senator Roblin.

Senator Roblin: Thank you, Mr. Chairman.

As a member of your flock, Archbishop, I welcome your apotheosis as a constitutional expert.

Mr. Mackasey: Every flock has got a black sheep.

[Page 39]

Senator Roblin: Well, I made no claims for myself, Mr. Mackasey, and I think I better not.

It is well understood that clergymen are not exactly strangers to public affairs, and if I may say so, your presentation here this morning has been profoundly moving to me and I thank you for it.

You expressed the necessity that we should consider the moral imperatives in which we operate and indeed that is a point which is all too easily lost sight of in activities such as the one that we are going through here today, and I think you related that concept to the process in which we are engaged, quite rightly.

I suppose I am the only one, or certainly one of the very few at this table who have taken any part as a principal player in dominion-provincial conferences in days gone by, and one of the things that has been home in on me as a result of that experience is the difficulty of dealing with matters of a fundamental character such as those that we address today, within the arena of political confrontation. I think you have made that point very clear in your remarks to us today, and we have been searching for some way out of that dilemma.

Of course, it is not the first time that Canada has faced that problem, because in the years that led up to 1867, when the British North America Act was originally written, by Canadians incidentally, it was found impossible to deal with it within the regular political processes and they diffused the whole confrontational aspect to a large extent by reorganizing the political structure so that the confrontation or the discussions were removed from the party processing inside the legislature into a closer association within the Cabinet of the day. That was their solution. I am not sure we could follow the same pattern today, but there is another pattern, and because you have raised this point of a national consensus on this matter which, to my mind, is absolutely fundamental, I want to try this one on you for size to see whether it would present an improvement.

This Committee is not powerless. We are not bound to do anything. If we wish, we can recommend to Parliament that the address to Her Majesty be not proceeded with. I hope that will be our decision. However, I think if we do so we are bound to suggest some alternative process, and I would suggest to you that one possibility certainly is this; that in considering a consultative assembly or somebody like that, one would be well advised to begin with those people who have been regularly elected by the population to represent them in the various bodies of our country, and I think you could form such a consultative assembly by including in it as a start, on a proportional basis, representation from the Parliament of Canada of all parties, representation from the legislatures of Canada on all parties, with a limited number, perhaps 100 to take in the whole of that group, with the power to ask those other special people who should be considered in the process.

While I know that is an exceedingly difficult line to draw, we could certainly start with the native people, and I am sure

[Page 40]

there would be others of a substantial character whose rights to be considered would commend themselves.

It seems to me that if we said to the Parliament of Canada: proceed no further, remit what we have now, remit this process to a new body with this three-year time period, if that is the proper one, that would encompass all the varieties of political expression in the country that are elected and therefore have legitimacy in that sense, and at the same time have the possibility of including others whose voices should be heard.

Now, I put it to you that that is a possible route that this Committee could take in dealing with our responsibilities. Could you advise me how to improve upon it?

Rev. Scott: I think that is a possible route and I think it provides the context in which submissions that arise out of the life of local groups could be channelled into that kind of grouping, that would be to encourage in towns, communities and cities, the various groups’ reflections and have it flow into that whole process from the various groups in different areas. I think there are all kinds of possible ways of expanding that and making it on a broader basis that would have a flow of ideas and concepts up from the people.

Senator Roblin: Well, I do not know how far I will get with the proposition, but I intend at a future time to request that it receive some consideration here because, contrary to Mr. Mackasey, I have no faith in this proposition that we have got 24 months do to something else if we move now. If we have got 24 months in which nothing is going to happen, and I think that is the expression he used, I copied it down, what is the rush? What are we hurrying for now if we are going to sit around for 24 months and look at it again?

An hon. Member: Hear, hear.

Senator Roblin: And if there is no possibility or a limited possibility of including the kinds of consultations which you have suggested in that 24-month period, its utility seems dubious to me, but that is a private discussion between Mr. Mackasey and I, and I will not involve you in that.

I would like to go on to this question of the amending procedure because if we do go ahead, and all the signs point to the probability that we will, I do not think we respond adequately to your challenge to wait and exercise that sober second thought that I am supposed to represent in this chamber today, if we do go ahead, the question of the amending formula becomes of critical importance, and you have pointed out to us the dilemma that we face. If we have an entrenched constitution with a Bill of Rights included, the dilemma we face between freezing it and making the arrangement sufficiently flexible so that when change is necessary, as assuredly it will be, we can change it with some degree of flexibility.

We have had a number of amending formulae presented to us. The present one is the unanimous route which I think perhaps is a little rigid, and some of the others that have been proposed have been widely criticized because they seem to give special rights to certain people who live in certain provinces with respect to the value of their vote in dealing with the amendments to the constitution.

[Page 41]

However, there is one that I have to admit to you that I favour and I would like to know whether you have given it any consideration, and that is called the Vancouver concensus.

The way that works is that the constitution could be changed if the federal government recommends it or agrees to it, and is supported by two-thirds of the provinces representing 50 per cent of the electorate, with the proviso that in certain restricted areas, which I read into the record last night and I do not know whether I have got the paper here now, dealing with present provincial powers and rights, that they will not be changed or abrogated against the will of the particular province so that, for example, the province of Quebec feels protected with respect to its control over its particular cultural rights as expressed in the constitution, even though the rest of the country might be going in a different direction in some way.

So I put it to you that this formula perhaps, certainly the best that I have heard of and there may be better ones, best combines the certainty or the assurance that minority groups seek, understandably, in the protection of their rights with some kind of flexibility to make it possible to move ahead when the time comes to do that.

I do not know whether you have given any thought to this problem, but if you have I would appreciate some comment from you on this proposition.

Rev. Scott: I have only thought at a limited level of the situation. From what I have read, I prefer the Vancouver formula to what has been suggested.

The other comment, I do not have the details clear enough in my mind and I believe they have been received by this Committee, are some reflections by Professor Ryan of the Law Department of Queen’s around the possibility that touches on the Vancouver amendment and some slight changes that might be made in it. I think that he is certainly raising some questions that need to be looked at there, but I think this is an improvement on what we have.

Senator Roblin: Well, you encourage me. I will keep working on that one.

I just have a final point and it has to do with native rights, because you spoke very eloquently on that subject, and is presenting us with grave problems, and I refer you to the presentation made by the Premier of Saskatchewan, who spoke on this point dealing with native rights and describing his own set of amendments which I could read to you if you like, but it raises this point: it, meaning his set of amendments, does not affirmatively state or confirm rights, of Indians, Inuit and Métis, essentially because of my approach to a Charter of Rights that one does not dare assert in that which you are uncertain about, and that it is fair to say that we are uncertain about the nature, scope and extent of the historic rights which pertain to Indian, Inuit, Métis or other native peoples, and as a result of that approach to the problem, he has produced an amendment which I think is better than the Section 24 that we have now, but I am not sure it really goes to the heart of the matter, and I am really asking you if you have any advice for us as to how we could go about reducing that area of uncertainty, as to what we mean about all these aspects of native

[Page 42]

rights, to the point where it could be placed in the constitution as something that we could live up to?

Rev. Scott: I really have not got any suggestion to make on how it could best be placed in the constitution, because I think you need somebody with knowledge of constitutional law to be able to frame that.

It seems to me the things, the things that I would feel need to be tried to be expressed in words, one is the recognition of the fact of certain aboriginal rights without necessarily defining what they are because I think you are dealing with relationships between two cultures and you cannot define one culture or the other. What you are doing is to assert the fact they exist and providing for a process of relationships between the government and the native peoples in discussions about the nature of those rights and the implementation of those rights.

The Joint Chairman (Senator Hays): Senator Roblin, I am sorry, but I still have about seven or eight people.

Senator Roblin: Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you very much, Senator Roblin, and I now go to Mr. Ron Irwin.

Mr. Irwin: Your Grace, welcome to the Committee. I very much appreciated reading your brief and hearing you and I am very pleased that you and your group took the time to put thought into the brief.

One of the main points you make is that we should put more time into the constitution, and I would just like to briefly, as quickly as I can, go through some of the attempts that have been made.

There was the dominion-provincial conference in 1927, one in 1931, a special committee in 1935, the constitutional conference in 1950, the constitutional conference in 1960, 1961, the conference of Attorneys General in 1964, the conference of First Ministers in February, 1968; the draft proclamation exercised in 1975 or 1976, the federal-provincial conference of First Ministers in 1978, 1979, one in October, 1979 and one in June and September, 1980. There have been ten attempts, and many, many meetings of Ministers and staff in between that go into the hundreds.

Since we have started, we have heard the Canadian Human Rights Commission, the Civil Liberties Association, the Canadian Jewish Congress, the Chamber of Commerce, the Quebec Council of the Quebec Minorities, the Municipal Federation of Canada, Status of Women, the Canadian Polish Congress, the Mentally Retarded Association, the Protestant School Board of Greater Montreal, the Mennonite Central Committee, the Government of the Northwest Territories, the Canada-West Foundation, 16 native groups. This is only three pages of 12 pages. The poor, the oppressed, the handicapped and the list is endless, and I am sure at the end there will be honest differences of opinion, as I assume there were between your General Synod and the Executive Committee of your own governing body.

[Page 43]

After these many attempts, I think the public expects us to do something, to come to a decision and not procrastinate any longer.

Now, you have indicated two things, you are nervous about entrenching too many rights and you want limits on the power of governments, and I think we share the same concerns, and many of these come down to Section 15 of the Act, which provides that everyone has the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.

This is not something new, it is found in most provincial bills of rights that span the last 50 years, the Diefenbaker Bill of Rights. I think that every group that has been here has endorsed protection of these rights with minor exceptions.

For instance, the Catholic groups that have been here have been concerned about positive discrimination within their own religion as far as hiring practices in schools is concerned, and a few minor concerns, a tuning up of this section, but I do not think anybody has said that we do not support these.

Now, you tie these in with the aboriginal rights, and I state quite frankly with all these groups no one has really defined aboriginal rights to this Committee in a formula that we can put into a constitution. Now, are we to hold up these things while we define aboriginal rights?

Rev. Scott: Mr. Chairman, it is my conviction there could be put into a constitution something that would in fact give some positive protection to the concept of aboriginal rights without necessarily defining it.

Now, I know that is a touchy area that lawyers will not necessarily be happy about, but I do not think the whole of life is controlled by the thinking of lawyers because lawyers have to be shaped to the thinking of the traditions of their own particular culture, and when you are dealing with aboriginal rights, you are recognizing quite frankly, the different cultural patterns and there needs to be negotiation around them.

So what I would like to see enshrined is the recognition that they are a reality without defining what the nature is, providing for the process, for the discovery of what they mean and how they can be expressed in the future.

Mr. Irwin: Under the Charter, as you probably know, we do not discriminate against aboriginal rights, and it specifically says that because they are not mentioned does not mean that they do not exist; but you have indicated today your feeling, and I quote:

These aboriginal rights pertain to more than land, although land claims are certainly an important issue, Aborinal rights mean that the native people of Canada should be subjects of their own history and not the objects of paternalistic policies and actions.

Now, over these last few months, we have heard aboriginal rights defined as ownership, occupancy, jurisdiction over land,

[Page 44]

jurisdiction over criminal law, jurisdiction over marriage, jurisdiction over divorce, jurisdiction over courts within the reserves. I think jurisdiction over everything except the Post Office and the army, and I think that they know something that we do not know. I think everything has been covered except jurisdiction over the Post Office and the army, and yet within this we are to keep up equalization payments, land claims negotiations, so it boils down to almost a separate country status and no two groups before us have been agreed.

As a matter of fact, the last two groups that we heard were the clearest when they said, “These are negotiating positions, we have asked for everything”, and one very eloquent lady said, “We want more than the court definition, we want that amplified”, and one group yesterday said that, “We are not prepared to put a definition on aboriginal rights”.

Now, the Prime Minister has indicated that it would be a first priority at a First Ministers Conference and if we have a constitution, there is no guarantee it will be passed or approved, but if we have a constitution, at least there will be less things to argue about at the next conference.

We have provided $1,200,000 to three major groups to do a study on constitutional and aboriginal rights, and we have indicated our good faith. We are just not at this time, I do not think, prepared in all conscience because we do not know the exact definition, to exactly define “aboriginal rights”.

Now, I do not think your definition here would be acceptable to the groups that have been before us. Your sentiment would be acceptable, but I do not think your definition would be.

Rev. Scott: Right. I say in terms of the definition, I made no attempt really to define; I said some of the things that were involved in the situation because the definition of that, of aboriginal rights, really has to come out of negotiation, and it is the safeguarding of the process of responsible negotiations that I feel we have to carry forward.

Mr. Irwin: It comes back to this point: should we hold up these other rights which are equally as important, the rights of women, the basic rights of religion, freedom of association pertaining to unions, while we negotiate aboriginal rights? Is that the answer?

Rev. Scott: I think the options are not necessarily holding up one while the other is there. I also suggest there needs to be some additional work done upon some of the other situations, because I think the ways in which the present rights are set within the proposed constitution really need some further examination.

Mr. Irwin: Thank you.

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

We now go to Mr. Epp, followed by Mr. Rose, to conclude.

Mr. Epp: Thank you, Mr. Chairman. Archbishop Scott, I want to thank you for your testimony. For those of us who

[Page 45]

have said, number one, that the process should be taken over a longer period of time and include more Canadians, and secondly, that we were putting forward that proposition not in terms of trying to delay government action or to oppose government action, but rather to bind the wounds of the nation, and have had a fair amount of criticism for taking that position, it almost feels like Christmas. I can almost celebrate again with our Ukrainian friends who are observing Christmas these days.

However, what I want to concentrate on is the matter, the framework around which a constitution should be built. It has always been my view that one can work at the details, once one has agreed to the framework.

You say, on page 3 of your brief, that constitutional issues, or a nation cannot deal with constitutional issues in a vacuum, and I feel that has been part of our problem here. Quite apart from the participation of Canadians, that is a vacuum of one form, if I can use that expression.

There is another vacuum, and I believe that has been the moral basis on which a nation must be founded. A nation is not founded on legislated statute, it is based on moral law and while I do not put constitutional law made by man on the same level as moral law, there is a strong and very close association in my mind.

That being the case, the Canadian Bill of Rights, the so-called Diefenbaker Bill of Rights, and I am not raising it in a partisan way, but to my thinking that was the first or possibly the most visible attempt to give expression to the fact that a nation is under the sovereignty of God, and when I read, for example, the opening words . . .

The other point I would like to make is I believe a constitution must be uplifting, it must be more than if I pick up the Canadian Wheat Board Act in terms of what it does to me as a Canadian, as a person, therefore, I believe it must be uplifting.

Those words are, “The Parliament of Canada, affirming that the Canadian nation is founded upon principles, acknowledges the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions,” and then of course it goes on to words with which we are familiar.

The Canadian Bill of Rights, for all intents and purposes, without the preamble and the “I am a free Canadian” statement at the end, has two basic principles. It is a very short piece of work, but very intensive and that is, one, the recognition of the sovereignty of God and in the second part, that the power of government shall be restricted and subject to that sovereignty.

What I am saying, is obviously I would like to rewrite the whole Charter, keeping those principles in mind, and I would like to ask you what would be your position in terms of a preamble as being part of a Charter, a preamble which would embody those principles?

Rev. Scott: I would very much favour such a preamble. I think that any constitution should, as you say, be an uplifting thing, something people would be proud to point to and focus

[Page 46]

attention on, and it does not need to be long but I think it should set forth some basic things that are important, what the rest of this structure is attempting to achieve, what it is all in aid of, what it is trying to focus on. I think we need that very badly; we need that kind of vision.

Mr. Epp: That takes time?

Rev. Scott: Right.

Mr. Epp: The second point that I would like to look at, and I and some of my colleagues have been spending a fair amount of effort at it; we do not want to have in a Charter rights, while they are important to protect the rights of an individual, but that there also is enough flexibility to allow for the functioning of institutions who do not discriminate in the negative sense, but who exercise discretion in the positive sense.

How does one marry those two solitudes?

Rev. Scott: I am afraid, not being a constitutional lawyer, I really cannot answer that in terms of the constitution. I think you have identified the question that needs to be focused on and that is where I think it is the process by which you deal with claims and conflict is so important that there are going to be different claims and conflicts no matter what the constitutional pattern is and you need to look seriously at what process is provided for dealing with those, what framework of thought and approach governments are expected to take as they respond to those kinds of situations, and that is where I think some of the moral imperatives come in.

Mr. Epp: Thank you, Mr. Chairman.

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

Mr. Rose.

Mr. Rose: Thank you, Mr. Chairman.

Archbishop Scott, I would like to return to this business of aboriginal rights for a moment, if I may.

When the Nishkas were here before us from the Nass River in British Columbia they made the point or their spokespersons made the point that Section 24 confers no new rights or grants no rights at all, especially new ones, but merely says that the rights will not be taken away and does not enshrine any rights as well.

They made the suggestion that in terms of entrenchment, that perhaps you need not define aboriginal rights at all but they recommended to us, as I understand the recommendation and the notes I took that evening, that natives should maintain. at least the maintenance of these rights, aboriginal rights and titles should be enshrined until such rights are extinguished by treaty.

At that point, allowing this in the constitution, the naming or the delination of rights without necessarily a detailed definition of what they are, would ultimately free provinces to settle various claims falling within their jurisdiction and, for that matter, the federal government as well.

I would like to have your comments on that suggestion.

[Page 47]

Rev. Scott: I think it is identical to that that I am recommending, that there be enshrined the principle of aboriginal rights rather than the definition of them; but also if possible, to enshrine the necessity of the process of responsible negotiation around them, not be ignoring of them. We have had a number of centuries or a century of ignoring of many of those situations.

Mr. Rose: Of course, there are some groups, native groups under whose jurisdictions no treaties have been developed. I wonder, then, if I can turn to another aspect.

Several groups have discussed the lack of nobility of language in this document, the Charter. They talked about that it was not very inspirational and it did not really state the purpose or establish the objectives, the noble purpose of the country. You went on to say that, I believe you said that the constitution should be an inductive process rather than a deductive process by which people merely react to a document and then attempt to tinker with it. Was that the point you made?

One of my problems is how do you develop this inductive process, does this mean we fold our tents and stop our work here, or how do you develop this kind of grass-rootiness that you seem to imply since most constitutions, I would assume, not that I am any expert, certainly the American constitution was developed by the landed aristocracy, an elite, not the common grass-rooted people which you are talking about. I wonder if you could assist us in telling us how we achieve this objective?

Rev. Scott: Well, all I can do is give some general suggestions on some things I think are possible.

One is providing for a pretty flexible pattern for groups at the local level to meet and reflect, to a place where they can pass on situations and dialogue with situations, have it come up with some committee at the national level such as this, hopefully with less focus on a party situation, with a nonpartisan focus to it, in terms of what is the best kind of constitution for the country, and I think that kind of process is a possible one in our country.

Mr. Rose: Is it realistic, though, because I think you have seen, in spite of the fact this is a Committee, evidences of partisanship around the table this morning and how do we get a consensus or unanimity developing that would be accepted by the various jurisdictions, provinces and the federal government? Do we have to have an agreement that whatever this group decides, will be accepted or altered or amended, and if we alter and amend it how is that going to affect this building group?

Rev. Scott: I think I will reply in a little bit more detail about some of the comments that have been made about the number of attempts that were made in the past.

It seems to me one of the problems that I see with those attempts is two things: that I think in human history there is a time that is appropriate for things, there is a moment that is pregnant for possibility when something that can really happen because conditions within the country are ripe for it to happen.

[Page 48]

I think we have tried to do many things in the past in a formal kind of way when conditions where not ripe for it to happen.

The growing response and concern in Canada as a result of the present situation is much larger than it ever was in any of those issues before when attempts where made, so I think we are at that kind of possibility.

Therefore, I think we have to evolve in a new kind of approach, whether it is possible enough for people to look at the situation and say we will put to one side that document that has now been prepared for people to react to that has been valuable in stirring up the reaction and response, we will set in motion a process out of which some new ideas may come which may then be compared with that document or reflected on that document but not necessarily focused upon a document that you have to revise or are tied to.

Now, that makes a demand upon the present situation that is not easy in terms of the government, I recognize that, but I raise that as a possibility.

Mr. Rose: Well, just for my final question, the average person, you suggested, is about ready, the situation, the time is pregnant with possibilities for people to begin to react. People have not participated to date, as a matter of fact this is the first time that members of the Senate and Parliament to my knowledge have had an opportunity to participate, and as a federal member of Parliament I was always a bit jealous of the fact that I had no role in this and it was up to the Prime Minister and the provincial premiers up until now. So this is a bit of an extension, would you not agree?

Rev. Scott: Yes.

Mr. Rose: Alright, Now, the question is people in general have never before had an opportunity to participate because they felt it was the business of the provincial premiers and the Prime Minister of the day, and I would be very interested to know how suddenly you are going to have, even with the three year proposal of yours, this kind of thing happen now when it has not happened before now?

Rev. Scott: Well, I think the point has been made, which is a very important one, that what has happened now will set in motion 2. process, things are happening across the country. It would he tragic if that process was lost, was just aborted at this time, but I think that process is indicating that something different is needed than the present proposed pattern of action, and whether or not there is enough conviction that that needs to be changed, whether there is enough courage to change that kind of process to develop something that provides an alternative way to carry forward this process, I think is the question that this Committee has to make a recommendation about.

Mr. Rose: Community leaders are very interested in participating and you would hardly describe yourself as anything less than a leader of a church community, but in my mailbag, from my particular riding, I have had no great indication that

[Page 49]

out there are all these hundreds of individuals at the grass roots level clamouring to participate in this process.

Rev. Scott: I think you are right, and that is one of the reasons why some days ago I wrote to the President of the CBC urging that the media facilities we have, which are tremendous, should really be focusing attention and making it possible for people to look at some of the issues involved in the constitution and a little of that is beginning to happen.

It is not enough just report in this Committee, it is a matter of encouraging people to reflect about some of the kinds of issues. One of the tragic parts of Canadian life is that we have been far too acquiescent as citizens in relationship to government, we slip too easily into situations and may I suggest sometimes members of parties have been to acquiescent in relationship to cabinets in terms of the Situation there. We have got a kind of an authority pattern that does not lead us and that is why I think we need a process that will create a new vision, a new excitement about Canada, that in this process somebody who has real skill with wording can set forth in some language that is challenging and inspiring, some kind of a focus that will provide for a new focus of loyalty for this country.

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

On behalf of the Joint Chairman, Mr. loyal and all members of the Committee, Archbishop Scott, we should like very much to thank you for being here. You have given every member of the Committee a great deal to think about and, as we work our way through the clause by clause study of the resolution, I know we will all be wiser for your being here today.

The Committee has been honoured by your presence; your approach has been refreshing; your contribution insofar as native people are concerned will be most helpful. Your nonpartisan approach to these very important issues I am sure we all found stimulating.

Thank you for being here and giving us this time.

Before I am through, Archbishop, we had many other questioners. Mr. Hawkes, Mr. Fulton, Mr. Berger, Coline Campbell and more, and I appologize to those people; nevertheless, we gave a commitment that we would have you out at 12:00 and we appreciate your being here.

Rev. Scott: May I say two things in closing?

The Joint Chairman (Senator Hays): Yes.

Rev. Scott: There are two comments I would like to make in closing.

One is I think we have to be very sensitive in the wider range of the kind of problems we create for other people. I have not heard much discussion about the situation in Canada, much concern about the situation in Canada for the problem that we confront the British Parliament with if we try to act

[Page 50]

unilaterally in terms of past history. I think there needs to be real sensitivity about that kind of question.

An hon. Member. Hear, hear.

Rev. Scott: The second thing is that in the processes of history some very difficult times arise and hard decisions have to be made and they may not always be the right decision.

I know something of the problem that perhaps government people are facing at the present time. I lived through a particular situation where a process, where union discussions had been going on for a long time, we came to the situation in that where it seemed the process we were embarked on was not going to achieve what we wanted to achieve because the vision that was necessary for that was lacking, and some action was taken that was very painful action to stop that process.

Now, history may judge that action as wrong but it was a very painful step to take to stop a process that was very far advanced, but sometimes in the life of this world, and if we think in terms of space, time and also eternity, maybe a year or two are not as important as sometimes we make them in terms of the Committee’s we are on, maybe we come to a point where some very painful decisions have to be made, to refocus the direction to achieve something that is far greater than we can possibly achieve on the route that we are on.

Thank you.

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

We also thank Archdeacon Hilchey for being and your Chancellor, Mr. Hemmerick, and other supporting staff that are with your group.

For the Committee members we will be meeting at 2:00 p.m. . . .

Miss Campbell: On a point of order, Mr. Chairman, I would like a bit of clarification from the Chair.

Today we did start the meeting approximately 15 minutes late and unfortunately our witnesses could not be with us for the remaining half hour of the time allocated, and I would like to know what the time procedure with our expert witnesses will be, how the ratio of members on the Committee—today we had seven Opposition members, four Conservatives and three NDP, and on the government side we had three Liberals.

Now, I think this matter should be referred quickly to the steering committee and perhaps they could come up with a solution as to how the members are going to divide up when they question their expert witnesses. I would like to question the Opposition’s expert witnesses, perhaps the Opposition would like to question the government expert witnesses tomorrow, but as it stands now one would have to realistically say that tomorrow there will be seven Liberals questionning the Liberal experts, and three Opposition.

[Page 51]

So perhaps the steering committee might like to get together afterwards quickly to come up with how the distribution of questioning is going to go as well as the time allocation.

It was my understanding that we would be five minutes. Most of the questioning after the first round, which was agreed on at 10 minutes, was well over five minutes, and went in some cases on the second round to over 10 minutes and I think that in fairness to all members of the Committee who are sitting here in order to get the questions in, either we start earlier, or on time, or we make a motion at the beginning of each session that there be a limitation on the questions.

Perhaps the steering committee would like to look into that because certainly we are eliminating some questions for people who have sat through it all.

Mr. McGrath: I wonder, Mr. Chairman, if you would excuse the witnesses before we proceed.

The Joint Chairman (Senator Hays): Yes. Thank you very much for being here.

Your proposal to send it to the steering committee, I think we would be pleased to do that.

Miss Campbell: Well, I think they should meet between now and tomorrow morning.

The Joint Chairman (Senator Hays): All right. We will arrange to have that done.

Mr. Epp.

Mr. Epp: Mr. Chairman, on a point of order you recall that yesterday I raised the matter of another constitution . . .

Mr. McGrath: Are we going to lose our quorum, Mr. Chairman?

The Joint Chairman (Senator Hays): Ah, just a minute, the meeting has not been adjourned, I wonder if those members who are leaving would come back. Mr. Epp has raised a point of order.

Mr. Epp: Mr. Chairman, you will recall yesterday that I raised the matter that another constitutional conference is taking place at a period of time when this Committee is sitting. I obviously have no authority, nor do any members, I am sure, want to take that authority to say that Canadians cannot have as many constitutional meetings as they want. That is not the point or the thrust at all of what I am saying.

However, I am concerned. Mr. Chairman, in terms of the process of the Committee, that we are now into expert witnesses and I am pleased that at least we will have a few, while not as many as we had hoped, namely that we had felt that it should be the Committee that should extend the invitation rather than the nomination by a political party to an expert, but that is another matter.

What we have before us now, Mr. Chairman, is that when this Committee will be sitting on Friday morning of this week, in fact to hear an expert witness, at that very same time there will be people involved, who are also involved in this process, in another meeting where there will be expert witnesses as well.

[Page 52]

I think if that is the case, that while again I must repeat that it is not up to me to decide who can have a conference, it is up to me to raise the point that no conferences should be organized almost as a counterpoint to what is happening in this room at this particular time, and I am repeating what I said yesterday, Mr. Chairman, and I said that I would give some time for other members to reflect on my opening remarks of yesterday, I do not intend to keep the Committee any longer, but I feel that the matter is of sufficient importance that other members have a chance to respond.

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

Mr. Mackasey: Well, Mr. Chairman, I must confess I have not given too much thought to the issue, however, speaking very briefly to the whole question of witnesses I think Ms. Campbell has stated very, very pointedly and has given food for thought to the steering committee which I hope meets to see if we cannot approve of all our participation.

It seems to me the proceedings have been going along remarkably well and it has building up to the point of hearing expert witnesses, as nonpartisan people with a particular position in Canadian life that gives them the title without any kind of descent to experts, and it seems to me that we should perhaps review or see what we can do to expand and extend the time the witnesses are here and make it possible for more people not only to participate but to follow up and bring out their ideas.

Naturally there is going to be some partisan positions taken around the table, this is the nature of it, but at the same time I think we are sufficiently interested in drawing out from the witnesses their particular point of view, and I do not pretend to know the answer, I think I do know the answer, I think we have just got to not only expand the time the witnesses are here, but also make it possible for second and third rounds if possible, because it seems to me that the witnesses are the very groups that can strengthen our views, or at least resolve our differences or our individual concerns, and knowing Bishop Scott for many, many years and knowing his political sentiments, the small pay and the philosophical thing, I think the combination is great but there are a lot of things we would have liked to have brought out more carefully.

So I am also concerned, as Mr. Epp is, that whatever occurs Friday will again minimize the importance of the witnesses, the expert witnesses appearing before us. My dilemma is that I do not know what we can do other than express our concern about the scheduling and I just hope as one who does not know, that none of us are directly or indirectly implicated, if you like, in the scheduling of Friday’s event, which is of importance but, in a way, will divert attention away from this Committee, and in a way my concern, Mr. Chairman, which I may not be expressing well, is that my concern is not so much for ourselves but for the witnesses who will be appearing here, who will not be participating group will be on Friday, will not have the full range of expression that the other format or formula will provide, will not be able to be as expansive in philosophy because of the cross-examination, the pointed question, or the partisan questions which we do not apologize for.

[Page 53]

I am very apprehensive and upset in the sense that these things are coinciding. At the same I do not want to leave the impression. the mistaken impression, that Mr. Epp or myself and others look with reluctance upon the participation of these groups of Canadians in this format, it just seems that the site, the format, the date and everything is unfortunate and I just hope that it is not an example of ineptitude on our part because in recent weeks there seems to be some concern on my part, taking advantage of the situation to clear the air, I have been very unhappy as an individual at the number of witnesses we have been seeing in such a short space of time. I do not pretend to know, and my views are equally applicable to whoever in my party is charged with that.

I was enthralled by the 17 different contributions of Indian people, native people, but it seems to me 10 well chosen would have made exactly the same points, and we are here to get information, not provide a forum for all the groups. It seems to me we would have done more justice to the aboriginal people and to ourselves and to Canadians if the time with the 10 had been expanded to the time that we took for the 17.

It seems to me there has been a certain insensitivity in our scheduling if the mark of success is how many we see rather than the depth to which we interview.

I make this point in our dying days if you like, I do not think it is time that we reduce our criteria of excellence, and it is in this light, Mr., Chairman, that I am asking you really to what degree if any will the scheduling on the two groups on Friday jeopardize, impede, restrict our ability to do justice to the witnesses who are appearing. I just feel very uneasy that we are asking witnesses to come all this way on Friday to appear before us, when in fact witnesses elsewhere, more or less, are being given a greater, more expanded and less restrictive form in which to express their views that, perhaps ironically or unintentionally diametrically opposed to those that will be expressed here.

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

Mr. Crombie.

Mr. Crombie: Mr. Chairman, before I can begin my thought on the matter I would like some information if I could.

I do not know what the Canadian study of Parliament groups is. I am sure others do but I do not and I wonder if you could tell me or if you could find out who the group is, who belongs to it, when they established the meeting, what process they went through, that would help me to understand it before I begin my comments.

The Joint Chairman (Senator Hays): Are there any members of the Committee that can throw some light on it? I am not familiar with it.

Senator Lapointe.

Senator Lapointe: No, it is a group of intellectuals, mainly professors, and while they are interested in the functioning of Parliament and I do not know who inaugurated, what the idea

[Page 54]

of setting a conference or symposium on that subject on Friday, but I received the invitation. I did not know that we were sitting that very day and I-intended to go, but if we are sitting here, I will stay here.

But there are many people from Toronto, the University of Toronto, the University of Ottawa, mainly professors and experts like the research people at the Library of parliament and that is it. I think that Mr. Koester, the Clerk of the House of Commons, is the main officer of this parliamentary group. Mr. Koester, the Clerk is the Secretary, I think, of this organization.

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

Yes?

Mr. Crombie: Mr. Chairman, it says Colin Campbell is the President, is that correct?

Miss Campbell: I think that says “Monsieur” in French.

Mr. Crombie: It says “Coline” in print and “Colin” is how it is pronounced.

Miss Campbell: I think somebody must have put an “e” there. I am not up to that professional intellectual ability yet. Maybe I will be after the end of this session.

Mr. Crombie: On the contrary, as Senator Lapointe was talking I recognized you there immediately.

Mr. Chairman, I would like to follow the thoughts offered by Mr. Mackasey, I think that it not only diminishes the witnesses before us, the expert witness in particular, but also we have the group of the denominational education committees from Newfoundland, which probably has the most unique educational system in Canada, if not the western world. And I think deserves full attention from everyone and if you miss it, it is a lifetime experience and you will probably feel very sorry.

So I think not only the expert witnesses, but indeed anybody who comes before this Committee, is somewhat diminished if there are other things scheduled which are on the very same matters that they are dealing with. I think it diminishes the Committee and I think it diminishes the witnesses.

In particular, we had considerable discussion a few weeks ago as to whether or not we, and those who follow our activities, would have the opportunity to hear a number of witnesses and we heard chapter and verse as to why it would be very difficult, given the constraints, to hear a lot more witnesses, and lo and behold!, if I choose not to come to this Committee on Friday I can hear Mr. Lederman, Faculty of Law, Queens University; I can hear Serge Joyal, the Chair- man of this Committee, which I am pleased to at any time of course; David MacDonald, John Robarts, Gordon Robertson, André Tremblay, etc. It is indeed an enviable list and if this Committee would like to really fulfill its role, it ought to be in attendance.

I think that at some point there has to be a solution to this and I would suggest that perhaps we can have them come here, or perhaps we can go there and we could have Mr. Millard

[Page 55]

come at an appropriate time, because I think that we should not be conflicting with either his time or the time allotted to the denominational education committees of Newfoundland.

I feel quite strongly about it. I think we should probably regard our job on Friday as making sure that we are hearing what people have to say, and if we have two forums going on at the same time I think that is inappropriate, Mr. Chairman.

The Joint Chairman (Senator Hays): Mr. McGrath?

Mr. McGrath: Mr. Chairman, I do not want to repeat what has been said, but I think it is important to re-emphasize this point and that is that every witness that comes before this Committee has the right to the undivided attention of this Committee, and it seems to me to be unfair to the witnesses who are going to appear on Friday, the last day of our hearing for witnesses. One of the witnesses will be one of our expert witnesses. We consider him to be a very important witness. Our last witness will be the denominational education committees of Newfoundland.

I might add parenthetically, that that includes by the way, appearing before this Committee, the heads of all the churches, including the Archbishop of the Roman Catholic Church, the Anglican Bishop of Newfoundland, the head of the United Church in Newfoundland, the head of the Salvation Army, the Pentecostal Church.

It would be a grave affront to them, in my opinion, if they came here at considerable inconvenience and expense to themselves considering their mission to be a very important one, if, for example, they did not have the attention of this Committee, the Joint Chairman of this Committee, with respect to your collegue from the Senate who is quite capable of presiding, but we always had our two joint Chairmen present. I think it is unfortunate that this conflict has arisen because it seems to me that we will be competing with this group that will be meeting elsewhere within the confines of Parliament Hill, and perhaps the intentions at the time that the meeting was scheduled envisaged that we would not be sitting on Friday and of course, if that had been the case there would be no problem.

But certainly Friday was our last day and we always held open and reserved the right that there would be witnesses who would be heard, and we had to reschedule one of our two so-called expert witnesses and we were able to arrange for the denominational education committees of Newfoundland to be present.

Now, having said that Mr. Chairman, I do not know how we get out of this, but I would like to refer briefly to what Mr. Mackasey had to say with regard to the whole procedure of scheduling witnesses. It seems to me that there has been a breakdown in the consultative process following the extension of time and during the extended period we have had witnesses scheduled on short notice. We have heard from seventeen aboriginal groups and I am sure that, and I mean no disrespect to any of the aboriginal groups who appeared, they all virtually carried the same message in one form or another.

[Page 56]

We have had a number of witnesses who represented small interest groups, not in a provincial sense, whereas I believe there are still a number of important national groups that could still be heard. I do not know if the Canadian Labour Congress asked to appear; the Anglican Church of Canada; the United Church of Canada. We are going to hear this afternoon from the Roman Catholic bishops of one province, but there has been an injudicious use of our time, in my opinion, and I am not suggesting that that was deliberate in any way.

What I am suggesting is that perhaps we have fallen down on the job somewhere as a Committee in not being vigilant in this regard to ensure that our time was well used and maximized to the extent that it is very limited, limited to the point where we will have to conclude our hearing of witnesses on Friday.

So there are the two points I wanted to make. I am very supportive of what Mr. Mackasey had to say and I would be extremely disappointed, to put it mildly, if the two witnesses that are to be heard on Friday did not have the individed attention of this Committee and its officers.

The Joint Chairman (Senator Hays): Thank you very much Mr. McGrath. Miss Campbell?

Miss Campbell: Well, I think some of the concern started when people got hold of a notice that had what looked like two names of this Committee on it, my name was similar to a “Mr. Colin Campbell”, somebody else in the clan as I have already said. I also saw that notice because it was brought to my attention. It seems to me that there is much ado about nothing, as Shakespeare would say. HI am not mistaken, one member of this Committee was just asked to appear for IS minutes, I think at 9:30 to 9:45. If I looked at the clock today, we did not start until 9:45 with the expert witness today. I just feel it was very reasonable for this group that wanted to talk on parliamentary procedure to ask one member of the Committee to come and explain where the Committee is at this time. I don’t think that that member can do anything more than say what has happened in the last few weeks in front of this Committee, so talking about undivided attention, all members of this Committee have not been here I00 per cent of the time. It is only reasonable to assume that they cannot always be here and I think there are legitimate reasons why they are not here and this is a legitimate reason for one member to be away for 15 minutes during the Committee time.

I do not think it takes away from the concern that this Committee has to hear the witnesses and I feel it is much ado about nothing as to the appearance of one member, and I think a very appropriate member of this Committee, to go and explain where the Committee is. If it does start on time on Friday, I am sure he can read the proceedings within a half hour as to what has taken place. So I think we are wasting a little bit of time on this matter.

The Joint Chairman (Senator Hays): Mr. Mackasey?

Mr. Mackasey: I do not change my views. However, I do believe and I do feel that we have no choice but to go ahead with our Committee Friday, and I think that is the important

[Page 57]

point having aired the thing as you suggested we do. I am quite hopeful that there is no indication from anybody that we not proceed Friday as usual. And I think that is the important point, that really what we are emphasizing is that this is the forum we are interested in. It is important not simply to participants, but to spectators; that our first responsibility Friday if we are going to do justice to the witnesses, especially coming all the way from Newfoundland and others, that Friday this be our priority.

And I do not mean Mr. Chairman, in your case, I do not see any problem, as Miss Campbell suggested, in you fulfilling your functions and I have enough respect for your integrity that your contribution will be an impartial one, stressing clearly your role as the Chairman of a particular committee in the context of how parliament functions. So I just leave it on that note, to say that as far as I am concerned, my main concern is that there might have been any feeling that somehow we should cancel this function Friday and that is something I do not contemplate.

The Joint Chairman (Senator Hays): Mr. Crombie?

Mr. Crombie: This really follows from the comment from Miss Campbell that it is only a question of a 15-minute speech—my understanding, and I would like information if I could, my understanding is that the event on Friday for the Canadian Study of Parliament Group is organized by the Parliamentary Centre, the same as is organizing this body, is that correct?

Some hon. Members: No, it is completely independent.

Mr. Crombie: Then I was misled.

The Joint Chairman (Senator Hays): Anyone else care to make a contribution? Mr. Irwin.

Mr. Irwin: Mr. Chairman, I have canvassed our group and there is a concensus that we want to work Friday. Now, it is my understanding, Mr. Chairman, that you are only going to be away for about 15 minutes and it will not conflict with any of the witnesses that we will be hearing. I see no real problem for Friday. Is there going to be some type of motion coming forth from Mr. Epp? Otherwise, I would like to go to lunch.

The Joint Chairman (Senator Hays): Mr. Epp?

Mr. Epp: Mr. Chairman, I do not intend to move a motion. That was not the thrust of my comments. The thrust of my comments, I think was quite clear. That has also been repeated by Mr. Mackasey. Mr. McGrath and Mr. Crombie. I am concerned that if there are any facilities used on Parliament Hill or its environs that are definitely related to Parliament that there should not be a situation whereby there is another meeting taking place within those same environs at a time this Committee is meeting. That is the point I was trying to make. I am pleased that it has been aired in the manner in which it has.

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

Before you adjourn, we have changed the hour to 2 o’clock and we will be meeting the Ontario Conference of Catholic Bishops at 3:30; the Canadian Life and Health Insurance Association; at 4 o’clock, Mr. Grant Notley, Leader of the

[Page 58]

Alberta New Democratic Party; at 7:30 p.m. the Business Council on National Issues; 8:30 p.m. Mr. Rod Sykes, Leader of the Social Credit Party; and if you can be on time we will have you to dinner at 6 o’clock.

Thank you very much.

This meeting is adjourned.

AFTERNOON SITTING

The Joint Chairman (Mr. Joyal): Order, please.

It is an honour and a privilege, on behalf of the honourable Senator Hays, our Joint Chairman, and on behalf of all the honourable members of this Committee, to welcome this afternoon the Ontario Conference of Catholic Bishops. I am pleased to welcome Bishop Alexander Carter, the President of the Conference, l’archeveque J. Aurèle Plourde, le vice-président de la conference.

As you might have been informed, our usual procedure is to invite our guests to make an opening statement and after invite them to receive questions by honourable members of this Committee, but I would be grateful to you, Bishop, to introduce the other members of your delegation so that we might be familiar with everyone at the witness table.

Bishop Carter.

Bishop Alexander Carter (President, Ontario Conference of Catholic Bishops): Monsieur le président, Mr. Chairman, it is with great pleasure that I introduce Archbishop Plourde, the Archbishop of Ottawa, the Vice-President of our Ontario Bishops Conference. We have Father Durocher here who is the consultant to the Ontario Separate School Trustees Association; Mr. Joseph Magnet, our constitutional advisor and Father Angus Macdougall who is General Secretary, the Executive Secretary of the Ontario Bishops.

On behalf of the Ontario Bishops, ladies and gentlemen of the Commission, I would like to express our gratitude for your courtesy in receiving us this afternoon and giving us this time to make representations on points that we consider to be of great importance to the life of the church, particularly in the Province of Ontario, since we come as the Ontario Bishops representing this Conference.

We have presented a brief which I am sure you have already looked at, and I am not going to read it to you, obviously, and we have presented a short brief. We took the word “brief” in its true sense of being a brief and tried to make four particular approaches or subjects, to express them in a concise and succinct form, feeling that they can be developed if you choose, or as much as you choose, later on.

We are concerned in the impending change of the constitutional status of our country on certain basic rights and needs that we feel, as Bishops, we must express. The first one we touch upon is our position on the dignity of the human being. Certainly there have been some very promising developments so far in the constitutional debates and suggestions and we recall that:

[Page 59]

Everyone, from the moment of conception onward until natural death, has the right to life. Everyone too, innocent of crime, has the right to liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

That is a suggested article that could be ascribed into the constitution of Canada when it is drawn up and finalized.

I am not going to stress this point, you have already had briefs on it and we simply want to express our sympathy and our unity with the brief already presented to the Committee by Campaign Life.

The second one is the rights of the native people. Once again, we are very cognizant of the fact that you have received many, many presentations and briefs on this particular subject. We want to ally ourselves with our native people. The church has been interested, must be interested in the matter of justice for the original inhabitants of our country, not merely because many of them are our co-religioners, but simply because they also are compatriots and they have their own rights in Canada. It was not our position, we do not feel, to try to state these rights in concrete forms going into questions of detail but we do want to insist that in the Charter we have something more than the rather general statement in Section 24.

We feel that Section 24 does not really recognize any basic rights for the native peoples of Canada as it stands, and their rights could be eroded completely by subsequent legislation unless there is something far more pertinent, far more obligatory and binding in the constitution of Canada.

On our third point, we come to a question which is very, very important to us. We realize that in the history of Canada, dating from the union of the two Canadas up to the time of Confederation and then the BNA Act, that certain rights of Catholic schools, denominational schools, were protected by the BNA Act. We are concerned that under the present proposed legislation that these rights might not be protected adequately. Indeed we might lose some of the rights we inherited that are part and parcel of the heritage of our country, if the constitution itself does not enshrine those rights and even perhaps, in certain places where they have not been understood or fulfilled, they could perhaps be even more clearly delineated.

On that point I may say too that we already made representations to the Premier of Ontario with a copy to the Prime Minister of Canada, and the Premier of Ontario has assured us of his complete support in any approaches that we might make to ensure or to enforce the protection of the rights of denominational schools.

That is why we state in our brief that the amending formula requiring the greatest degree of unanimity in the proposed new constitution should apply to the rights and privileges with respect to denominational schools conferred under Section 93 of the original BNA Act. It is under this section and subject to its conditions in general that each provincial legislature enjoys exclusive jurisdiction in the field of education and that defined minorities continue their pre-Confederation denomination schools—this safeguard therefore should be included as a new subdivision of Section 50, that is as Section 50(h).

[Page 60]

The Charter of Rights and Freedoms in Section 24 to apply without prejudice to rights described above, that is our suggestion.

The introduction of individual human rights legislation into the political structure of modern nations necessarily causes some friction where authoritarian regimes have prevailed. So, l am sorry, I am really talking more on human rights, but we are concerned mostly with education and I will come back to that.

Care is usually taken in all instances to avoid direct conflict with national characteristics rooted in historical, geographical, cultural and other experiences of the people. For example, the hereditary nature of the British monarchy is not considered as a case of discrimination against the rights of any Canadian citizen to reach a pinnacle of political power. To avoid confusion, as to denominational school rights, we recommend that a provision be inserted in the Charter of Rights and Freedoms in Section 24, that such rights and freedoms are not to be construed so as to adversely affect the rights and privileges with respect to denominational schools conferred under Section 93 of the BNA Act, 1867.

So on this question of human rights, ladies and gentlemen, although we do not think it is wise to confuse the patriation procedure with introduction of massive changes, we do point out that both denominational rights as enshrined for over a century in Canada’s constitution and human rights as proclaimed by the United Nations would justify a greater expansion of educational freedom at this time.

We insist on maintaining our rights partly because this keeps the door of justice and tolerance open for many others who share our belief in the primacy of religious and parental option in education.

On this point, you realize that our own teaching, the belief that we hold is that the parents are the first educators and that the church and the state help the parent fulfill that basic right that is theirs and exercise the freedom which is theirs by their very role of parent.

Finally, the official languages rights. The Ontario Conference of Catholic Bishops supports the contents of Section 17, Section 18, and Section 19 of the proposed constitutional act.

However, the Conference of Bishops believes that the constitution act should go beyond this, enshrining the privileged position of the two official languages in such a way as to encourage preservation and conditions for growth of either official language when it is de facto, in this or that part of Canada, in a minority position.

We should also like to reiterate our insistence that I just mentioned in a former article, on the legitimate aspirations of any francophone or anglophone minorities in each province or territory of Canada for education of their children in either of the official languages.

We are summing up what we consider to be a step forward, if we see enshrined a basic guarantee of human rights in our

[Page 61]

constitution and the language rights in clear and guaranteed form so that English speaking and French speaking people can be educated in, live their life in and enjoy their culture in their own particular language and culture.

That sums it up, members of the Committee. Now, I have wiser men around me and any time you want to start questions we will be more than delighted to expatiate or to comment on these basic considerations.

The Joint Chairman (Mr. Joyal): Thank you very much, Bishop Carter. I am quite sure that members of this Committee will receive your invitation. In so doing, I would like to invite the honourable James McGrath to welcome and open our discussions with our guests this afternoon.

Mr. McGrath.

Mr. McGrath: Thank you, Mr. Chairman. I would like to join with you in welcoming Bishop Carter and the delegation representing the Ontario Catholic Conference of Bishops.

I think your brief is an important one in that it identifies some of the moral issues of the proposals before us and perhaps I can open my intervention with Bishop Carter by first of all pointing out that we only have a few days left to hear witnesses.

You have come before us as representing the Ontario Conference of Catholic Bishops. There is of course a Canadian Conference of Catholic Bishops and I notice the three areas that you identify as your priorities in your brief, namely the rights of the unborn, education rights and aboriginal rights, have been the subject of statements by your fellow Bishops outside of Ontario as well as the Ontario Bishops and it would be helpful to us if we could establish the fact that in this regard your views reflect the views of your brother Bishops in the Canadian Catholic Conference of Bishops.

Bishop Carter: As far as those first two points go, I would have no hesitation at all. Remember that we have no mandate to speak for the Bishops of Canada.

Mr. McGrath: I realize that.

Bishop Carter: We are speaking for the Ontario Bishops because we have obviously our own concerns but the first two are concerns which have already been expressed in many different ways and many differents forms by the Canadian Bishops over the last 25 years, really. So, I have no hesitation in saying that this is definitely, would you agree . . .

Archbishop J. Aurèle Plourde (Vice-President, Ontario Conference of Catholic Bishops): Agreed.

Bishop Carter: This is an expression that could be said represents the view of the Canadian Bishops, even though I am not presenting it as a view of the Canadian Bishops.

When we get into more explicit points of three and four, dealing with education, as you know that is much a provincial matter, almost entirely, and all that we could talk about is guarantees in the Charter but there now, we are in our own element. This is one of the reasons why we are here as the Ontario Bishops, to promote a basic Charter that will continue to protect and develop the rights that we have and do enjoy at

[Page 62]

the present time in the Province of Ontario and would like to see enshrined in the Charter of Canada because, while we may enjoy a good situation in the province, unless there is some legislation in the Charter, the constitution of the country, we could lose those rights just as easily as not if they are not definitely put into the basic Charter.

Would you like to comment on that, sir?

Professor Joseph Magnet (Legal Counsel, Ontario Conference of Catholic Bishops): I would just say to Mr. McGrath that these are submissions of the Ontario Conference. The Canadian Conference considered presenting its views separately to this Committee but it found that within the time frame that this Committee has set that it was not able to reach views in a way in which it thought it would like to present them. So these are the views of the Ontario Bishops subject to what Bishop Carter has said. that there is widespread feeling in the Canadian Conference on these first two points, that these are points which have a Canadian view and Canadian support.

Mr. McGrath: It is important to us, Mr. Chairman, that we establish that while you are appearing before us today as representing the Ontario Roman Catholic Bishops that your views, in fact, on the two areas, namely the rights of the unborn and the rights of aboriginal peoples, reflect the views of the other Catholic Bishops. I think that it is important to us to understand that in our deliberations because we will not have an opportunity to have the Canadian Catholic Conference here.

This morning, before I get into one or two specific questions, Mr. Chairman, this morning we had before us the Primate of the Anglican Church of Canada, Archbishop Scott, and he had a very useful presentation and, indeed, a very helpful presentation.

I should add, by the way, that he was not appearing as Primate. He made it very clear that he was appearing not on behalf of the Anglican Church of Canada, but on hiw own behalf, but he was very concerned about process, the process of the constitutional amendments that we are involved in at the present time and you have alluded to the fact that there was not sufficient time for the Canadian Conference of Catholic Bishops to make a submission.

Have you found yourself handicapped, or do you feel, let me rephrase, do you feel that there should be greater time in order to ensure that some of the important moral issues such as the right to life and educational rights, aboriginal rights, the three specified in your brief, can require much greater scrutiny and we can be the beneficiary of much greater citizen input, because when we conclude our proceedings here on or before February 6, the process of involvement ceases in terms of there will be no other avenue or forum for the Canadian people to be involved, either through their organizations or individually.

Bishop Carter: The other thing is, I do not know whether we are in a position to make a judgment on that. You people have been sitting now for quite a while. You would be better able to evaluate whether or not the ground has been covered than a delegation coming from the Ontario Bishops. I do not think that I would want to make that judgment because I do not

[Page 63]

have the facts, I do not know where you are at at the present moment in having enough information and soundings of the country and opinions of the country may be adequate. I do not know, I do not think I could answer that.

Mr. McGrath: As a matter of fact, Bishop Carter, we really do not know where we are at at the present time. That is part of our problem. But in Archbishop Scott’s presentation this morning, and I just state this for the record, he quoted Prime Minister Pearson in 1968 when he said:

If a mistake is made in an ordinary statute, it can be remedied at a subsequent session of Parliament or the legislature but a constitutional error may be almost irrevocable and the consequences serious in the extreme. The fundamental law is indeed fundamental and its examination and review must be so treated.

I use that in support of the position you have taken, for example, on the right to life. What we do here could have great consequences on the rights of the unborn. We now have a law which many of us feel is unsatisfactory and I am hoping you will address yourself to that in terms of the present provisions of the Criminal Code which have seen a sharp rise in the rate of abortions across the country. The bill we have in front of us does not in fact address itself to this issue.

Indeed, there have been groups that have appeared before us who have expressed concern that the use of the term “everyone” as opposed to the term “persons” could have grave implications for those who feel that the right to a therapeutic abortion is a right that supersedes whatever rights we may feel the unborn child may have.

When you consider that whether or not we change the term “persons” to “everyone” we have no way of knowing how that will be interpreted by the courts, because the argument holds that by putting the term “persons” in there as opposed to “everyone”, that is conforming with the provisions of the Criminal Code which I believe defines the person in terms of the abortion provisions of the Code as when a child becomes independent of its mother.

As medical testimony before this Committee has indicated, we have made great advances and there is now a whole new area of medicine that treats the unborn child and recognizes the unborn child separately of the mother as a person and, indeed, we have evidence before us that the unborn child can be removed and made independent of its mother and can be restored to dependence on its mother and therein lies an anomaly because when the child is removed from dependence on the life support system of its mother, it then becomes a person, but yet that person’s life can be taken away.

Bishop Carter: One reason, sir, why we wanted something specific about the rights of the unborn child, by the way, that is not a Catholic position alone, I do not like this attempt to make it a Catholic position. It is not.

As a matter of fact, if you go back to Roman law, you will find that the unborn child could inherit property in the jus Romanum which pre-existed Christianity. So, in front of the

[Page 64]

genetic possibilities that we are going to face in the next few years we are really alarmed at anything that opens up a freedom to destroy life and destroy life of the unborn child.

Once again, we are talking about a Charter, we are not talking about every individual case that can arise or conflicts of rights. We are just talking about basic Charter and we would like to see in that basic Charter a statement protecting the rights of the unborn child. If we had that, certainly it would be very hard to have the number of abortions which are being performed today. Under whatever name you want to call them, they are still abortions and they are still taking away the life of an unborn child.

Mr. McGrath: Which speaks to the adequacy of the jus law, and perhaps your counsel may want to address himself to that.

Bishop Carter: Yes.

Professor Magnet: I would just like to add to that, Mr. McGrath, because I am impressed by your remarks that this is a constitution we are making. This is not the Legislative Assembly of Ontario or the Parliament of Canada, it is a constitution that we are making.

What is the position in constitutions of the rights of the unborn child? Well, every country in the world with one exception that has dealt with this question has found that the right to an abortion, if that is a right, is something which should be debated in the political forum by the political authorities at the local level. We are now talking about a constitution.

In the United States, the right to an abortion, as you have referred to it, is a right which has been given by a constitutional doctrine over the heads of the people. We have no doubt that the vast majority of the American people do not support this and there is a growing and large movement in the United States to reverse this by constitutional amendment.

Our position is that we do not think the right should come from the constitutional doctrine and we simply want to make it clear that in this country, unlike the United States, there is to be no right to an abortion enshrined in the constitution.

Mr. McGrath: Except of course, whatever we enshrine in the constitution will be subject to interpretation by the Supreme Court and it was that very interpretation of the US constitution by the Supreme Court of that country that opened up the whole right to abortion which is part of the concern we have here in dealing with the Charter, and I might say on a procedural or basis or process, some of us are concerned with the haste, because the consequences of what we are doing, as Mr. Pearson said so eloquently back in 1968, are so far reaching that I do not think we realize what we are doing.

Professor Magnet: The submission of the Ontario Conference of Bishops on this one is quite a narrow submission. It is simply that we want to forestall in Canada any application of general words to create a right to abortion. That is all. It is a very narrow submission.

I am sure that if you were to have told the authors of the federalist position in the United States or to have told even early members of the Supreme Court in the United States or any of the constituent assemblies in the United States that

[Page 65]

when they enacted the ninth amendment to the United States’ Constitution they had thrown up a penumbra which permitted a right to abortion, they would have been shocked.

We simply are taking the position that we do not want this document to have such a broad penumbra which would grant rights. If you would like to create such a right, perhaps this should be discussed in the political forum. We would not agree with it but we certainly do not want the interpretation of the broad general words of this Charter to walk about creating rights which this body does not foresee. So our submission is narrow here.

Mr. McGrath: Yes, except that it has broad implications in terms of interpretation subsequently by the courts. I am sorry, my time has expired but I wanted to touch on one of the other two points of your brief, and that is the one dealing with education rights, the rights of separate schools as presently spelled out in the British North America Act in Section 93.

Could you perhaps take a few moments to elaborate on your concerns in this regard, how you feel the present measures would impact on the right of, say, the Roman Catholic Church in Ontario to separate schools and have the separate schools of course funded by the state.

Bishop Carter: I would like Archbishop Plourde and perhaps Father Durocher to comment on that, if you will, sir.

[Translation]

Reverend Father Raymond Durocher (Expert Researcher, Conference of Catholic Bishops of Ontario): The problem we have is that the right which is presently recognized in our constitution not be put in danger by other rights that are being asked for presently in the new constitution; in other words those rights might threaten the existence of our separate schools or Catholic schools. That is our only concern and we would like to ask the committee members to see to it that other rights which might be asked for not threaten the right which is presently recognized by the BNA Act in the matter of our Catholic schools. We believe that those schools, of course, should be financed by taxpayers. We believe at the present situation in Ontario is not equitable because companies’ monies cannot go to separate schools and I believe that is a denial of a right and that is a form of discrimination. However, those are perhaps things that should be seen to at the provincial level. What really concerns us, in particular, is that that right be recognized.

As it is up to the provinces to specify the use of that right, we will be making recommendations at the provincial level insofar as its implementation is concerned.

[Text]

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

I would like to invite now Mr. Nystrom, followed by madame Coline Campbell.

Mr. Nystrom.

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

[Page 66]

I want to also welcome the Ontario Conference of Catholic Bishops before our Committee this afternoon and to ask them questions in two other areas. Mr. McGrath has questioned you in two areas already, the denominational schools and the rights of the unborn and I would like to switch into two other areas, one is the area of linguistinc rights, as you have made some comments about that,

[Translation] and I agree that language rights are very important in our country and that, for Ontario, where there is quite a number of Francophones, the language rights should be entrenched in the constitution and I would like to put the following question to you.

[Text]

So you said here that you thought that there should be a further extension of the growth of the official languages whether in a minority position than as outlined in Sections 17, 18 and 19 of the resolution before us. I wonder if you can tell us what you are thinking of here. Are you thinking of the extension of Section 133 for example of the British North America Act to the province of Ontario. Are you thinking of anything in addition to that and if so could you please elaborate.

Rt. Rev. Plourde: I think that you must realize that in fact there is no guarantees for the language rights in the constitution so far for French minorities.

Not only the consideration does not protect our language rights, but it can take it away as have been proven in the past, for example, when we tried to have religious education in French beyond grade 10 which existed before the consideration under the Union which had not been recognized by the Confederation and denied by the jurisprudence.

So, in fact, what kind of guarantee do we have, actually, in the French language for minorities like the Franco-Ontarians for example; we have nothing.

I am not at all sure that we could not argue a point here and say that when the Fathers of the Confederation said that our denominational rights would be recognized if implicitly they did not have the intention of ensuring the language rights as well, because, among the French group, French and Catholic was synonymous at that time. And when we talk about French schools they were necessarily Catholic and when we talk about Catholic schools for the French they were necessarily French, of course.

I think that the language rights could have been interpreted that way but the jurisprudence in Ontario did not do that, and they opposed it. So we have that strange school system where we have at the first level we have the religious right being recognized but not the language rights for the elementary schools.

We have, because Ontario can create, the legislature can create rights, they have acknowledged the rights of the language rights at the secondary level but not the religious right, so we have that system which one part of the system acknowledges or recognizes religious rights, the other part only lan-

[Page 67]

guage rights. What we want, we would like to have both religious and language rights recognized from 8 to 13 so that the parents who are the first responsible for the education of their children would really have those children educated according to their own conscience, and if there are now in a pluralistic society French people who do not belong to the Catholic faith, they could have their children educated in their language but they would not be forced to educate them in a denominational school.

Mr. Nystrom: Now, as to what article this refers, perhaps one more question here, you made reference to, if I recall, people being able to educate their children in the language of their choice or their conscience. That also applies I suppose to non-Francophones who may wish to educate their children in French. In other words, you would like to see enshrined a freedom of choice in the constitution.

Rt. Rev. Plourde: Exactly. Right.

Mr. Nystrom: Now, perhaps I will ask your distinguished legal counsel to comment on whether or not he thinks it is wise men to extend Section 133 to Ontario.

Professor Magnet: The Ontario Conference of Catholic Bishops supports the extension of Section 133 to Ontario.

Mr. Nystrom: Okay, was there anything else in language rights?

Rev. Durocher: I would just like to add a point, having been engaged in school battles in both Manitoba and in Ontario where the situation was quite difficult.

Reading back parliamentary debates, very much like these that are taking place here, in 1865, I think it is very useful to do that and I hope when they look back at your debates they will say the same thing.

There was no intellectual or principled approach to the question of religious education or demoninational education.

It was not a question of the churches being established in Britain and therefore there should be some establishment here. It was purely a political decision.

If you were to read the debates, you will see that someone got up and said, “We, English protestants” not distinguishing between protestants and English. He said, “We, English protestants, are very well taken care of now; but we are not sure we are going to be well taken care of in confederation, because the Lord knows who is going to be in the majority.” Therefore, he said, “We want guarantees of things now which we thought we would be getting eventually anyhow in Quebec.” And he laid down two or three guarantees.

But the decision to do that had nothing to do with some position about religion or some position as regards language.

They did not say that churches and state be separate. Nobody thought about that. They said: “What do we have to

[Page 68]

do in order to get a Confederation?” There is in this country a long tradition of this kind of school, and it is very much adhered to at the present time and these people are not going to go into Confederation unless they have some guarantees that these things are going to be continued.

So it was decided that the denominational schools, in that case are meaning protestant English school in quebec, would be guaranteed and they would have two or three extra things over the market, as they say in French, to sweeten the pie a little bit.

It was a purely political decision, a judgment about the things which are very important at that time to Canada.

There was no guarantee for the language at that time because it was not a problem.

When Mr. Cartier got up he said that somebody mentioned the dissentient English schools, and he said that there were no such schools in this province, that there were no dissentients; that there were was no right right of dissent on the ground of languages, because’ there was no problem. Those who spoke French went to French schools. Those who spoke English went to the Protestant.

But that did not mean it was not an integral part of Canada which they were putting together.

If I may return to one of Mr. Crosbie’s questions, I think he said something about when do we stop looking into this question and exploring it.

Some hon. Members: It was Mr. McGrath.

Rev. Durocher: I am sorry.

But what I would like to say is this. If confederation were being debated today, there can be no doubt in anybody’s mind that French would be entrenched. There can be no doubt about that, because there would be no Canada. That is exactly the argument which took place with regard to religion a hundred or so years ago and one which is still valid today.

We do not want any religious wars in this country. We have a very good system going and we might as well keep on improving it.

I believe that Archbishop Plourde leans in in that direction, that it is one of the integral parts of Canada. It was not entrenched at the beginning because there was no problem at that time.

But now that we have grown and we have more problems, I think it is just as important to have entrenchment of the French as it is to continue entrenchment of the denominational schools.

Rt. Rev. Plourde: Could I add just one word to a matter raised by Mr. Nystrom.

I would members of this honourable Committee to understand well that when we ask for the entrenchment of rights for denominational schools, we are not going so because we want the schools to uphold the principles of our Church. We are not asking members of this Committee to recommend denominational schools becaue we want to help the Catholic Church. We are not seeking any favours for the Catholic Church.

[Page 69]

When we ask for Catholic schools, it is because we think that there are values in that type of teaching which is going to be of use to society as a whole.

Our stand on Catholic schools stems from the type of men and women we want to produce for society tomorrow so that society would be a better place to live in.

We are working and asking for that for the benefit of society and not for ourselves.

We are still being accused—and I think that is very back- ward—in certain quarters that we are doing this just to safeguard our Church and to produce vocations of priests.

I want to make sure that our position is well understood, that when we claim to have the right to denominational schools, we are simply asking the right to exercise our best contribution to the well being of our society.

Bishop Carter: Mr. Nystrom, you will note that in part 4 of page 9 we are reiterated what was said on the rights of denominational schools, and that was to underline the fact that we believe the denominational school rights and language rights become one.

That is why we took the trouble to reiterate in fourth article what we had already said generally in the third.

I think that ties up the question of the denominational and language rights in relation to the problems we face right now in Ontario and which we are trying to settle in this province.

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

[Translation]

Miss Campbell followed by the honourable Jake Epp.

Miss Campbell.

[Text]

Miss Campbell: Thank you, Mr. Chairman.

I would like to continue on the official language rights, and you are suggesting on page 9—and I do not think it has been brought up yet; however, it speaks of in such a way as to encourage preservation and conditions for growth of either official language when it is de facto in this or that part of Canada in a minority position.

would you like to define “de facto” there as to percentages for the Committee. I think most people on the Committee would like to know if you have put a percentage there.

Bishop Carter: No, Miss Campbell. We did not. We did not precisely to avoid being caught in a numbers game, because we thought “de facto” meant that you had a right that is possible but it should be implemented.

In other words, basically every English speaking and French speaking person should be able to express him or herself and live their lives and culture and be tried in courts and be educated in their own language,

If you have that in the charter, the only way the province or other authority could escape fulfilling the charter would be if there was a question of some impossibility, thinking in terms, for example, of a family somewhere up in the bush where it would be an impossibility.

But if you start saying “where numbers warrant”, then you open a wide gate. A legislature could say you have to have 500

[Page 70]

children before you open the school or something like that, and it could go on for ever and become a game. On the other hand, if you have a basic right stated, the onus of not fulfilling that chartered rights is on the authority which does not do it, and it gives the people involved an opportunity to go to court and to go to the judge and say, “Look we are asking for a right which is in the charter, the constitution of our country and it is being denied us.”

Well, if you arguing from the point of view of one person, that you possibly can not build a school for one child perhaps, but if you arguing that people do not want to give you a school in English or French, then you have a weapon whereby you could vindicate your rights before the courts where eventually the matter would have to come in any case.

Miss Campbell: I tend to agree that the ideal is probably what you are stating, Bishop Carter.

But if you take Ontario and say, “Yes, courts, education, and all linguistic rights should be extended to the minorities because they are in a de facto position,” if you look at the percentages in each province you will find that Ontario has 5.6 per cent of the population according to the 1976 consensus; Prince Edward Island has 5.5 per cent.

If you are going to look at percentages the same rule would have to be applied across the board. If you look at the English in Quebec it is 12.8 per cent. The question arises, what balance do you arrive at. Where do the rights come in?

Professor Magnet: We think it is the principle that is important. We think that the principle that Section 133 should be extended to Ontario is important. It does not rest on a numbers test.

And indeed, in most submissions before this Committee, the groups who have appeared did not take the position with respect to official language rights at Sections 16 to 20 that there should be a numbers test, save for the special case of Section 20; and we join and support that submission.

Now, on the separate question of minority language education rights, the proposed resolution, as drafted, fastens on a numbers test. We are not impressed with a numbers test. We are impressed with the principle, with the freedom of choice in minority language education rights. I think Mr. Mackasey would agree with me here, and, indeed many other groups which have appeared before this Committee have taken that position—the positive action group, for example, is one.

That is our position.

I think the point that Bishop Carter was trying to make, and made very well, and which I would like to re-emphasise is this. if you take a numbers test and make the right fasten on the numbers test, the difficulty is you would then have to answer at the legislative level precisely the kinds of questions you are asking. But we do not think these should be asked at the legislative level. We think the right is there. The implementation of that right is at present unforeseeable.

[Page 71]

Supposing, for example, that we gave freedom of choice in minority language education rights across the board, and we have a French speaking family in Northern Manitoba in a predominantly English area that demands a French school, it may be that the implementation of that right would not warrant a school, and it may be that the implementation of the right may not warrant a classroom; it might be that that right could be satisfied at the parents’ option, sending their child to St. Boniface, if the parent so desires; in any case the onus would be on the legislature to make provisions to satisfy that right, and if the legislature takes steps which, in the opinion of the person entitled to that school, were not sufficient, then the courts can be called in.

That is the effect of our submission and how we think it should be implemented.

Miss Campbell: I have a number of other questions on your brief. One concerns aboriginal rights. You have presented us with a text, Section 24(a) on page 5. My quick question is, have you had any consultation with the aboriginal people of Canada in relation to your clause as such? Yes or no? Because I only have a short time available to me.

Professor Magnet: The answer is yes. This church has had long and enjoyed close ties with the native people.

I would like to note also that the effect of entrenching whatever aboriginal rights may exist, including the right flowing from the Royal Proclamation of 1763, treaties and aboriginal titles to land. that is a submission which this church supports and it is joined also by the Canadian Jewish Congress: see the proceedings of this Committee number 798; by the Canadian Human Rights Commission—Mr. Fairweather; see proceedings number 412; by the Federation of Civil Liberties, by the Inuit Committee on National Indians and by the Native Council of Canada.

Miss Campbell: For somebody who earlier today was talking about time, I really only wanted to know if you had consultations, because most of the groups who have come before us are supportive of this; but you have presented us with a precise amendment, and I wanted to know if that amendment was in consultation with the aboriginal people of Canada and you say yes.

Now on denominational schools, one quick question. What is the percentage of children in Ontario starting school under the separate school system?

Rev. Durocher: The separate school system of Ontario educates 35 per cent of the elementary pupils of the province of whom 95 per cent of the francophone children are in the schools too.

Miss Campbell: In Section 15, under the present proposals, we have the right of religion. If you look at Section 1, it talks about “reasonable limits”. Now, if you have a women’s washroom, it seems to me it is in reasonable limits of the job description that it be a female attendant.

[Page 72]

Similarly, if you have a separate school board it seems to me to be within the reasonable limits of religion that you hire a teacher of that religious belief.

I think there is a fear that you are going to lose these rights. It seems to me one has to be reasonable in looking at a Charter of Rights.

If you look at what the Human Rights Commission proposed about Section l5, which was a straight statement, and Section I which allowed the courts the final say on looking at reasonableness, would that interpretation not allay your fears as to the rights to denominational schools, along with Section 93, the rights to denominational schools at the time of union?

Rev. Durocher: Well I am glad you brought that example up. The Ontario Human Rights Commission has now proposed a very considerable rewrite of the existing legislation and have agreed with us that the usual protection accorded to religious groups is not sufficient to be adequate for constitutional purposes.

So the bill has been brought forth, and they are going to add a clause to the effect that none of the provisions of this act are to be construed in such a way as to be in conflict with the rights and privileges of separate schools which are decreed in this province.

So that we would not have to have recourse to the natural or group rights as a denomination which other people might have. It is recognized there that there is a constitutional guarantee and that the Human Rights Code of Ontario is subject to that constitutional guarantee. That is what we want to have put in this Charter.

Miss Campbell: Thank you. You are talking about a particular province. I am talking about a general statement of the right with the reasonable limitation clause, Section 1—and that has had a lot of criticism.

But it seems to me that overall where you have been given a protection of denominational schools under Section 93 and where it is a provincial matter under Section 93 ultimately the education in the province—does not that Section under a Charter of Rights and Freedoms protect you under that reasonable clause?

Rev. Durocher: You are introducing a Charter of Rights and you are giving it priority or primacy over everything else. it changes the situation in regard to guarantees in Section 93, because Section 93 then becomes just one of the provision of that constitution and which actually could be subject to the Charters. That is why we think the situation is being changed to the detriment of the guarantees we have at the present time.

There should be some clear statement that the new Charter which we most heartily approve is not to be construed as to limit the rights which we enjoy at the present time.

Professor Magnet: Miss Campbell, if I understand your question, you are asking whether our view is that the protection given to denominational school rights is furthered by Section 1?

Miss Campbell: No. Well, we may not want to discuss that. I was saying that under Section 15 in the proposal—and there

[Page 73]

are amendments coming; and I tend to like the Human Rights proposal for Section 15 giving equal rights; but regardless of that, under Section 15 it says that one of the freedoms is the right to religion. If you look at that and relate it to the reasonable limitation, then for a person to say that it is not part of a job description in a separate school system that the provision of the requirement under the separate school system would be covered. I do not know if you understand what I mean.

Professor Magnet: Well. if I could just add a word or two to that, I do not think so. The reason is that the right of Section 15(1) is a right to equality before the law without discrimination because of, inter alia, religion.

That is an individual right. The right which this Conference has been concerned about and made a statement on is the collective right of religious schools which is not found in this Charter, but is found at Section 93 of the British North America Act and at the equivalent provisions for provinces entering after Confederation.

So, our concern is that Section 93 might be modified— which is a collective right—might be modified by some of the individual rights in this Charter.

I could see that Section 93, the right to denominational schools, might come into conflict with the very section to which you have drawn our attention—Section 15. Might not a teacher in a denominational school say that if he does not qualify denominationally to teach in that school. he is being denied the right to equality before the law without discrimination on the basis of religion? I think he might well say so.

But our concern is that it would be intolerable that we should have a constitutionally protected system of denominational schools without the ability to enforce the denominational character of those schools.

Our concern, therefore, is that the individual rights which are in the Charter do not impact to the detriment of the collective right in the existing constitution of Canada, in Section 93 and the successor sections.

Miss Campbell: Having said all that, just one quick matter. There is jurisprudence in the United States for my position.

Professor Magnet: But the jurisprudence in the United States to which you refer arises under a constitutional guarantee to nondiscrimination and also to a constitutional guarantee which prevents the establishment of religion.

In this proposed resolution there is no antiestablishment clause, and therefore, it simply reflects the Canadian theory which has been true throughout the history of this country that the basic Confederation pact protects certain denominational reasons. Indeed, you might say establishes, but certainly we would not think an antiestablishment clause would be possible in Canada.

The Joint Chairman (Mr. Joyal): The honourable Jake Epp, followed by monsieur Corbin.

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

I would like to concentrate on two areas, Bishop Carter. One area is the right of the unborn to become. Section 206 of the

[Page 74]

Criminal Code defines a human being. It says that a child becomes a human being within the meaning of the Act when it has completely proceeded in a living state from the body of its mother—and then there are other criteria.

You, do I take it, quite apart from the Criminal Code. would want to extend the definition of a child to the moment of conception?

Bishop Carter: That is right.

Mr. Epp: You also mentioned in your brief, Bishop Carter, the position of Campaign Life. Campaign Life has not been before this Committee. We believe they should be. We will be suggesting to other members that, in view of the fact that Campaign Life was to appear but did not have an opportunity to do so because of the scheduling mix up that they should in fact appear; we would be moving in that direction because it is important to hear their testimony.

We have heard from two other pro life groups. but Campaign Life as such has not yet been heard from.

We have heard arguments on both sides, one, that Section 7 in fact protects the life of the unborn and in fact those who are in favour of the provisions on abortion in the Criminal Code, in fact, would like to see it expanded, that Section 7 could remove the decision on therapeutic abortions through hospitals that have therapeutic abortion committees.

I take it that your interpretation of Section 7, left up to the courts, could in fact remove the right of life of the unborn.

Bishop Carter: That is right. So does Campaign Life. I took it for granted, because I read their brief. The brief was sent to us.

Mr. Epp: No, the Alliance for Life has appeared and the Coalition for the Protection of Life; but we hope to hear from Campaign Life and we hope to have that, possibly, on Thursday.

Rev. Macdougall: I have been in touch with them and that is a very point—number seven as it stands is a bit too vague and would depend a great deal on the interpretation of the courts, and it especially in any rearrangement in the constitution concerning a new Charter of Rights and if we go to the Supreme Court for a decision, well, you know what has happened in the Supreme Court in the United States in this matter, it becomes really a moot question for us.

Mr. Epp: That is why it is a matter of concern to me, because the Supreme Court of the United States made a constitutional decision, as I see it.

Rev. Macdougall: That is right.

Mr. Epp: And that is also the burden of the brief of the Campaign for Life and that is why it is important that they be heard by this Committee.

We will try to see if we cannot make some arrangement, possibly on Thursday.

The other Section is that the denominational schools—what we in Manitoba call the private schools I would like to tell you,

[Page 75]

Father Durocher, that that period of history in my own province on private schools is not a very right one, and it is not one that I feel very proud on, quite apart from what were called Catholic schools, those of us from other religious denominations did not stand up for the principles that we thought these schools were based on at the time they were removed, and possibly we should have joined a lot earlier in defence of the principle of separate or private school than we really did.

But, I do believe, sir, possibly that there have been some remarkable changes in the Province of Manitoba on private schools, largely started—the redress was started by one of the members of this Committee, Senator Roblin at the time when he was Premier of that province, and that work has continued in a nonpartisan way with the former premier who is now the Governor General of Canada and the present Premier.

So I think it is also important to look at it in terms of the evolutionary process and the recognition and the redress of that history.

While it is important to remember history, it is also important to remember what is the present political will in a given area.

That being the case, do you, gentlemen, have any statistics available to us in terms of schools that have come under different names. They are called separate schools, private schools, in fact a universal term which is now being used is “value schools”.

Mr. Epp: You have used the word, though not in terms of a caption, that “value schools” are becoming important in many parts of the country, the idea being that parents, by these means are recapturing the rights they felt they always had to determine the training of their children.

I would like to ask you what is your assessment of the Canadian scene, especially as it relates to Section 93, keeping in mind the reality that we all face that education is under the responsibility of the provincial governments and the problem of imposition by this Commission, through the parliamentary process, is very difficult.

Rev. Durocher: I am glad you made your remark about Manitoba, because I spent nearly twenty years there. Just before the meeting began I had the privilege of recalling to Mr. Duff Roblin that he planted the acorn that has borne fruit recently. It takes a long time sometimes, but it encourages us in the present troubles as you know.

I think you are perfectly correct in placing your finger on what has been called “value schools”.

To give you an example of how it is spreading, there is a complete survey of the secondary school system in this province going on at the present time.

One of the main questions which is coming to the fore, not only on the part of those people making presentations, but also on the part of people representing the government, is the voucher system. The voucher system in the States is the means by which parents will be able to send children to the school of

[Page 76]

their choice and not be penalized completely for that choice. It is very amazing that it should have aroused some much interest and support in the Province of Ontario which in the past has run a monolithic school system. It is breaking up in many, many ways.

I would like to call your attention to the fact that under the present constitutional arrangements, any province is free to create a Jewish school system, if it wishes, or a Christian reform school system, or even an atheistic school system—and that came up in Manitoba with the only limit being placed that subversion was ruled out, whatever that means.

But I agree with you that there is a great deal of interest across the country, shown in Manitoba, for instance, by the recent grants to private or independent schools, and of all things, British Columbia pioneering the granting of money to independent schools or private schools.

This has something to do with the approach that we take to the constitutional guarantees that exist at the present time, that they are not only to be entrenched, but they are to be entrenched as a basic platform or plank of departure towards a much broader sharing and freedom of education by parents of children in province and country.

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

[Translation]

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

Mr. Eymard Corbin now has the floor, followed by the Honourable David Crombie.

Mr. Corbin.

Mr. Corbin: Thank you, Mr. Chairman.

I would like to welcome a famous native of the Republic of Madawaska, His Excellency Monseigneur Plourde. The republic has given Ontario a number of bishops, and we are proud of them. I have a question for Monseigneur Plourde.

A few moments ago he referred to the financing of separate schools in Ontario. One point he mentioned was that it is difficult for separate schools to obtain financing beyond the tenth grade, I believe.

A number of groups which have appeared before this committee, including ACFO, have recommended that we broaden educational rights in the minority language to include secondary schools, community colleges and universities.

Does your group agree with this point of view, Mr. Plourde? Would you be prepared to recommend steps designed to achieve this objective? Of course, I have not forgotten that you said that some things can or should be settled at the provincial level.

Would you comment on this?

Monseigneur Plourde: Obviously, principles do not cease to apply at grade 10 or grade 12. If we are talking about a principle or a fundamental human right, it must of course

[Page 77]

apply as long as the person is alive. Therefore, if we recognize that francophones have a fundamental right to education in their mother tongue, this right extends beyond secondary school. I know that this matter has not been discussed by the conference, but I know the Conference of Ontario Bishops well enough to say that they would definitely support such a position and advocate that the right to education in French be guaranteed beyond the secondary level, to the community college and university level.

Mr. Corbin: I have another question, Mr. Chairman, which relates to comments we have heard so far. Other members of the committee have already asked all the other questions I had.

With regard to the right to education in both official languages, would you go so far as to recognize the need for schools in which French or English, would be not only the language of instruction but also the language spoken outside the classroom? Do you subscribe to the principle of homogeneous schools, which are currently being set up in New Brunswick?

Monseigneur Plourde: Definitely. In the case of Ontario, since we speak for Ontario, the two languages should be recognized and given equal status.

Canada has two official languages. While in Ontario we may represent only 5.6 per cent of the population, there are nevertheless 400,000 of us. In other words, I personally favour schools where French would be compulsory, just as English is. I think it is rather illogical to set up French schools for francophones and then to make French optional in such schools.

Of course, I think that generally students take French, but legally speaking I think it is illogical. I would therefore advocate that French be recognized as the compulsory language of education for francophones, and, of course, that events outside the classroom also take place in French. After all, a school is not French merely because it offers courses in French.

Mr. Corbin: Thank you, Mr. Chairman. Those were all the questions I had.

Thank you, Monseigneur Plourde.

The Joint Chairman (Mr. Joyal): Thank you for your co-operation, Mr. Corbin.

The Honourable David Crombie now has the floor, followed by the Honourable Bryce Mackasey.

Mr. Crombie.

[Page 78]

[Text]

Mr. Crombie: Gentlemen, I would like to congratulate you first of all on a very excellent brief and to say how pleasant it is to see you here this afternoon.

This morning my good friend Mr. Mackasey indicated an offer to the Primate of the Anglican Church of Canada, offered himself as a devil’s advocate, which I thought even for him was beyond the bounds of intrepidness if that is an english word. Let me if I could offer myself in the same spirit.

I am particularly interested in the comments you made with respect to language rights in the Province of Ontario. As I understand the thesis that you pose, it is that, at least in terms of its legitimate social history in the Province of Ontario, the basis for the legitimacy of language rights rests primarily, fundamentally with the notions that we had then and do perhaps have now in relation to religious rights, that indeed they both at that time flowed together and did not continue to flow together and that this may be an appropriate time to have them flow together again. That I gather is the fundamental thesis.

In that connection, to have them flow together again, you offered, I gather, two thoughts or two pieces of action: one is contained in a recommendation on page nine that we should encourage the preservation and conditions for growth of either official language when it is de facto in this or that part of Canada in a minority position.

That does not limit it to educational rights, it does not limit it even to legislative rights or court rights, indeed if you go through Claude Ryan’s paper he identifies I think about seven areas, access to media and so on and so forth.

My particular concern, and I am going to leave the educational rights alone, I think there has been very adequate discussion on that, I might say as a person who was involved to some extent with a very large municipality in that province I well know the difficulty there is in terms of administration of an educational system given the current state of legislation, but I want to deal with rights as you see them in relation to the legislature and the courts.

The Solicitor indicated quite clearly that what he wants to do or thinks ought to be done is extend Section 133 to include the Province of Ontario. I have two questions: one, what does that mean in real terms to people’s rights? What does Section 133 mean, and I say that advisedly because of the kind of glibness that we all understand what Section 133 really is and we tend to assume that Section 133 and Section 23 of the Manitoba Act of 1870 say the same thing, and indeed what happens in Manitoba is the same thing that happens in the Province of Quebec, and indeed there has been an even history in the Province of Quebec in understanding what Section 133 means to them, so my first question to you is: what does Section 133 mean to you, what rights does it confer or restore?

Then my second question is whether or not you see that that should be extended beyond the Province of Ontario to other provinces in Canada?

Professor Magnet: Well, let me take your first question first What does Section 133 mean? Section 133 in its terms

[Page 79]

gives a permissive right to the use of either official language before the courts and the legislatures, that is pretty narrow and that is what is meant until, or that is what it meant in 1867.

Now, that has been commented on judicially, most recently by the Supreme Court of Canada in the Foray and Blaikie cases, and in Foray and Blaikie the Supreme Court of Canada said Section 133 contains a principle of growth, and it has grown in the hundred plus years of Confederation now to include statutory adjudicative agencies of a quasi judicial nature.

Mr. Crombie: Can you give me one or two just as a guide to the slope? What do you mean by a quasi judicial nature?

Professor Magnet: A quasi judicial tribunal, an administrative tribunal like the CTC or the CRTC that is established by statute and administers comprehensive pieces of legislation and affects rights, privileges and expectations of individuals.

The Supreme Court of Canada has said such tribunals are now bound by the dictates of Section 133 and cannot avoid its discipline.

Now, further litigation is pending before the Supreme Court of Canada to clarify the ruling in the Foray and Blaikie cases. Does Foray and Blaikie extend the discipline of Section 133 to municipal institutions? That we do not know. What we do know is this: it extends to legislatures and courts, permissively, and extends to quasi judicial tribunals, and further it contains a principle of growth.

I rather like the principle of growth and I am sure that this conference does, because, it means that over the long term Section 133 will finally come to redress some of the inequalities in the Canadian Confederation.

Mr. Crombie: Mr. Chairman, I can assure the solicitor that both in principle and in practice I will always favour the principle of growth, certainly as a personal event.

I would like to offer this thought: as I hear you, and with respect, I did not hear what Section 133 was, I heard how it was being extended and I appreciate that point, I appreciate the case, I know the case, I have read the case, and what concerns me is that people do not know what it means. What is it that is being extended?

For example, you said the use. Now, no one has ever denied the use in the legislature. Does it mean, for example, simultaneous translation in the House of Commons? It did not happen until 1959 so clearly if it was a right, it was delayed. Does it mean that the proceedings, the statutes, the regulations and the journals should be made available in both languages and if it is not made so by one of the provinces, should it be done by the federal government. That is what people want to know, what does it mean to you?

Professor Magnet: Well, the votes and proceedings, the procedures there, I know Mr. Epp will know in Manitoba the

[Page 80]

votes and proceedings are taken down in the language in which the speech is delivered.

Now, is it really profitable to ask whether or not the discipline of Section 133 requires that it be translated? It may be that the group in Manitoba would want to litigate that question to discover whether the principle of growth takes Section 133 beyond its express terms.

Certainly statutory adjudicative agencies will not have been included in Section 133 in 1867 because there were very few, but now as the Confederation changes it is only fair in the spirit of equality of official languages that statutory adjudicative agencies be included.

I do not think I could assist this Committee by giving a list of everything that Section 133 contains. I can say that it contains the legislatures, the courts, statutory adjudicative agencies, and most importantly, and what this conference supports quintessentially, is it contains the principle of growth.

On your second question I think I have a very short answer, and that is does the Ontario Conference support the further extension of Section 133 to the other provinces? We have no mandate to speak for those provinces and I am afraid we will have to refrain from speaking on behalf of those other provinces. I am sure that groups from those provinces can speak for themselves.

Mr. Crombie: I have one final, perhaps it is a question, maybe it is a query, possibly a thought.

There are a good number of people who would like to move in the direction which you suggest. One of the least fruitful ways, it has always struck me, Mr. Chairman, of doing that is to use phrases and numbers which are not understandable to people and can indeed be manipulated by other people for purposes which would frustrate the objective you are trying to achieve.

There are some people who argue, for example, that the extension of Section 133 is described as institutionalized bilingualism. I do not know what that means but it sounds awful, and I think that if people understood exactly what it does mean, they are not afraid of it.

For example, Section 133, and you would have tremendous influence if you went at it, I suggest, with this in mind, if people understand it to be the right of people to use either the two official languages in the legislature, the right to those two languages as spoken in the legislature to be available to the public in both languages, and that the right, before they send you to prison or hang you, if we were to still have that, to be done at least in your own language. That is what people want to know and understand . . .

Professor Magnet: Well, I must say that I take very cold comfort from the fact that I am going to be hung in French, but be that as it may, if that is my destiny. . .

Mr. Crombie: You would hang in English.

[Page 81]

Professor Magnet: Let us do it in French.

Bishop Carter: Thank you very much, because you have said just what we really have implied, rather, perhaps then said, that you are exactly on, this does represent the thinking of the Bishops of Ontario right on.

Mr. Crombie: Thank you. Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Crombie, and you will understand why I have allowed your last question.

The honourable Bryce Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman.

Bishop Carter, David does not understand that the Irish, particularly Quebec Irish, at times are closer to devil than they should be. So we are all the devil’s advocate in that sense. . .

Bishop Carter: You come by it naturally.

Mr. Mackasey: And I want to take advantage of the occasion to say hello to you once again. I notice that you are now the President of the Ontario Conference of Catholic Bishops and I am just wondering if your organization gives the Cardinal much problem?

Bishop Carter: He gives us a problem.

Mr. Mackasey: I, like yourself, have had the distinct advantage of living in many parts of this country. As you know from our conversations, my parents arrived here from Ireland in Halifax, eventually to Quebec and finally on to Hamilton and now I am representing the very lovely constituency of Lincoln. Now, I have to be exceptionally nice to you if I want absolution periodically.

One of the things that concerns me about our deliberation is our tendancy to look to the American experience, both in discussing jurisprudence, and it, concerns me a little because I think we are a unique country and our constitution has got to reflect our unique character. We have the built-in advantage, I think at this stage, as some members opposite have pointed out, of amending to some degree our constitution. We have the advantage of one hundred and some years of history, our own history not the American history, and it seems important to me that somehow we balance in this constitution the problems between individual rights and collective rights, such fundamental freedoms of association and religion.

I think your counsel did a great favour by reminding us the American Constitution really discourages the creation of religion where ours encourages it. I would hope this continues and I do think that such a point is an extremely important one but somehow, in our anxiety to improve and protect the rights of minorities, to change the constitution to some limited degree, that we do not unintentionally destroy the better features of the BNA Act because one of the witnesses last night reminded us how effective the BNA Act had been because we are a relatively free society and despite our complaining at times it is the best country in the world and the BNA Act has had a lot to do with it, so I mention this only in saying that my own bias is that we not, in our anxiety to improve things, destroy

[Page 82]

intentionally some of the things that have stood the test of time.

I want to say, too, about Ontario, that one of the things that I have been seeing in Lincoln has been the concern of the Dutch Reform Group for their own schools. People tend to think of parochial schools as being something that simply the Catholics want, or the provinces in Quebec want, but the Dutch Reformists are saying that culture, language, religion are all part of a way of life and it is important to them that they be able to maintain and retain their schools in Ontario despite the fact that they are getting very little if any help in a financial way.

Another thing that I am listening to, which I do better than anything else, I think, listening to Counsel talk about the evolution of growth; being the devil’s advocate, being Mr. Davis’ advocate, could it be that Premier Davis, in his application of Section 133, that is to the courts, to the legislature, is proceeding through an appropriately called evolution of growth? In other words, is he really concerned that in enshrining in the constitution Section 133 to Ontario we may be at the same time unintentially impeding the evolution of growth towards that same objective?

Perhaps Reverend Plourde might answer that, do you feel that there has been real progress in Ontario?

Rt. Rev. Plourde: Well, I am sure that if you were going to ask Mr. Davis if he is in favour of the principle of the evolution of growth he would say he is in favour of it.

I think that what has happened in Ontario recently in the rights of the minority field may be described as that. Of course, not to the satisfaction of the minority, but I think that nevertheless something has been done and we have to acknowledge that.

I would like, by the way, jus to say that I often wonder at the wisdom of Mr. Mackasey, and now I understand why; it is because his ancestors stopped in the Maritimes before coming to Quebec.

Mr. Mackasey: That is right, and they are still moving.

Bishop Carter: I want you to realize that we did not approach this in any way to try to ape or to imitate the American system because the American system is very different from the Canadian. We are under the English parliamentary procedure and we have responsible government and the checks and the balances that are written into the United States Constitution would not apply here because we do not have the same type of government here. It would be a very different picture if we were writing a constitution and had an executive like they have in the United States and had legislature like they have in the United States and judiciary, the three powers that are deliberately set up to counter balance and to check each other. That is not our system.

[Page 83]

That is why we feel that that Charter of Rights should be specific, should be clear, but not loaded down with a lot of casuistry because that is not the history or not the juridical or the legislative or the historical development of our country which, after all, we came from the Union of Lower and Upper Canada, and in which each one conceded something to the other and Lower Canada would probably say that they conceded the most and had the worst part of the bargain; but the fact is we are starting once again now, if the BNA Act can be written into a constitution or developed into a basic constitution for the country, we are not thinking in terms, and the Bishops are not suggesting in terms as of a constitution such as they have in the United States, going down with all kinds of laws and amendments and legislative amendments over the years. We would like a Charter of Human Rights and recognizing that the condition of our country, the elements that make up the country, and to guarantee once and for all the basic rights of French and English speaking people to enjoy their language, their life and their culture right in through the schools, right in through the way of life; and that is not beyond our possibilities if we try to do it. That is our presentation.

Mr. Mackasey: Bishop Carter, are you suggesting, hopefully you are, a way of life that has evolved in Quebec through necessity and love and desire, the love/hate relationship between the minorities there, the English Quebeckers and the French Quebeckers produced a tremendous joie de vivre in the province unattainable in any other place in this country, and I have often felt if we could have bottled that tremendous relationship 10 or 15 years ago and spread that across this country. . .

Bishop Carter: Quebec has an enviable record of justice and courtesy, and I am sure that any momentary events will disappear and I do not think that that is . . .

Mr. Mackasey: It is said that the Quebec Irish have a particular mission in life and that is to spread it. One last question of Bishop Plourde. How important is it for the Franco-Ontarians to eventually obtain control over their own school system, school boards in particular.

Monseigneur Plourde: I think that the. . .

[Translation]

Mr. Mackasey: Answer me in French, why not?

Bishop Plourde: Fine.

I think that if the French do not obtain control over their schools, if school boards remain joint as they are at the present time, that is Roman Catholic French and English together, the schools will not disappear.

If, however, the French could manage their own schools, we would avoid tremendous misunderstandings throughout the Province of Ontario.

Mr. Mackasey: Thank you very much.

Bishop Plourde: A lot could be added to that.

[Text]

The Joint Chairman (Mr. Joyal): Merci bien, Mr. Mackasey. I still have two names on my list and I see that our time is running out and our other guests this afternoon are waiting in the audience. I would like to invite Mr. Ron Irwin to ask a short question and Mr. Mark Rose to conclude. Mr. Irwin.

[Page 84]

Mr. Irwin: Thank you, Mr. Chairman. Because of the time restrictions I would like to question about the unborn, the native peoples, and the denominational schools but I will not. I will restrict my questioning to 133.

The honourable David Crombie brought up a good point. I want to read it because I think the role of the true revolutionary, and I include him as one, is to patiently explain.

Section 133 may be used by any person in debates of the Houses of the Parliament of Canada and the House of the Legislature of Quebec and both those languages shall be used in respect of records and journals of those Houses.

As I take that, that means only debate and following your point on growth you think simultaneous translation and record are part of that growth.

And either of these languages may be used by any person or in any pleading or process in or issuing from any court of Canada established into this Act and in or from all or any of the courts of Quebec.

Applied to Ontario, that would be all the courts, civil and criminal. There is some growth there. It is in the small claims court, into the district court, and I am happy to say in my riding of Sault St. Marie as of December 9 the city’s first French trial was held and there was no fuss. There is a small French population of about three or four thousand people in Sault St. Marie and I am very proud that it has happened in my particular city this month.

It continues:

The Acts of the Parliaments of Canada and of the Legislatures of Quebec should be printed and published in both of these languages.

So we are talking about the records, journals and statutes and the Manitoba group and some of the associations, the Francophone group of Ontario do not want to go back to 1867. They would be happy from today forward if they had that right, so we are talking about very simple rights, the courts, the legislature and the records and journals. If again on your idea of growth perhaps the Ontario Municipal Board, maybe some day Municipal Council, offshoots of the provincial governments that are not part of the legislature.

The situation here today, and we are getting very close to the end, is that the NDP are proposing an amendment and I thought the honourable David Crombie at one time was going to support that amendment without any hookers on it like time limitations or opting in, or part of a larger package, waiting three or four years or many, many things that are almost common in this Committee and the House. A simple amendment by the NDP, supported by Mr. Crombie and his group,

[Page 85]

would probably carry here and maybe become the law of Ontario because I cannot see Mr. Davis backing out if the interior caucus of the Conservative Party would support that. That is how close Section 133 is to Ontario. That is a political fact, a reality.

The difficulty is that we in the majority are carrying the whole package, the whole constitution, and have only Ontario’s support and New Brunswick’s support, and that is about it, the NDP national support. But that is how close Section 133 is to implementation, the courage of the Official Opposition to come up with an unadorned sponsorship of an NDP motion. That is the only point I wanted to make.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Irwin. Mr. Rose. to conclude.

Mr. Rose: Mr. Chairman, if one looks at Section 16 over the page under the Official Languages of Canada talks about rights and privileges regarding languages and their use in all institutions.

Professor Magnet: Of Parliament.

Mr. Rose: Yes, well, of Parliament and the Government of Canada so that extends to a lot of boards and bodies, it seems to me, if that word worries some very prominent Canadians such as James Richardson who was here, who concerned himself greatly about that particular word “all” in Section 16 and to the point where it might lead. So there is growth. He would consider that probably unrelieved growth.

I have really two very short questions, not that there are not a number of things that I would like to talk about.

Under the matter of denominational schools or independent schools as I would prefer to call them, I do not have many problems with that concept of the moment. I did one time; I do not so much anymore. It seems to me there is a group right existing there and the right for parents to have some say rather than simply the state over what kinds of education people have for their own children. However, what concerns me is a recent case here involving a denominational school, a Catholic school, in which a Catholic teacher married a divorced person. Now, you have your group right to hire a Catholic teacher, you want that enshrined or at least you want that clarified. Now, when these group rights come into conflict with individual rights, what gives? Which right is superseded.

Professor Magnet: I do not think it is possible to give an answer to that in the abstract. What you have posed there, I would like to write it down so that I could give it to my constitutional law students on their exam, that is precisely the kind of conflict for which we have courts. We cannot see precisely how these rights will come into conflict and when such a conflict arises what we need to have is all of the facts of that case and all of the policy materials of that case brought before the courts for a decision on that narrow question.

Mr. Rose: Just so that everybody understands the question, in a denominational school a Catholic teacher, a woman, married a divorced man, presumably a Protestant, and as a result lost her job. So it seems to me a direct conflict between

[Page 86]

individual rights, the right to choose one’s mate, and the right of a group to hire someone who apparently or presumably supports the values of that group. That is one point, and you have answered it.

My next point, if you suggest as you do that everyone from the moment of conception onwards until death has the right to life and you want that enshrined in that constitution, does that in your opinion supersede or abolish the present right in the criminal code for a woman on the basis of the right for her health, for health reasons, not physical or mental but just health, the right to a therapeutic abortion.

Professor Magnet: If we have a blanket prohibition on abortion I can foresee that there will be circumstances at present unforeseen where the absolute statement of the right would be judicially qualified. I do not think I would want to go beyond that and specify the circumstances, but we do have for example a prohibition on murder in the Criminal Code but we know that the criminal law doctrines allow there to be certain excuses to what otherwise an act would be murder, and I would assume that the courts would, when faced with the broad general language prohibiting these acts, that the court would find circumstances, presently unforeseeable, which might dilute them.

Mr. Rose: You are suggesting that your precise statement that everyone from the moment of conception onward until natural death has the right to life does not in your view prohibit or is unlikely to prohibit a request of a woman for a therapeutic abortion. If it does not, then why is it in there.

Rev. Macdougall: I had better handle this one. It is not a fair question for Mr. Magnet really, but our position is that life is sacred right from conception on. It never gives you a right to deliberately to take away the life of an innocent person. If there is a conflict of rights, if really and truly that old wives’ story about the woman’s health being endangered by the child, it is such a unique case that comes up, you ask obstreticians and gynecologists they have never had one in 30 years experience. that the child is a danger to the woman’s health; but if it were you and I know that the Doctor will have to make a decision on the rights and usually good medical practice, they assure me, would be that perhaps if they had to sacrifice anyone in a crisis situation that maybe the child would have to be sacrificed because if they sacrifice the mother there is no guarantee that they will even save the child.

But this is a medical issue and really we consider that good medicine usually would be good morals, but the Church’s position on this is that there is an innocent life at stake and no one has the right to take that life away.

Mr. Rose: So you have answered my question, and could I say. . .

The Joint Chairman (Mr. Joyal): I am sorry to interrupt you. You have requested to speak on the basis of two small questions, and what I have said 15 minutes ago is still more

[Page 87]

needed at this point because we have other witnesses. I think that your question has been fairly well answered by our witness. If you would really accept my ruling, I would conclude on that one.

Mr. Rose: Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Rose. On behalf of the honourable Senator Hays and on behalf of all of the honourable members of this Committee it is an honour to thank you, Bishop Carter and Monsignor Plourde and Father Durocher and Father Macdougall and Professor Magnet for your contribution to our work today. I do so, taking into account especially the firm stand that you take in favour and support of the rights of aboriginal peoples of Canada. As our history has taught us, the Roman Catholic Church was one of the first churches to be in contact with the aboriginal peoples of Canada, and I am glad today that you take such a firm stand because if the European culture has an influence on the Canadian way of life it was first with the aboriginal peoples, and if today we have to restore some sense of justice and equality in our institutions and in our relationships with the aboriginal peoples of Canada, I am glad to see that the church is having a leadership role. Thank you very much indeed.

Bishop Carter: Thank you very much, Mr. Chairman, on behalf of all of us. On vous remercie de tout coeur. Merci.

The Joint Chairman (Mr. Joyal): I would like to call now to the witness’ table the representatives of the Canadian Life and Health Insurance Association of Canada and I would like to introduce Mr. Burns who is the director of the Canadian Association, first wish him welcome in our work this afternoon and ask him to introduce the members of his delegation, invite him to make the usual opening statement and then be agreeable to receive questions by the honourable members of this Committee. Mr. Burns.

Mr. P. D. Burns, Director (Canadian Life and Health Insurance Association): Thank you very much, Mr. Chairman. My name is Pat Burns, I am here today representing the Canadian Life and Health Insurance Association. This Association, although formed only recently, is in fact the successor to two long-established organizations that represent the general interests of the private life and health insurance industry in Canada.

The members of our Association represent approximately 99 per cent of the life insurance business in force and over 90 per cent of the health insurance business. In addition we are the funding agency for perhaps 70 per cent of the private pension plans in Canada which represent 13 per cent of the employed members. Although our pension plans range from the very small to the very large you will see from those numbers that the emphasis primarily is on the relatively small employer.

I believe that you have a copy of the letter from our Chairman, Mr. Crawford, sent to the Chairman of the Committee I believe in November of 1980. To put our concerns into perspective I should say first of all that we are here to talk primarily from the perspective, the unique perspective if you like, of the life and health insurance industry. We are not here to comment in general as members of the business sector nor

[Page 88]

are we here to comment as employers, although indeed we are, as I am sure you know, large employers within Canada.

Our concern basically centers on Section l5(l) of the proposed Charter of Rights and Freedoms which reads as follows:

15(1) Everyone has the right to equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion age or sex.

In particular, our concern rests with the words “without discrimination because of age or sex”. Both of our predecessor associations adopted a statement of position that endorsed legislation protecting the human rights of Canadians. Therefore we wholeheartedly endorsed the stated objectives of the proposed Charter of Rights.

However we strongly believe that legislation of this type should be applied only to prohibit unfair or unreasonable differentiation between individuals and, unfortunately, wording such as you have before you now could be interpreted to prohibit any and all differentiation between individuals based upon stated grounds and could have an unintended impact on many aspects of Canadian society.

Our intention and objective in appearing before you this afternoon are threefold: ‘first of all, to make you aware of our concerns that the strict interpretation of these words could in fact have an adverse effect upon the operation of the private insurance industry.

Secondly, it is to provide for you information on the logic, the basis and the approach as used by the private insurance industry in the classification of risks; and thirdly, to urge that careful consideration be given before the Committee responds to the pressures or suggestions from other groups who might conceivably be looking for even stricter definitions in the interpretation of those words.

The function of the private health insurance industry or insurance process, really, is to reduce each individual’s exposure or risk to financial loss by pooling it with the risk of other individuals.

For this risk sharing process to operate on a private voluntary basis—and those words are the very key, “private and voluntary”—it is, we think, essential that a charge assessed against each individual be reasonable in relation to the risk which is being shared and also in relation to that risk that that individual brings. In other words, that the cost of insurance be reasonable in relation to the benefit likely to be received.

Efforts to meet this requirement have led insurers to consider many individual characteristics in the structure of premiums and benefits. Variations on such bases as age and sex are common to reflect the obvious variations in mortality and morbidity related to or arising out of these factors; for example, the appropriateness of varying life insurance premiums by age is almost self-evident. The appropriateness of varying

[Page 89]

premiums by sex is probably more contentious, but we think equally well founded. Variations in life and health insurance premiums on these bases is not prohibited in any jurisdiction in Canada or elsewhere of which we are aware, and we believe it is not your intent that such would be prohibited under the proposed Charter.

We have in the past expressed similar concern in other jurisdictions in recent years as legislation protecting human rights of individuals has become more comprehensive.

When the Canadian Human Rights Act was passed in 1977, for example, certain concerns were recognized by including certain specific exemptions for certain features of pensions and insurance plans and by providing a two-year period for the development of suitable regulations relating to those plans.

In a similar way, the amendments to the Ontario Human Rights Code in 1972 provided an exemption for such plans until a number of issues could be examined. A task force was appointed to do so, and following extensive review released a set of recommendations which were adopted as regulations under the Employment Standards Act.

In the same way, the revision of the Human Rights Code in Ontario currently before that Legislature, explicitly recognizes similar features, some unique characteristics of insurance contracts.

Other jurisdictions, for example, New Brunswick, Quebec and Manitoba, have recognized that broad prohibitions could have unintended impact and these jurisdictions have undertaken studies or issued guidelines.

On the other hand, the Individual Rights Protection Act of Alberta did not originally provide for regulations or other specific exceptions for insurance plans.

One complaint to the Human Rights Commission of Alberta regarding variations in premium rates by sex under a differed annuity contract has been held by a board of enquiry. The board ruled that such variation was, technically, discrimination on the basis of sex and thus it appeared to be prohibited by the Individual Rights Protection Act.

However the board noted the variation in mortality rate which underlines and justifies such differentials, expressed uncertainty whether the legislature had intended to prohibit such variation and urged the appropriate officials to review that issue.

Such review is now proceeding and we also note that the act has been amended to provide for regulations to be issued.

We are confident that the results will substantially confirm the Association’s practices.

But in the meantime, we have faced many months of uncertainty. Two or three matters are also under review in British Columbia where the absence of regulations or guidelines is likewise creating uncertainty for industry.

[Page 90]

There is perhaps something which is a little ironic that our industry which deals with uncertain events, because they are in the future, such as the possibility of death or disability and does this on a routine basis, faces these uncertainties every day, nonetheless now faces the uncertainty which arises from the broadly worded legislation that we see in these jurisdictions.

For example, our industry is anxious to promote a broader coverage for retirement income, pensions, disability income, but uncertainties regarding the ability to vary, for example, annuity rates between male and females could delay or even paralyse our initiatives in this area.

Clearly, our industry is no way opposed to change. We believe we are a dynamic and responsive industry, meeting the changing needs of Canadian society; but we do urge that the disruptive potential or impact of uncertainty be avoided wherever possible, and thus we appreciate this opportunity to outline for you our very serious concerns with respect to the possible interpretations of Section 15(1) of the proposed resolution.

Mr. Joint Chairman, I have tried to keep my introductory remarks brief, and I would expect and indeed hope that there would be some questions and my associates and I are prepared to answer any of these that you may have.

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

I would now like to invite Mr. Hawkes to open the discussion with our guests this afternoon. Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Joint Chairman. On behalf of the Committee and as the first questioner I welcome you to our deliberations.

I would like perhaps to go one step further and thank you for coming.

We have sat over 90 presentations. Conspicuous in those presentations has been the lack of representation from what I would call the world of work.

As we know, most Canadians spend about 40 hours a week more or less in that world, except for the 1 million unemployed.

But the implications of this change in our constitutional arrangements for the world of work has been disturbing to me because I carry the portfolio as the manpower critic for the Conservative Party in the Parliament of Canada, and I have tried on more than one occasion with labour unions, for instance, to suggest to them that it would be in their interest to take a close look at these proposed constitutional changes because, in fact, I felt a large part of their world might be prejudged without their being aware of it.

The reluctance of the world of work to come forward to this forum is in part due to the lack of Canadian experience with pre-eminent law in the form of a charter.

[Page 91]

It has been interesting to me that the people who have carried the major responsibility for indicating clearly to the Canadian public the dangers of a charter, are those provincial premiers who, through the legislative process, have put charters in place within their provinces, and then discovered the unintended consequences of those charters.

You have brought to our attention in a most forceful way the dependence of your industry in its historical traditions on arranging premiums and benefits related both to age and sex.

In my province, the Province of Alberta, our Human Rights Tribunal, in the case of car insurance, has indicated that the practice of charging differential rates on the basis of sex is not to be tolerated because of the Charter.

In that case, females in our society, who it is widely known make less money for one thing, have less accidents, because of the Charter are now in a position of subsidizing the accidents which the males have and they make more money and have more accidents. That may be the way in which society wants to arrange its affairs. But if so, I think we should face the issue clearly and we should resolve it.

I have two questions which I would like to ask you. In your letter to the honourable Jean Chretien, the Minister of Justice on November 21, you brought to his attention Section I of the proposed Charter and you dealt at some length with the possible ramifications of that section.

The Human Rights groups have told us that we should abolish that clause, and the government, through some of its spokesmen on the other side, has given us a strong indication that even if it is not abolished it would be weakened.

Yet, as I read your letter, it is Section 1 which you think would, in fact, allow the legislatures to fine-tune out some of the unintended consequences.

Yet I think we are facing on Monday of this week government proposed amendments which would take that possibility away. I cannot say that with any great degree of certitude, but I think that is what is going to happen.

So, does that increase your concern about the impact of the Charter on your industry, if in fact that clause is modified or taken away?

Mr. Burns: Yes, it does.

In my earlier comments I said that one of our three objectives in visiting with you today was to make our concerns known and to seek assurances that our interpretation and understanding that that would allow us to continue, the basic idea of risk classification and it could be done under Section 1.

Another objective would be to urge you to seriously consider the reasonableness of groups that come to you and say such things as, “eliminate that or make it less open to interpretation.” So we would be very much concerned.

Mr. Hawkes: I share your concern and I commit myself to carrying that concern into the clause by clause consideration of the matter which follows, because I think it is legitimate and affects many people in our society.

[Page 92]

I would like to bring your attention to the fact that during our previous questioning of the Minister of Justice, amongst many of the questions that he was asked, I asked a particular question about the impact of Section 15 on compulsory retirement, and the response I received from that and similar questions from the Minister of Justice was, “I do not know.”

I think we will continue to press as hard as we can on this side of the table to make sure that the constitutional amendments are precise enough that we have a lot more certitude from the Minister of Justice about that precision than the words, “I do not know”.

We may be over-ruled by members of the opposite side, and that has happened before and may happen again; but we will do what we can.

May I now direct your attention to another paragraph. You say that you would note in passing that the proposed legislation would seem to involve a significant transfer of regulatory authority from the provinces to the federal government in the fields of life insurance legislation and labour law.

Could you identify in some detail for the benefit of the Committee what you see in this proposed new constitution we are facing which would affect the jurisdictions in both areas with some particular emphasis on labour law, because we are not going to have a labour group before this Committee, and you may be the only witness who could draw to our attention some of the ramifications for labour law.

Mr. Burns: I would like to ask Mr. Kent if he would like to comment on that aspect of the matter.

Mr. T. D. Kent (Canadian Life and Health Insurance Association): Mr. Joint Chairman, what we are noting here, at least when I attended law school we were told that property and civil rights were a matter of jurisdiction for the provinces.

Under that heading labour legislation has been enacted. There have been also a number of cases over the years on insurance legislation which in the main hold that the jurisdiction is in the provinces.

We are concerned here that a Charter of Human Rights could be changing provisions which are now found in the Human Rights Code of various provinces.

In most of the Codes there is allowance for distinction to be. made for employee benefit plans, be they group insurance, life insurance, pensions and so on. This would, in our opinion, seem to move that jurisdiction to the federal government.

We recognize, of course, that the federal government does have jurisdiction over certain areas, that industry specifically is under the wing of the federal government, such as banking and railroads and so on, and therefore the federal government also needs human rights legislation.

Mr. Hawkes: I have seen asked to be very brief in the questioning because we are running behind. If there is more time, I will come back. I think we will pass to the next questioner at this point. Thank you very much.

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

[Page 93]

Mr. Rose.

Mr. Rose: I wish to welcome the members of the insurance industry before us.

In the case of Section 15, I understand your concerns about your rate groups and all the rest of it. But there was a proposal by one group—and I have forgotten which—that instead of using the world “discrimination” you should substitute “unreasonable distinction”.

I would like to hear your comments on that, because it would seem to me that your industry could then establish that yours was a reasonable distinction. How would that satisfy your industry?

Mr. Burns: We would welcome anything along the lines which said unreasonable distinction or unfair distinction.

Mr. Rose: The last page bristles with things which I would like to ask you about if we were not so pressed for time and running behind constantly, and of course, one of the reasons is that most of us are so loquacious.

However, you talked about subsidizing insurance costs, so that some individuals are subsidizing the insurance costs of others. Is that not what happens anyway?

Mr. Burns: The whole principle of insurance is, of course, one of sharing or spreading the risk, but if I may use a couple-of examples to illustrate our concern, at the one end of the spectrum you have insurance that is wholly voluntary, in the sense that when the individual buys it or obtains the coverage, voluntary in the sense of the amount and nature of that coverage. That would be the classic, individual life insurance situation.

At the other end of the scale you have almost an implied necessity to carry, for example, automobile insurance.

I want to make the point that the big concern is that where the nature of the insurance is wholly voluntary there is a concern that those people who perceive it to be a bargain for them will be interested and those people who perceive themselves to be suffering under the undue subsidization, in their view, will not avail themselves of the coverage. That is our big concern.

Mr. Rose: Again, I would be interested to know how many of an age group or class do you need to establish a rate actuarially. and what do you do in a case where you say there is no legal obligation for anyone to buy insurance and bear such subsidy if they feel premiums are not fair to them?

I ask you that because the Anglican Primate says that our constitution should deal with the needs of the poor which should take priority over the rich. What other kinds of options are there for somebody who does not care for your rates and has no other place to go to get insurance? Are you suggesting a form of state insurance?

Mr. Burns: You will not be surprised to learn that we are not here to advocate some state form of insurance.

[Page 94]

I might ask Mr. Galloway to comment on the statistical aspects of how big a group you need in order to share the risks.

But before doing so, I would like to say that group insurance is by its very nature typically cheaper, although not always. It is typically cheaper because it has a more effective method of distribution or delivery.

You are dealing with a group of people all of whom have an affinity, let us say they are all employed by the XYZ Company and you can therefore reach them.

But there are certain situations where if they share in a group, and I am a very young person and someone else is a very old person, and the premiums are charged on the basis of averages, I might perceive that it is a bad bargain for me, and conceivably I might find it cheaper to purchase individually arranged insurance than being a member of that group.

That is not perhaps a bad illustration of the concern. Perhaps Mr. Galloway would have some comments with regard to the size of the groups you need.

Mr. C. T. P. Galloway (Canadian Life and Health Insurance Association): Thank you very much, Mr. Burns.

It certainly depends upon the kind of insurance you are talking about, as well as the kinds of risks.

Typically, dealing with group insurance plans, life insurance companies feel where a group has 5,000 or 10,000 people in it, its own experience is very significant in determining its rate and that that larger group of people would give an indication of the mortality experience and of that group which is quite significant. On the other hand if you are dealing with a group of 50 or 100 people it would not be sufficient to give an indication of the actual underlying mortality of that particular group.

Mr. Rose: It must be extremely difficult with individual plans.

Mr. Galloway: Yes, but in that case people are joining a group of maybe 75 or 150,000 people who are all policy holders of the life insurance company and who are pooling their experience in one company, and I think the point Mr. Burns was trying to make is that they join that group voluntarily because they feel the price they are being charged to join the group relative to the risk that they are passing on to the group, and that is why it is very important that the rate for a young person be low and for an old person to be high in order that they may feel they wish to join the group.

There is another comment in there. You said there was an element of subsidization and wondered whether that did not go on all the time.

The point is you were probably thinking that the ones who died received money from the ones who lived.

Mr. Rose: That is right.

[Page 95]

Mr. Galloway: But that is not the same type of thing. Each individual has passed a risk on to the group and has paid a premium in order to be relieved of the risk and then the money is distributed to those people who experience the contingency that is provided for.

But if you had two groups of people each of whom had a very different probability of dying therefore becoming a claim, and you tried to pool them, then it would be quite evident that the first group with the low rate of mortality, if they were paying the same charge as the second group with higher mortality, nevertheless more of the money would be going out to the beneficiaries of the people in the second group and that would evidently be a form of subsidization which would be unfair.

In the case of an individual who has already died, it is an event which could not have been forseen or predicted originally or individually, and once it has happened it is over with, whereas he case of combining two groups of people who have a different rate of mortality it would be evident, as time went by, that the one group was receiving a lion share of the benefits, whereas they were each sharing the cost, and that would be perceived as unfair by that group, and the ones who felt that they were being over charged would drop out and the plan would not function.

Mr. Rose: Thank you.

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

The honourable Senator Lapointe.

Senator Lapointe: Merci, monsieur le president. I would like to direct my first question to the more important man. If you are afraid of Section 15(1), does that mean that you admit that there is discrimination on the ground of sex especially?

Mr. Burns: If the word “discrimination” is meant to distinguish between certain groups of people and the nature of the risk they bring in joining that pool as Mr. Galloway has described it, it is certainly true that the life insurance, or any form of insurance works on the basis of what I prefer to call “risk classification”, rather than “discriminaiton”.

I am concerned in Section 15 that some people might interpret it literally to say that if two individuals, one of whom is 19 years old and the other being 91 years old, and each one buys life insurance, for example, that they would get it for the same price.

I think that most of us would concede that such an example is absurd. But you then go on further down the line and say “can you demonstrate that a certain gorup of people bring a higher risk because of certain characteristics, and is it valid to distinguish the additional risk that they bring as they become members of that group?” Is it valid to charge them the same price, or should they pay more or less according to the character and nature of the risk they bring?

Senator Lapointe: But you admit that on the question of sex it is more contentious?

[Page 96]

Mr. Burns: Society considers the distinguishing between sex a more contentious issue.

[Translation]

Senator Lapointe: I would like to ask Mrs. Bacon to explain where discrimination exists with respect to women.

Mrs. Lise Bacon (Canadian Life Insurance Association): The fact that women live longer than men is reflected in life insurance premiums. In this case, there is discrimination against men.

If we think of the risk assumed in the case of annuity insurance, since women have a much greater life expectancy than men, there is discrimination against women in this case.

Simplistic generalizations should not be made. Actuarial procedures and life expectancy must be taken into account. It is assumed that even as infants, females are better equipped to deal with life than males. I think such assumptions are made at a rather early age. However, they are not about to change, despite the different lifestyles women now have and the different work they now perform. It is very fashionable to talk about stress these days, but women experience the same pressures in a constantly changing society. Nevertheless, we still do not have a standard premium for men and women.

It may take some ten years before any change can be made with respect to standard premiums and, once again, who knows what society will be like in a decade. Women still have a much longer life expectancy than men.

They therefore have to pay slightly higher annuity plan premiums.

Senator Lapointe: What are the differences in the case of pensions?

Mrs. Bacon: That is what I mean. Women are paying slightly higher pension annuity plan premiums than men at the present time. Men therefore have an advantage, but they do not have the same life expectancy as women.

Senator Lapointe: You mentioned stress a few moments ago. Men are just as subject to stress as women. Mrs. Bacon: But I also said that even before they are born. women are better prepared to cope with life. Studies have been done. I do not know whether it was in Canada or in the U.S., but studies have shown that women may be better equipped to cope with stress than men are.

Senator Lapointe: So, since they are better equipped and since they have a longer life expectancy, they have to pay ransom.

[Page 97]

Mrs. Bacon: We are not yet at a point where women have equality in this regard.

Senator Lapointe: Thank you.

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

[Text]

The Joint Chairman (Mr. Joyal): Having no further names on my list—oh, I am sorry. I do apologize sincerely, Miss Campbell.

Miss Campbell.

Miss Campbell: I was on the list because I certainly have experienced discrimination in insurance and I would like to know if the same situation exists today as it did in my earlier working career.

Say you take a person of 25, both single, both working in the same occupation, do they, without being under group, personal insurance, is there today the same discrimination that existed before? You do it over, let us say, all women who are insured at that age group versus the men who have their rates under their group, is that still in existence today?

Mr. Burns: The common approach is to have separate tables for men and for women.

Miss Campbell: And who pays more, the one that has fewer members in that group; is that not right? The straight life insurance on a 25 year old man working at the same job, straight life insurance on death, and a 25 year old woman working, who will pay more?

Mr. Burns: I might give you some numbers which I think will answer . . .

Miss Campbell: Surely you can tell me, we do not have that much time. In my day a woman paid more.

Mr. Burns: For life insurance?

Miss Campbell: For life insurance at that age?

Mr. Burns: Today the woman pays less.

Miss Campbell: All right. Now take a woman and a man who are doing the same job and can afford life insurance, and at the age of 25, you do not think that unless their working capacity changes or that the woman then retires, that they should pay the same amount?

Mr. Burns: I think what you are perhaps suggesting is that the risk classification should be, oh, perhaps unduly scientific and unduly fine. We believe that the factors that are demonstrably important are age and sex. If you are suggesting that we should go further and get into a variety of occupational groups, and I am not talking- . . .

Miss Campbell: I am talking sex. I was talking sex, just for the record, between men and women in the same working capacity. Age, I do not think there is a discrimination because age goes from one level to the next level to the next level, and as long as you classify all men and women in the same level. I can go along with you, but I do not think you can ask this Committee, well, I would hope not, to discriminate on the basis of sex on insurance. I would think that the insurers would find reasonable distinctions and limitations.

[Page 98]

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

The honourable Bryce Mackasey, you had a short question.

Mr. Mackasey: Just a short question, and also to welcome Madame Bacon to our Committee.

You mentioned Section 1, and I mention it because you are one of the few groups that look on Section I as some desirable protection for the legislatures over the courts; am I right on that?

Mr. Burns: That is correct.

Mr. Mackasey: It seems to me that what you are asking us to do was really arrive at an interpretation a court would evenutally be seized with after the resolution is implemented.

Well, let me ask you another way: women are now paying less premium, I suggest, not because of their sex but because of certain characteristics that are identified with that group of people. Am I right or wrong on that?

Mr. Burns: We believe you are wrong. There are some people who would clearly disagree but we believe that it can be demonstrated that, genetically, there are factors that will result in the average female, all other things being equal, living longer than the average male, and therefore we believe that fair play says that for a product which pays in the event of premature death, that the female should pay less and, similarly, we believe that a product that pays for the continued existence, that is an annuity or pension plan, the female should pay more.

Mr. Mackasey: I am only trying to help you but maybe I do not know your industry.

Let us take Bryce Mackasey for the moment, who may have to pay a premium because he is overweight. Is that because I am male or because I am overweight?

Mr. Burns: Because you are overweight.

Mr. Mackasey: And if I come down to your norms, theoretically, would my premiums drop?

Mr. Burns: Yes.

Mr. Mackasey: Let us take women at the moment, in some categories they are paying less than men?

Mr. Burns: That is correct.

Mr. Mackasey: What happens if in ten years their characteristics, based on studies, have changed so that they are a greater risk; would their premiums go up?

Mr. Burns: If their characteristics change, then certainly the premiums that would be in force for policies sold from that time on would be contemporary because we are dealing with a competitive industry.

Mr. Mackasey: But the point is they are no more or less female, their sex has not changed in ten years, just certain characteristics related to health are changed.

Mr. Burns: It might be helpful if I gave an example of a pattern that is taking place in the life insurance industry now

[Page 99]

to introduce lower rates for non smokers, and I think that perhaps picks up on your question or your illustration.

Mr. Mackasey: Well, do you agree with the fact that nonsmoking males pay less or should pay less than smoking males?

Mr. Burns: Yes.

Mr. Mackasey: It has nothing to do with sex?

Mr. Burns: No.

Mr. Mackasey: It has got to do with the characteristic?

Mr. Burns: Yes.

Mr. Mackasey: Why is it not equally applied to women in your table?

Mr. Burns: We have not been aware that society has said it is unfair discrimination to have a lower premium for a nonsmoker than for a smoker. Somebody might.

Mr. Mackasey: Well, I think that society, looking at it realistically, society is saying there should not be discrimination against women. I think society is saying that, and if you are practicing discrimination then the constitution should go after you people and the law should go after you, but I do not think you are.

Knowing the industry fairly well, the interest of private enterprise in making a dollar, they are not discriminating, they are taking into consideration a risk, and I have no evidence in my way and maybe I am trying to help you but you are making it hard, I have no evidence that you are discriminating against women, you are just discriminating against one group of people and you may say that women have certain characteristics that men do not have generally but that is not true of all women; am I right or wrong on that?

Mr. McGrath: Vive la difference.

Mr. Burns: You are correct.

Mr. Mackasey: Then what is your worry, what is your concern?

Mr. Burns: The concern still centres on Section 1 that some people, not the elite, but some people might be concerned and might interpret it literally.

Mr. Mackasey: Are you saying that the judges of the Supreme Court are not enlightened?

Mr. Burns: I have not said that.

Mr. Mackasey: Good.

Mr. Burns: I guess our concern could be summed up by saying the use of the word “discrimination” is in itself either a bad word or a word that has changed over time.

There, was a time when you said a gentleman was a discriminating gentleman, and you were paying him a very high compliment. Or a discriminating lady, indeed.

Mr. Mackasey: Discriminating tastes as well.

Mr. Burns: Yes.

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

[Page 100]

Having no further name on my list, it is my pleasure on behalf of all the honourable members of this Committee and on behalf of the honourable Senator Hays to thank you especially, Madame Bacon, Mr. Burns and other members of the delegation from the Canadian Life and Health Insurance Association of Canada.

You will realize that when you deal with constitutional principles it is always difficult to arrive at a conclusion, especially when you apply those principles in practical life as was stated by Mr. Hawkes at the beginning, but we are conscious of that responsibility and we thank you very much for having reminded us of the difficulty.

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

The Joint Chairman (Mr. Joyal): Merci beaucoup.

I would like now to call to the witness table the Alberta New Democratic Party.

The Joint Chairman (Senator Hays): On behalf of members of the Committee and our Joint Chairman, Mr. Joyal, we are pleased to welcome you here, Mr. Notley, this afternoon. I think you are familiar with our procedures and that you will introduce your group.

I have read your brief, I do not know whether I am going to like what I hear, if I have read it properly. In any event, we are glad to have you here and probably you will never get down here to make those motions.

Mr. Allmand: On a point of order, Mr. Chairman.

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

Mr. Allmand: A point of order. I have been reading the brief from the Alberta New Democratic Party and note that it relates to the revision of the entire constitution. It touches on the division of powers, the Senate and so on, whereas this Committee is seized with three aspects: the patriation, the amending formula and entrenched rights, and I am wondering if we are going to concentrate on those things in the brief, rather than all aspects.

Mr. Epp: The same point of order.

The Joint Chairman (Senator Hays): Yes.

Mr. Epp: Mr. Chairman, members of this party do not consider themselves restricted to those three areas in the discussion around this Committee table.

When the proposed resolution was tabled in the House of Commons, that opened up the written constitution of Canada, namely the British North America Act, and in no way do I accept Mr. Allmand’s suggestion or even question that that in any way would restrict the role of this party or any witness, but especially this party, in terms of moving any amendments on the British North America Act that do not particularly pertain to the three areas of the proposed resolution. I make that point quite clearly.

I think in terms of how this Committee has operated with witnesses. It has been the role and right of witnesses to address themselves to those areas of the Canadian constitution or

[Page 101]

additionally to areas that they thought should be included in the constitution which are not directly related to the proposed resolution. That has been the position of this party and that is how we intend to continue.

The Joint Chairman (Senator Hays): Mr. Nystrom, on the same point of order.

Mr. Nystrom: I want to support the comments made by Mr. Epp. It is my understanding that we are talking about not just the package presented by the government, but the constitution of the country.

The majority of our witnesses that have not come here from special interest groups have talked about other things, I refer to our witness last night, Mr. Grant Devine, the Leader of the Conservative Party in Saskatchewan. He talked about economic development, regional resource control, communications, the Senate, division of powers, I can go on and on, and I do not think we should be restricting the witnesses before us today to the three or four specifics in the resolution, but indeed, they should feel the liberty as other witnesses have to comment on what they feel is important about the future of our country.

Indeed, as Mr. Devine said last night, there are many other things outside of the constitution that are important to the future unity of Canada and I feel that Mr. Notley should have the same liberty as others have.

The Joint Chairman (Senator Hays): Thank you. On the same point of order, Mr. Mackasey.

Mr. Mackasey: Mr. Chairman, I think we have always had a lot of latitude in debate and I am not arguing that point, nor do I think that was the purpose of Mr. Allmand, but I want to serve notice on the Chairman of something significant that Mr. Epp has said, for their own perusal, and that is his right in the future to introduce motions or amendments, presumably to the resolution, would not be limited to the resolution as it is before us. Am I right or wrong in my interpretation?

Mr. Epp: You are correct in your interpretation because if you take a look at the proposed resolution, you will find an appendix thereto, that is also part of the proposed resolution.

Mr. Mackasey: Without getting into debate now, I am just suggesting the Chairman may want to, over the next few days, seek some ruling or some advice when and if that matter should arise.

The Joint Chairman (Senator Hays): Thank you.

Mr. Corbin.

Mr. Corbin: I think we should carry on as usual, Mr. Chairman, at this stage.

The Joint Chairman (Senator Hays): Knowing Mr. Notley, I think we will handle it with great discretion.

You may proceed, Mr. Notley.

Mr. Grant Notley (Leader, Alberta New Democratic Party): Mr. Chairman, honourable members of the Senate and House of Commons, I certainly welcome the opportunity to be

[Page 102]

here today with my colleagues from the Alberta New Democratic Party. We are a small delegation, but after spending the last ten years in the Alberta Legislature as one sole member, it is nice to have even just a few colleagues, and I would just begin by introducing Muriel McCreary, who is the Joint Chairman of the Constitutional Committee for the Alberta New Democratic Party on my right, and Dr. Garth Stevenson, who is a professor of Political Science at the University of Alberta, whose specialty is Canadian federalism; and Davis Swan, who is the Co-Chairman of the Energy Committee of the New Democratic Party.

I would like to perhaps begin, Mr. Chairman and honourable members, by dealing with the question of why we are appearing before the Committee in the first place. We certainly welcome the opportunity to be here.

It is, first of all, worth noting that over the last seven or eight months the New Democratic Party in Alberta has undertaken a fairly extensive review of the constitution. We have done so because over the last several years, constitutional items in Alberta, as most honourable members are aware, have become very, very important to the political life of the province and several years ago in 1978, the Alberta government presented a position paper on the constitution called Harmony and Diversity. It was our view that there was some major deficiencies in that paper and without going into them in any great detail, it was the opinion of my colleagues that the appropriate course for us to follow would be for us to develop proposals of our own which would deal with some of the deficiencies that we saw in the position paper presented by the Government of Alberta.

I think it is fair to say that one of the important distinctions between our position and Harmony and Diversity is that while the Alberta governments position presents a very strong view of the role of the provinces, I do not think that there is any vision of the role of the federal government, and it is our opinion that in any sort of constitutional review one has to recognize the need for strong provinces, but also a strong federal government, too.

The second reason we are appearing, Mr. Chairman, is that it is our view, and I do not say this in an unduly critical way, but it is our view that with the importance of constitutional patriation at this time, it is regrettable that the Government of Alberta has not chosen to appear before the Joint Senate and House of Commons Committee as have the Governments of Nova Scotia, New Brunswick, Prince Edward Island or the Government of Saskatchewan, and it is my understanding that the Government of Manitoba is planning to appear.

We feel that there are some important changes that have to be made in the resolution and important changes, not only to the country, but from our vantage point as Albertans, crucial changes that should be made, and as a consequence, we feel that Alberta elected officials should be making representations on those changes before this Committee.

[Page 103]

I think in general it would be our submission, Mr. Chairman, that there must be a middle ground between extreme centralism on one hand and extreme provincial rights on the other; but moving to perhaps the first, I think really crucial point that I want to make, there should be no misunderstanding; the concensus, and I say deliberately “concensus” among Albertans is that there must be provincial ownership and control of resources.

That is a position which is basic to all four political parties in the Province of Alberta, that is the position which has been paramount, I think, as a view of Alberta’s role in the country since really 1930 when the United farmers government succeeded in the transfer of natural resources. and I think that it is important, even though some of us, Mr. Chairman, have been ardent federalists over the last number of years and have had our differences with the present administration, it is important to underline just how strongly the resource issue is felt in the Province of Alberta.

Now, I would say to the members of this Committee that we are encouraged with the proposed amendment with respect to the clarification of resource jurisdiction,

On the issue, for example, of access to indirect taxation, in the Province of Alberta, that could yield a significant amount of additional money, We are looking in the neighborhood of between $600 million and $700 million potential revenue to the Province of Alberta as a -result of the amendment on indirect taxation, but I would go beyond that, Mr. Chairman, and suggest to the members of the Committee that we think that the resolution and the amendment would be strengthened if this Committee were to recommend to the House of Commons the proposal made by the Premier of Saskatchewan that there would be clarification with respect to international trade as far as the normal controls, if you like, that the provinces should use with respect to production, conservation, etc., but clarification of that, not on a completely unconditional basis, but as I read Mr. Blakeney’s brief to this Committee, the suggestion was made by the Premier of Saskatchewan that where there is a conflict between the federal Parliament legislating in this area, and the provincial legislature, federal paramountcy would prevail; but where there is no federal legislation, it seems to me, Mr., Chairman, that there should be a clarification if we are going to be really serious about the question of provincial ownership and control of resources,

I want to underline that, because it is, as I mentioned before, not just the position of the paty that I represent, but I think it would be the position of all members of the Alberta legislature.

If I can move to deal with some of the other points in our brief, Mr. Chairman, we feel that the question of equalization is very important. We fully support equalization, we think it should refer to payments to provinces, but we also would acept the view that the provinces should have a role in equalization as well.

It is worth noting, the members of the Committee may recall that interprovincial equalization was first proposed at the 1945 federal-provincial conference, by the late George

[Page 104]

Drew. It is our submission that on the question of equalization, the provinces should in fact be playing a role.

Moving from there to the issue of a Charter of Rights and Freedoms. there is little doubt that a good deal of controversy surrounds whether or not we should entrench human rights in the constitution. Many people argue, with a good deal of conviction, that it is inappropriate to entrench human rights in the constitution, that there are better ways of defending human rights in the constitution, that there are better ways of defending human rights than having it as basically part of our constitution.

We have reviewed that argument and have decided as a party in Alberta that we should in fact entrench a Charter of Rights and Freedoms in the constitution. But we would suggest that in addition to the question of a Charter of Rights and Freedoms it is absolutely essential that native rights be entrenched before patriation.

I would just point out to members of the Committee that in the fall session of the legislature I proposed an amendment to the provincial government’s motion on the constitution amending formula which called for a commitment by the Alberta legislature to entrench native rights. However, as from time to time happens in a House where you have five opposition members and 74 government members the amendment was not passed. But the point I think needs to be made again and that is that it is a crucial issue and we fully endorse the entrenchment of native rights in the constitution.

On the issue of language rights, it is our view, members of the Committee, and here we agree with the Premier of Saskatchewan who has suggested that language rights are not essentially human rights, as they are Canadian rights. They are rights that exist because of Canada’s history, because of its background, because of its development. But we feel that in fact there should be a recognition right across the country of language rights, not just in some provinces but we feel right across the country. In this respect we go perhaps somewhat further than any of the submissions that I think you have heard to date from at least provincial governments or political parties.

Now, if I can just change pace somewhat, Mr. Chairman, we would argue that in addition to some of these items which are part of your consideration in the patriation resolution there are further changes that are necessary to make federal institutions more representatives. This is important if we are going to deal with the growing alienation in Western Canada today.

It is our submission that a limited form of proportional representation, perhaps as recommended by the Pepin-Robarts Commission or perhaps as others have suggested, would be useful at this time.

In addition to limited proportional representation we would suggest, and I hope that honourable members of the Senate will not be unduly concerned, that the Senate be abolished and that it be replaced; it be replaced with a new council of the provinces. We would suggest a council of the provinces where there would be equal representation from every province, regardless of size, where there would be one vote where all

[Page 105]

items that deal with federal and provincial overlapping jurisdiction would automatically be dealt with.

We think it is very important that if a council of the provinces is going to be workable it must in fact almost be a variation of the federal provincial conference. We have got to bring into the federal context the decision makers at the local level otherwise we are simply going to have another layer of government which will be in many ways redundant and in our judgment not very effective in dealing with the problem of input where it counts on some of these issues.

We suggest the entrenchment of the Supreme Court and in addition to that we would argue that the council of the provinces should have an advise and consent role with respect to the selection of justices of the Supreme Court.

One of the most controversial issues, of course, on the constitution agenda today is the proposed amending formula. We do not support the Victoria Charter. We suggest that if the government moves ahead without significant changes or if the Committee does not recommend significant changes in the Victoria Charter, we are going to have some very serious problems in this country.

It would be our submission that the alternative is not, as some have suggested, the Vancouver consensus. I should perhaps clarify my own position on the Vancouver consensus.

This is a position that is very closely modeled on the amending formula proposed by the government of Alberta as a consequence of a legislative debate in 1976, with a form, if you like, almost of special status for every province with an opting in and an opting out provision.

It is our submission, quite frankly, that were the Vancouver consensus the basis of an amending formula over a period of a number of years you really would not have any kind of systematic approach to federalism at all. You would have a patchwork kind of constitution. You might have equal provinces but you would not have Canadians that would have equal rights.

You might have equal access to the decision-making process by politicians but in terms of the rights of people there would be a totally different situation from province to province.

I can see in addition to that, Mr., Chairman, that there would be very serious problems in terms of developing policies over the long run because in some areas the federal government would have jurisdiction but in other provinces they would not. I realize it can be argued, as it has by the Premier of Alberta, that we already this to a certain extent but in our review we find that that is very limited and the suggestions made as a consequence of the Vancouver consensus would over the long haul create, we believe at least, an absolutely impossible long term situation.

As a consequence it is the submission of my colleagues that the so-called Toronto consensus is a better approach and that would be the House of Commons or Parliament, House of provinces, Senate whatever; seven out of 10 provinces with 85 per cent of the population—we suggest 85 as opposed to 80, the province of Saskatchewan suggested 80—but that we

[Page 106]

would see three major areas being subject to unanimity: education, natural resources and language rights.

We would go one step further than that. We would suggest that on those major items that there would be access to a referendum among all the people of Canada. I know that the referendum issue is a difficult one but if we are making substantive changes in the constitution it is our view that the constitution once changed as a consequence of the process that has been set out, and I think the Toronto consensus is a very workable formula so that we have the checks and balances, but once ratified by the people of Canada in a referendum would have a much stronger standing in terms of the long haul than simply leaving it through some kind of mechanism.

I guess our basic submission, Mr. Chairman, is that since sovereignty flows from the people if we are going to make material changes in the way in which we designate our sovereignty between the two levels of government then it is not an unreasonable proposition that that be made as a consequence of a referendum.

Now one of the advantages of our council of the provinces approach is that there would be an agency, if you like, or a level of the federal government that would be able to work out the rules of the game for referendum, the questions to be asked as opposed to the kind of situation now where we have so much controversy over who in fact will ask the question and on what terms because remember our council of the provinces would be based on equal representation from every province.

The council would also allow for provincial initiation of referendums as well as initiation by the Government of Canada.

Mr. Chairman, in briefly concluding my remarks I would like to suggest to members of the Committee that while I cannot speak for all Westerners I think I can with a good deal of accuracy speak for Albertans in the sense of at least being able to assess public opinion in that province.

I have travelled many, many tens of thousands of miles, over a number of years, in Alberta. Western alienation is growing and I think it is fair to say that the mood of the West in 1981 is restless. It is unfortunate that the separatists are cashing in on a century of alienation.

But it is perhaps worth noting, Mr. Chairman, that Western alienation over the years has essentially been a positive force, a positive force in the contributions of people like Jimmy Gardener and the Liberal party from Saskatchewan or the John Diefenbaker”. or the M. J. Caldwells or the Ginger Group that represented Alberta for many years, or some of the members of the Social Credit Party.

Much of the support for populism in the West among all four parties had its roots in that sense of alienation. And alienation has lead to some fundamental changes in Canada initiated in large measure by Westerners, whether it be the Wheat Board or the Crows Nest Pass rates or many of the important advances in social legislation which to a large extent had their beginnings in Western Canada.

[Page 107]

It is rather ironic today that the separatist movement has a platform which in many respects would be an effort to repeal so many of the things that Westerners achieved over the years in this country. But I suggest that unless this issue is handled with some care and some sensitivity that alienation which has always been there and is a significant factor in Western Canada could lead to an increase in the growth of outright separatism.

It is fair to say, though, Mr. Chairman, that the moderate voices are still in the majority, I think significantly in the majority. But I would hope that we would see some accommodation on the constitution, some accommodation too on the energy question.

It is very important in our View that we get back to the bargaining table on the energy issue because this is yet another issue that is creating enormous discord in this country.

I would conclude, Mr. Chairman, by saying that we in the New Democratic Party of Alberta regret the unilateral action of the Government of Canada but the question is how does one proceed now. I suppose one option would be to say let us go back to the bargaining table. That option has some legitimacy. I suppose one option would be, as some suggest, to tight in every conceivable way and we have provinces that are now taking the issue to court.

But I suggest perhaps the best approach in the long run, in our view at least, is to attempt to make changes in the patriation resolution so that the final resolution would be more acceptable to the regions. It is not possible for me to speak for the people of Quebec, for the people of Atlantic Canada, but I think I can say that among Albertans if there were major changes first of all in the amending formula so that the concern over a resource grab would be alleviated by a more acceptable amending formula. If there was further clarification on the resource amendment, as has been proposed by the Premier of Saskatchewan, that would be a step in the right direction.

And I think that on the question of the Charter of Rights— here I suppose it is not so much a regional issue as a philosophical question but I suggest that the entrenchment of the Charter of Rights with particular reference to entrenching native rights would go a long way to improving the resolution and making it more acceptable to Canadians, but in particular Canadians in Western Canada.

Some of us are not afraid, as Albertans, to be referred to as federalists without any sense of embarrassment. I gladly take that title and role and never back away from it, but for the federalists of all parties, of all four parties, to be able to successfully sell making federalism work for the West, I cannot underestimate the importance of the Committee making some recommendations for changes which would make this a more saleable proposal to the people of Alberta and Western Canada.

Now, Mr. Chairman, if I may I would like to just ask several of my colleagues to briefly augment what I said in certain areas and then we would be glad to ask any questions that members of the Committee have.

[Page 108]

Perhaps I could ask Muriel McCreary to deal with the question of some of the changes necessary in federal institutions.

Ms. M. McCreary (Co-Chairman, N.D.P. Constitution Committee. Alberta New Democratic Party): Yes, we have proposed proportional representation in a limited fashion in our proposal and while we are very well aware that there are difficulties with the concept, we feel that on balance the representation in the House of Commons that would result from a proportional representation element would greatly improve the balance that is so lacking at the present time.

The council of the provinces which we have proposed is quite a different concept I think and some of the things that are very important about this—I think that probably the easiest way to visualize how this would work is at the present time we have federal provincial conferences on a fairly regular basis and input from the provinces on many issues. But as it is now set up the provinces are not responsible for their actions at home. They do not have to make a stand. They do not have to vote at these conferences, and what we propose in the council of the provinces is a federal level of government which has input from the provinces but that the provinces when they go back home are on the line for what they are doing at the federal level.

We propose that the representation from all provinces would be equal, that the vote would be a block vote representing the province and also that the representation in this council would be a flexible representation that the provinces would send people to the council of the provinces in response to the issues that were coming up.

The council of the provinces would only deal with matters of concurrent jurisdiction and also amendments to the constitution and also the ratification of Justices to the Supreme Court. In any area where only federal jurisdiction was involved that would not go to the council of the provinces. In any area where the federal government was implementing the program that was direct from the federal government to the people or that was on a one to one basis with any province, that would probably not go before the council of the provinces.

We think that it is extremely important for the Supreme Court to be entrenched in the constitution. We think that it is extremely important that that entrenched Supreme Court be not seen to be the tool of one level of government and therefore this is why suggest that ratification of any Justices would be through the council of the provinces so that the perception would be that that was a national court, representative of the nation as a whole.

Mr. Notley: I will ask Mr. Swan, if I may to deal with the natural resource section.

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

Mr. Davis Swan (Chairman, Alberta New Democratic Party, Energy Committee): Mr. Chairman, members of the House of Commons and Senate, I would like to spend a few

[Page 109]

minutes flushing out our proposals with regard to national resource control.

It is important to know that the concerns over the control of natural resources have existed in the West and other parts of the country since the time of Confederation.

In the West it is particularly important because there the revenue from natural resource production and development is a fundamental basis of the Western economies.

So the concern is not really one of greed or attempting to get their own back on other parts of the country but is a very legitimate concern with respect to the basic economic foundations of the West.

For that reason, most submissions-for example the Saskatchewan and our own submissions—are calling for a very definite classification in the role of provincial governments with regard to resources.

Section 109 of the British North America Act is very weak and does not deal with resources in any clear and concise way.

As a result, our submission contains three basic proposals. Those same proposals are contained in the Saskatchewan brief.

The first is the power to regulate exploration and development, conservation and management of resources. That is a basic fundamental power of resources that we need.

The latter two points arise out of court cases which have occurred in the last decade which has brought into dispute the role of provincial governments in regulating resources, production and development. The first of those is the challenge to some of the taxation measures and to alleviate that problem we would suggest giving the provinces the right to impose both direct and indirect taxation.

The second is to give the provinces at least some jurisdiction with respect to regulating production, even if the resource is being primarily exported from the country.

This in no way detracts from the federal government’s role in respect of international relations in the export of most goods.

What it is trying to do is to give the provinces a way of legislating in areas where the federal government really is not very concerned.

What we have had in the past is that provincial laws were struck down simply because they dealt with what was perceived to be a federal matter although the federal government had not been taking any offence or were disagreeing with those laws.

For that reason, we suggest in our paper, which is very similar to the Saskatchewan suggestion, that provinces should be able to legislate in this area.

We further suggest that the federal government must have paramountcy with respect to international trade in that area, but with respect to interprovincial trade, we would suggest

[Page 110]

that the test of compelling national interest must rule, the federal government over-riding provincial powers.

We recognize that these provincial regulations should not discriminate against Canadians in other parts of the country with respect to pricing and taxation.

Mr. Notley: Mr. Chairman, Mr. Stevenson would comment on aspects of the Charter in regard to Rights and Freedoms.

Doctor Garth Stevenson (Alberta New Democratic Party): Mr. Chairman, and honourable members, as Mr. Notley pointed out earlier, we do support the principle of entrenching Human Rights in the Constitution.

We do not view this as a question of centralization or one which divides the interests of the East from those of the West, but really as a measure which would strengthen the individual against the state, and by the state we mean both levels of government.

While we respect the argument that the judgment of the legislature should be relied upon, at the same time we believe that in certain circumstances the rights of unpopular individuals and unpopular minorities may not be adequately protected if left to the legislatures to deal with. This is an unhappy fact, but one which has been demonstrated by a great deal of Canadian history.

So on these grounds we do support entrenchment.

Our brief, you will notice, does not go into very much detail concerning the substantive content of our Charter of Rights, although we have been impressed by the testimony of a number of groups which have already appeared before you.

However, there is one comment we would like to make, namely that we, along with some others who have appeared before you, do take exception to what is practically the first clause of the proposed resolution, which says-that “subject only to such reasonable limits as are generally accepted in a free and democratic society under a parliamentary system of government”; we feel this is either unnecessary or dangerous, possibly both, in that it is really taking away with one hand what is given with the other. We would support its deletion from the proposed Charter.

We would also like to make the point that it should be made clear that the rights protected apply only to natural persons, that is to say to human individuals in the ordinary sense of the word and not to corporations.

In the United States certain of the rights, notably the right to due process referred to in the fifth and fourteenth amendments of that country’s constitution, were, in effect, mobilized on behalf of corporations to protect themselves against regulation by either Congress or the legislatures of the states. We would regret to see a Charter of Human Rights used for that purpose in this country.

That is one particular comment we would like to make.

Of course, we support very strongly, in addition to the ordinary catalogue of individual human rights, two particular categories of collective rights which, in effect, as Mr. Notley

[Page 111]

pointed out, are inherent in the whole course of our country’s history, the right of our aboriginal peoples and the equal rights of the two official languages right across Canada, We feel very strongly that those rights must be protected as well.

The Joint Chairman (Senator Hays): Thank you very much. Before I call on the first people to question you, hopefully

we could adjourn about 6 o’clock, because we have another meeting at 7:30 pm. and another one at 8:30 pm.

Mr. Hawkes.

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

May I, on a point of order, begin by asking for the concurrence of the Chair and the Committee in appending two further documents to today’s proceedings.

The documents in question are the Alberta Hansard for Monday, November 24, in which the Legislature took a position on patriation of the constitution. The debates are interesting and the resolution is interesting and would be informative to all members of the Committee.

The second document is one entitled Harmony in Diversity, October, 1978.

The reason for that is much the same. Committee members will find it to be very informative. Further, the witnesses here before us today referred to this document in their presentation. I think members of the Committee and the general public should have access to the document itself.

The Joint Chairman (Senator Hays): Is that agreeable? We should like to hear first from Committee members as to how they feel about it.

Mr. Corbin.

Mr. Corbin: I, for one, do not want to be accused of eastern arrogance or anything like that but it is a most unusual procedure. If we do in fact go ahead with the proposition and append these documents, what then is the rule with respect to all of the documents we have received by way of correspondence and everything else. I have piles and reams of such papers. Are we to print those as well?

I think there should be some basic ground rules, I am not against the proposition per se. But from what point do we start to deal with these suggestions?

If the proposition had come from the witnesses this afternoon, then we should treat it differently from one coming from a member of the Committee.

These are the only comments I wish to make.

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

Mr. Mackasey: I think the most fundamental thing Mr. Hawkes has articulated is that he wants members, quite legitimately, to have access to documents which he thinks would broaden our perspective and give us certain of the views of a very important legislature, Alberta’s. I think a good compromise would be that we should circulate it to the members who want it. I think that is what Mr. Hawkes really intended.

[Page 112]

The other dilemma is that everybody who gets the document would have the document, and this opens the door to all the other documents that Mr. Corbin referred to.

The short term solution in my view is yes, I would like to have one of those documents, and perhaps Mr. Hawkes could move a motion that they be photostated and circulated to all members of the Committee.

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

Mr. Nystrom: On the same point of order, I want to say that I sympathize with the intentions of Mr. Hawkes. I understand that he wants to make the material available where possible. But I would like to remind you that the Harmony in Diversity document has already been circulated by the Alberta government some time ago, and it would be in our hands and if there is someone who does not have it, I would be more than willing to supply it to that person.

In terms of the debate in the Alberta Legislature, once again, we could easily circulate that to all members. But I would like to remind you, also, that there was a debate in the British Columbia Legislature, as well as in the Saskatchewan Legislature, the Ontario Legislature, Assemblée Nationale du Québec, and there could be many documents that we are appending, and I do not think it is necessary to circulate these things.

The other thing is that in the spirit of co-operative federalism, the Government of Alberta and Mr. Lougheed have chosen not to appear before the Committee, and I am not sure they would want us unilaterally to append their document.

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

Mr. Epp: Mr. Chairman, with regard to the point made by Mr. Hawkes, first of all, Mr. Nystrom is correct when he says that he cannot speak for the Government of Alberta. I am certain that he is right on that score.

However, it is difficult to append the Hansard of another legislature. That is for the public record. Everyone has access to it.

But I think there is a difference, though, in terms of a brief, for example, Harmony in Diversity which is before us, because mention of it is made in the presentation of Mr. Notley on page 5, where he says at page 5:

Amazing though it may seem, the constitutional position paper adopted by the Lougheed government, Harmony in Diversity, has nothing to say concerning the role of the federal government.

That is the interpretation of Mr. Notley, and he is entitled to that interpretation.

But in terms of the future and the record of this Committee, as a person reads that record it is quite another matter, and an impression might be formed by a person reading it and not having access at that time to Harmony in Diversity, that stays on the record unchallenged.

I am not saying Mr. Notley is not entitled to that position, but I am not saying that is the only position.

[Page 113]

That being the case, I would not support the appending of a Hansard which is a matter of public record; but I believe because it has been referred to in the document, the Harmony in Diversity document, it should be appended.

Mr. Mackasey: Mr. Chairman, I would like to add something. I know we are wasting time, and I suppose I should not say that. But supporting Mr. Epp’s last argument I think in the House of Commons we could insist that that document be tabled, and if you insist the Chairman would have to rule that that latter document be part of the proceedings.

Mr. Epp: Mr. Joint Chairman, I would move—and I regret I do not have it in writing—that the document Harmony in Diversity be appended to the hearings of this Committee.

The Joint Chairman (Senator Hays): Is that agreeable to the Committee?

Some hon. Members: Agreed.

The Joint Chairman (Senator Hays): Go ahead, Mr. Hawkes. You have used up 11 minutes of your time.

Mr. Hawkes: That was a point of order, Mr. Chairman. I thank the Committee for going that far.

I would point out to Mr. Nystrom that the Hansards of a Legislature are not the property of the government.

The Joint Chairman (Senator Hays): On a point of order, Mr. Hawkes: You started this.

Mr. Corbin.

Mr. Corbin: On a point of order. If we are to append documents, we should first and foremost append the document which was put before the Committee today entitled Towards a New Canada, the Moderate Option, Proposals for the Reform of the Canadian Constitution presented by the Alberta New Democratic Party.

I think the appending of a document such as this is most relevant to the work of the Committee.

There will be questions referring to some of the content of this document that the general public reading our records, will not be aware of.

It is encumbent upon us to have this appended, and I so move.

The Joint Chairman (Senator Hays): We will see that is done.

Go ahead, Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman.

I will begin the formal questioning part by welcoming some fellow Canadians from the Province of Alberta. I do not think we say it that way often enough.

Last night at Committee I said I felt there was no region in the country, no province in the country in which we had people who felt more Canadian.

I become disturbed by what I view as some separatist moves by the Government of Canada, because they have separated us from our legal traditions, our governmental traditions and some of our economic traditions from time to time.

Without sufficient thought and the type of alienation which you have talked about is a consequence of that.

[Page 114]

I was pleased, in reading your brief and listening to your presentation, and reading your speech in Alberta Hansard on the debates on the resolution, to find the degree of concurrence which I think is shared by most Albertans on a number of issues.

As I experienced living in this region of the country, because I am elected to office, there is a sense in this part of the country of thinking of Canada as a series of regions. I think our sense of having provinces as equal partners in Confederation is a bit more finely developed in our region than I find here, and I am pleased to see concurrence in that principle of equality of provinces, the sense of partnership within Confederation which, I think, runs throughout your brief.

I am pleased to see in your brief your own particular party and its effort to search for a better sense of institutional change in Canada which might make our nation work a little better and provide a somewhat better voice at the centre in terms of the federal government. I may not agree with some of the particulars, but I asked for the document, Harmony in Diversity, to be attached because of a sentence which Mr. Epp referred to.

When I read Harmony in Diversity, I did not agree with all the particulars, but I saw it as a search for strengthening Confederation, including the federal government, for making the institutions which now exist function a little better in many cases.

I felt that readers should be in a position to judge for themselves whether or not it does what you feel it does.

But in any event, in our region of the country we do search for ways to make this country work better. We certainly do not search for ways to make it work worse. Hopefully, we will continue that dialogue and get some resolution of that.

Your concern for the protection of individual rights is also shared by members of our party and the mechanisms to do that may vary a bit.

I was pleased to see that you have addressed, at least in a small way in your brief, the fact that as we move to a Charter of Rights we must also move to a system of judicial appointment which has more aspects of public scrutiny. That is the position we have tried to promote in this Committee from time to time, and we would hope the amendments the government brings down on Monday might address themselves to that issue.

I think it is important that the background, training and the kind of values that judges bring to the bench would be more important once we hand them this additional type of responsibility.

Missing from your brief—and I would like you to address it—but there is a concept which has floated in and out of our world in these hearings; I think there is a general agreement amongst all members of this Committee, that individual need protection from government. But a lot of groups have come to us saying that collectivity, whether we talk about a separate school or a native tribe, needs protection from the state. Perhaps the next level of conundrum is the protection from

[Page 115]

individual rights: that was expressed to us clearly by one group in terms of separate schools, that if they do not have the power to discriminate on the basis of religion, for instance, then how can they hire a Catholic school teacher, for instance, to teach Catholic values to Catholic children.

I am wondering if that is just an oversight or whether you have considered it and then decided it was too complex a matter to deal with and left it.

Mr. Notley: Mr. Hawkes, I do not think there is any question but that that is a very complex question. I am going to ask Mr. Stevenson, if he likes, to comment on it.

I would say that in terms of our discussions as a Committee, to be completely accurate, for your information consideration by the council of the Democratic Party which approved the document did not go into that specific question of the problems of collective groups as compared with the individual.

We have, of course, seen some interesting cases in Alberta with respect to our Individual Rights Protection Act and our Human Rights Act.

You may recall several years ago a decision which was made with respect to the Alberta School Act on the Mennonite school question, the category four schools, a rather significant decision was made by a provincial court judge, and at that time we felt it should have been referred to the Supreme Court of Alberta for a more definitive ruling.

Perhaps Mr. Stevenson would like to comment.

Professor Stevenson: I think that in many ways there are difficulties certainly in putting down in precise terms any Charter of Human Rights to a degree that we have to rely on the commonsense of the courts in dealing with any particular set of words and phrases and an interpretation related in some way to the prevailing values of the time.

The point about Catholic School boards being prevented from hiring a Catholic teacher to teach religion may be a good debating point, but I find it extremely difficult to imagine that the Canadian judiciary would interrupt the Charter of Human Rights in that fashion.

Mr. Hawkes: It depends upon the words, because courts are bound to interpret the words that we give them as legislators.

Professor Stevenson: There is a great deal of creativity in the judicial process, particularly when you are dealing with human rights, and the American experience shows this.

But I am not suggesting for one moment that there should not be great care taken in the drafting, but we did not go into details very much in our brief.

Mr. Hawkes: Let me stay with the same point for a minute. One of the interesting things in your brief and presentation is that you seem to agree with the aboriginal peoples’ perspective right down the line on the two major issues; one is that the enshrinement of those rights must occur prior to patriation, and secondly, that they have a continuing role to play in the amendment of those rights; they cannot be ignored.

[Page 116]

The first thing that interests me is that Premier Blakeney took the opposite position and they may reflect the situation of being in or out of power rather than a party principle.

There is one question which I have been dying to ask this morning, but did not do so because time ran out.

The Joint Chairman (Senator Hays): This is your last question.

Mr. Hawkes: It relates to a conundrum. The tone of your brief is such that I believe I am right in assuming that you want to protect the rights of aboriginal people, to protect a number of things, but one of those things is their culture.

I would presume that you are consistent with the New Democratic Party position related to the rights of women and the need in a Charter of Rights to avoid discrimination on the basis of sex.

Then I come in my mind, I guess, back to my social science background where I understand clearly that some of the Indian nations in Canada are patriarchal in terms of their culture, others are matriachal.

Now, if we want to enshrine their rights to protect their culture and we also want to do this other thing over here in terms of the rights of women and to eliminate sex discrimination in our society, how do we do that?

We are a Committee that is being forced to quit hearing witnesses on Friday of this week, to move to clause by clause and report back to the House of Commons on February 6. How do we simultaneously meet those two objectives at the same time?

Mr. Notley: Well, Mr. Chairman, Mr. Hawkes, you do pose a conundrum, there is no question, a difficult question.

I would say with respect to the aboriginal and native rights, we do have in my view a very definite obligation to deal with this in a serious way by entrenching it in the constitution. We are dealing with land which in fact we took from people who occupied it.

It seems to me that it is so fundamental that we entrench treaty rights and also the process by which ambiguities can be overcome, and in the Legislature I have proposed the amendment which I think you are probably aware of, having read that particular debate in the Alberta House with respect to the 1763 Royal Proclamation.

I guess I would argue that it is such a fundamental question in our submission that it should be entrenched and I realize there are variations of it. I am not sure if we can ever devise a charter which would deal with all the variations and that, as a consequence, because there might be a problem down the road because of a matriarchal or patriarchal society, therefore this might affect some other aspects, that we cannot move forward.

I think one of the reasons that we are going to have to have changes in the way in which the Supreme Court is chosen, as Mr. Stevenson has pointed out, is that there will have to be a good deal of judicial interpretation and it is going to be difficult.

[Page 117]

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

Mr. Nystrom.

Mr. Nystrom: I would like to welcome Grant Notley and my Alberta friends down to the Committee today and ask him as a person who has recently, as an outspoken Federalist in Alberta, done a tour of the province promoting federalism, modern federalism and the evolution of our country in modern times, whether he can tell us a bit more about the depth of Western alienation, the depth of Western separatism?

We had, Mr. Notley, Stan Roberts from the Canada West Foundation down here, roughly the end of November, and he came to us with a poll that asked literally dozens and dozens of questions about Western alienation and it showed that more Westeners felt they had more in common with the Western United States than with Central Canada and Eastern Canada; it showed about 38 per cent of Eastern Canadians ready to contemplate the possibility of independence in the West. We had a statement by the British Columbia Ministry of Intergovernmental Affairs in the province of my colleague from Mission-Port Moody, he said in his estimation if there was a referendum in that province on sovereignty association, over a third of British Columbians would probably vote yes to the question of sovereignty association.

Also, when Mr. Roberts was here with the Canada West Foundation he said in response to one of the questions that the poll had been taken before the energy package was known and was taken before or just during the release to the public of the constitutional package, and in his estimation the extent of Western alienation would have increased significantly since the poll had been taken and it was very great at that time, as you know, and that the feeling of separatism in Western Canada would also have increased.

We also know, of course, since that time we have had the monster rallies in Alberta of Western separatists, we have had also rallies in small towns of 300, 400, 500, 600 people in Alberta seeking Western independence, and most of this has been centered in the province of Alberta and you have gotten back from a tour, you have been outspoken in the province, you as well as people from the other four political parties as well, and I just wanted to have you give us a bit more of your assessment as to whether or not the roots of Western independence now are there, are they firmly implanted or if they are not firmly implanted, are they close to being firmly implanted and how serious is it?

Mr. Notley: Mr. Nystrom, I think it is very serious. There is no question that right now, if a vote were held on separation, a very sizeable majority of Albertans would vote no to separation. I do not think there is any question about that; but what is disturbing is that 10 years ago, if one had asked the question: should we separate? You would not get one person in a hundred who would seriously entertain it. Now there is a significant minority, perhaps anywhere from 10 to 15 or 20 per cent.

What is more troubling than the outright separatists is the alienation that has led a lot of my fellow Albertans to be “yes, but” Canadians; I am a Canadian, but unless something is

[Page 118]

done on the constitution, unless something is done on the energy question. unless something is done about our grievances. I think that there has been, in my perception, it is just my perception but I have travelled extensively in the province, there has been a perceptable increase in that uncertainty, not that it has led people to say that I am going to join the Western Canadian concept, but that a lot of reasonable people are not quite as without reservation unequivocally committed to Canada, as would have been the case ten years ago, and I think that it would be wrong for any of us to blithely assume that this is just a little bit of smoke, there is no fire there, we can ignore it, it is not of any consequence. I suggest that it is.

The alienation, as you well know, Mr. Nystrom, and so do most members, especially Western members on this Committee, the alienation has existed for a century or more. It is more severe now, and the danger is that unless we can, (a) on the constitution and, (b), on the energy package, reach some accommodation in a spirit of goodwill I think we are going to be opening up territory for the extremists, who are a minority at this stage but they are a vocal minority and they are well financed or they have the potential of being well financed and I do not think that we want to equivocate on it.

However, I think it is not just a question of Albertans saying we oppose separatism, I think it is a question of Canadians recognizing that there are some legitimate grievances in the West, not just in Alberta, that are not just complaints that have been there forever but are legitimate grievances because the West has not, in my judgment, in the debate, for example, in the 1960s over two nations and the whole dialogue of the 1960s, the national political parties, our own party but the other two parties as well, I think overlooked the fact that this country is Upper and Lower Canada but it is also more than that, it is Atlantic Canada and it is Western Canada, and I think our failure to, in the national sense, recognize that is now causing problems which we have to overcome in a spirit of harmony and goodwill.

Mr. Nystrom: You mentioned some figures that are I think very terrifying. You said that 10 per cent, maybe 15 per cent, maybe 20 per cent of Albertans would favour separatism, and I remind you in Quebec, when you take polls asking how many people would like to separate from Canada, Mr. Mackasey can correct me, you usually get back the response of around 17, 18 per cent. Separatism is a very negative word, it is tearing things apart, pulling things apart, and in Quebec you find that if you use the word “independence” it becomes more positive, if you use the word “sovereignty association”, it becomes more positive, if you use the question of willing to negotiate sovereignty association then 41 per cent said yes.

I noticed, as I said earlier, that the minister in British Columbia referred to a possibility of a referendum on sovereignty association, which is probably an awkward word in English because it derives from a French term, but someone is going, if this alienation keeps on growing, to find a term which means the same thing in the west.

[Page 119]

Mr. Mackasey: If I may just say that sovereignty association is another way of saying you can have your cake and eat it too.

Mr. Nystrom: That is perhaps an appropriate definition of the word from Bryce, but someone is going to find an appropriate definition in Western Canada if your assessment is correct and the feeling keeps growing. Then what does that 18 per cent become, what does that IS or 20 per cent become. I think that really terrifies me.

However, I wanted to ask you, though, and maybe you can comment a bit more on it, Mr. Notley, but you have made a few strong criticisms of the resolution before us today and I would like to ask you, in light of the mood in your province, could you sell this resolution to Albertans if the resolution remains as is or largely unchanged?

Mr. Notley: Mr. Nystrom, I think if the resolution remains unchanged the overwhelming majority of Albertans would oppose it. I do not think there is any question about that. Public opinion surveys show deep seated opposition now.

I am, however, of the view that if changes are made, that there is a very good possibility of switching that around and seeing the climate improve considerably, and that is why I stress, and I do this as sincerely as I can, the need in my view for all of us to approach this issue in the spirit of good will and compromise. I think that unless we do make some changes, then I suggest that the potential is there, the potential is there for some person, a combination of money and very effective leadership, to create real problems, to create problems that cannot be ignored and I would just say to the members: do not pass it off as being an irrelevant factor; it has the potential to be very serious indeed.

The Joint Chairman (Senator Hays): Thank you, Mr. Nystrom.

Mr. Nystrom: Do I have time for just one more question, a very quick one and technical one.

The Joint Chairman (Senator Hays): Yes.

Mr. Nystrom: Mr. Notley has been the first person, I think, Mr. Chairman, to come here advocating the Toronto consensus as an amending formula, perhaps someone else has, but if so, I do not recall it. I think it is the first time.

The one thing that is missing in the Toronto consensus, even though I find it a very attractive amending formula and it is also missing in the Victoria Charter amending formula that is before us as well, is the involvement of native people in the amending formula and you are advocating that their rights be enshrined. I was wondering whether or not you would advocate that there be an amendment to your amending formula suggestion so that any changes that deal specifically and solely with native people, be it their treaties or their aboriginal rights, would have to be agreed to by the native people involved, be it the Indians, or Metis or Inuit?

We do have a provision in the resolution before us that says any change in a provincial constitution that affects only one province but not any other province, such as Alberta, for

[Page 120]

example, can be changed bilaterally by the Province of Alberta and the federal Parliament through the passage of resolutions in both Houses and both legislatures.

Would you think it wise to include such a provision in an amending formula for the original people of our Country?

Mr. Notley: I would have to say, Mr. Nystrom, again to be fair to the Committee, that my colleagues and myself have not specifically considered that question, In terms of my assessment of it as an individual, I think it would have some real potential, but as a committee we have not formally considered it.

The Joint Chairman (Senator Hays): Thank you, Mr. Nystrom.

Senator Lucier.

Senator Lucier: Thank you, Mr. Chairman.

Mr. Notley, welcome to Ottawa.

You state in your brief, Mr. Notley, that aboriginal rights must be entrenched. This is a position that has been supported by other witnesses who have appeared before us, many of them, including a couple of them today, very influential witnesses who have appeared before us, and it does give me some problems. I deal a little bit with Indian problems in the area that I am from.

Indian groups appearing before this Committee see their aboriginal rights as allowing them to be self governing nations across Canada, not just one in one area but across Canada, different nations across Canada, with large tracts of land over which they have complete control, including all the resources, renewable, nonrenewable, and also control of most of the laws in those areas.

Do you believe that a country like Canada with three levels of government, the federal, provincial, municipal, would have room for another level of government with a group of people who suddenly become an entity unto themselves?

Mr. Notley: Well, Mr. Chairman, I would say that that would be an extreme interpretation to put on the question of the entrenchment of native rights and aboriginal rights in the constitution. As I understand it, there are some who would argue that and that would not be, from my understanding in discussion with native leaders, the view of all native leaders by any means.

I am going to ask Mr. Stevenson if he would like to supplement what I have said on this issue. It seems to me that the crucial question is the entrenchment of the treaties and then to make sure that aboriginal people have some ground rules which can allow them the negotiating rights which, frankly, have not existed meaningfully in this country. It has been a very unilateral arrangement and I think this is the underlying concern that I had expressed to me by, certainly, native leaders in the Province of Alberta that I have discussed this with.

Perhaps Mr. Stevenson would like to supplement my answer.

[Page 121]

Professor Garth Stevenson (Alberta New Democratic Party): Yes, I think that really, as I understand the positions that have been taken by the native groups that have appeared here, that they have been really eminently reasonable positions and quite compatible with the unity of this country, indeed would strengthen it. I think to view them, as the honourable Senator apparently does, as some attempt to balkanize the country. I would think would be to do them an injustice.

I think the main arguments in favour of entrenchment of rights are, firstly, a treaty which can be altered unilaterally by one party is hardly a treaty in any real sense of the word, and to impose the requirement that the other parties be consulted seems not unreasonable.

Also, many native peoples, rightly or wrongly, believe that the fact that Westminster retains some input into our constitution has given them protection from an impartial third party, which patriation would take away from them, and to reassure them on that score would seem eminently desirable.

Senator Lucier: Well, I quite frankly do not think that you see their problem the same way I do and you may be right. What I am suggesting to you is that there already is a process whereby we recognize they do have some rights, that is why we are into land claim negotiations.

What I am saying is that they have a position of what aboriginal rights really means and that position allows them to do the things that I have just suggested. In fact, if you want to take it to its end, the Yukon, the native people of the Yukon have never signed a treaty, have never given up any land in any way, so they presently feel that they own the whole Yukon. If we entrench that into the constitution why should they negotiate with us? They own it, why should they negotiate it.

My question to you is you are suggesting that we entrench; there is no point in entrenching what we think the rights are, you have to entrench what they think the rights are. If you are not going to do that, there is not much point in entrenching it, and I am not just speaking because of your suggestion; as I said before, there are many groups who have appeared before us who have suggested that we entrench without, I do not think, understanding the full implications of entrenchment.

What I am saying is that as long as it is not entrenched, we have a lot of room to manoeuvre, but if you do entrench you have no more negotiating room, you have given away your position.

Professor Stevenson: It may be that the courts will ultimately have to determine what are the precise implications of what we have entrenched in a particular case.

Senator Lucier: You are hoping that the courts will bail you out, is really what you are saying.

Mr. Notley: It seems to me, with great respect that it is not just a question almost of collective bargaining. It seems to me

[Page 122]

that there are some basic rights and they should be properly interpreted, as Professor Stevenson has suggested, by the courts. The fact that that may in a given land settlement situation strengthen the hands of aboriginal and native peoples is quite probable but I do not think because that is going to occur from place to place that that will occur in every instance nor does it, in my view, wipe out the validity of entrenchment. It seems to me that we have an obligation with respect to our aboriginal people and the point that I have made and others have made and we attempt to make again is that we are dealing with our original peoples and it seems to me that the clarification of those treaty rights have to be recognized in the constitution and that will cause some inconvenience, there is no doubt about that, But I think it is a small price to pay for the equity and the fairness which I think is long overdue.

Senator Lucier: I still have a problem believing that entrenching what we think are the rights instead of what they think are the rights is really not going to do very much for them. I think we are playing games with them, quite frankly. I think we are leading them down the road to believing that if we entrench something that they have got it made, and I do not think that that is the case. I think that some of the things that they are suggesting right now are never going to happen and I suggest to you that you would never allow them to happen and you are suggesting that we entrench but I do not think that any of us know what we are talking about entrenching.

I would like to go on to one other thing in your brief. You suggest on page 9 your council of the provinces, the Northwest Territories and the Yukon Territories and any other future Territories should be represented in the council of the provinces having the right to debate but not to vote. There are two areas where federal provincial things occur affecting the Yukon and the Northwest Territories where the people of the Yukon and the Territories have a vote. One is in the House of Commons and one is in the Senate. You now propose to eliminate 50 per cent of that representation. We already feel like second class citizens, not being able to participate and to vote in these conferences. I wonder if you could explain the reasons for wanting to take away the one vote of the two that the Yukon presently has.

Professor Stevenson: I think to abolish the Senate would in fact increase the power of the House of Commons so therefore in effect . . .

Senator Lucier: In what way?

Professor Stevenson: And therefore increase the value.

Senator Lucier: In what way?

Professor Stevenson: The Senate would no longer be there as a sober second thought, so to speak, as a check on the views taken by the elected House.

Senator Lucier: And that will strengthen the House of Commons?

Professor Stevenson: It clearly would, yes.

Senator Lucier: Okay, but how does that protect the Yukon where we no longer have an opportunity to vote. We can come and talk all we want, but we cannot vote.

[Page 123]

Professor Stevenson: The Yukon still has the opportunity in the elected House.

Senator Lucier: But I said you have eliminated one of our two votes. Let us discuss the one that you have eliminated.

Professor Stevenson: With respect, of course, that one is not elected by the people of the Yukon but appointed at the present time but as we proposed the council of the provinces; it is seen not so much as a legislative chamber in that the usual sense but as really a sort of intergovernmental form.

Senator Lucier: With any powers?

Professor Stevenson: With powers, yes, very definitely, yes.

Senator Lucier: Then why should the Yukon not be entitled to some of those powers.

Professor Stevenson: This is a difficult question and it may be that it will be resolved eventually, I guess we hope it will, by the Yukon achieving the status of a province but there is clearly a difference between the status of a province and that of a territory. That is why I expect people in the Yukon may want to achieve the status of a province.

Senator Lucier: I do not think they would have the opportunity to vote on whether they would become a province or not, if you are allowed to. . .

Professor Stevenson: Do they now?

Senator Lucier: They expect to have, yes. They would have if it is presented as legislation, they would have it now both in the House of Commons and in the Senate, and if we follow what you are suggesting, it would not be there.

Professor Stevenson: The creation of new provinces is not something that would come before the council of the provinces.

Mr. Notley: Part of your question really is, I think, that you have assumed that we are going to take the Senate, abolish it and replace it with a council of the provinces which would have the same role and function as the Senate, and that is not our proposal.

Senator Lucier: No, I did not assume that at all, Mr. Notley.

Mr. Notley: Then I think I just want to underline the fact that we are talking about a different agency, a different function.

Senator Lucier: I understand that. Thank you very much.

The Joint Chairman (Senator Hays): Thank you, Senator Lucier. We have five more speakers and I go to Senator Roblin.

Senator Roblin: Mr. Chairman, I will restrict myself to two questions which I hope will not detain us for too long, but I followed with much interest your presentation, Mr. Notley, and I fund many points of value in it, indeed. I thought particularly your dialogue with colleague on the question of Western separatism and alienation was significant and I just hope that all members of this Committee were listening to what you had to say.

[Page 124]

Then that led at once to the question of whether or not this document we were studying would become acceptable to Alberta, or how it could become acceptable to Alberta, and you gave me the impression in regard to matters of substance it probably could be amended to that end. But it seemed to me in reading the polls that the first concern of the people who do not like what we are doing was not in connection with substance, it was in connection with process. They did not like the idea that this was being dealt with as it is commonly described as a unilateral policy of the federal administration and when I read the statistics of the polls in Alberta my impression was that about 70 per cent of Albertans objected to the process.

Now I am asking you whether you think this would be acceptable to the people of Alberta if we did not change the process in any way but merely change the substance. Is the question of process in your opinion and as a result of your investigations in the province one of significance which we should address.

Mr. Notley: Senator Roblin, it is obviously a factor, there is no question about it. I thought I made it clear that we regretted the unilateral action. It would have been much better I think for us all last September if there could have been a subsequent meeting of Premiers with the Prime Minister, but we have four months of Canadian history that has come and gone and we have a process in place.

Now, I think to be fair to you, to the members of this Committee, I think it was a step in the right direction to extend the deadline from December until February. You will hear a lot more delegations; I think that was certainly an important thing to do, and I suppose the question that I have to ask myself is that while I would not have chosen route if I had my druthers, the question now is, with the sort of real politics of can, are we going to be able to say, no, we are going right back to square one. I think that is unlikely. If one assumes that is unlikely, and I think it is, then the question is what can you do to salvage the situation in an acceptable manner to the region that I think I can speak to with some claim to knowledge of the area. I think that the changes in the package, the changes which would indicate a spirit of good will and accommodation, would go some considerable distance and I would suppose that in the sort of difficult world of shades of gray, I think that is the shade of gray that is most likely to work at this stage.

Senator Roblin: I hope that we can arrive at that degree of accommodation which you suggest, and of course that really is a very critical point, as to whether the flexibility is sufficient to encompass the problem. I must say I have some reservations as to whether we may succeed in that but I also feel that if we ignore the question of process we are going to try and get around the whole idea of consensus and legitimacy on those fundamental things in constitution making where the consent of the government is really required. I have had your opinion, and I thank you.

The other point I would like to mention is in connection with your proposals for a reformed Senate or for something else

[Page 125]

altogether. I am not wedded to the present arrangements and it does not offend me at all to hear someone propose something different for the Senate. I just have some problems however with your proposal because it seems to me that it imports into the federal decision making process a provincial power which is not reciprocated in the other direction. It seems to me if you are going to have a house of the provinces which is going to rule on certain matters, concurrent jurisdiction and things of that sort that you mentioned, which can frustrate the federal Parliament in that respect, the federal Parliament will probably ask for a provincial council where it can do the same thing with legislation that arises from the provinces; but I think really there is a better solution. I am not sure whether I can sell this to you or not, but perhaps you might have a comment on it, and that is that in these days an appointed body is really not consonant with our idea of democracy.

I do not really think it improves matters much to have a body appointed by the federal Prime Minister; I do not think it is much better to have a body appointed by somebody else. I would rather do away with the appointed principle; and the drum that I have been beating is for an elected Senate, which would be elected on the basis of proportional representation and then you would have a legitimate input into the federal process from provinces, particularly if it was elected at the same time as the provincial government, although that is open to debate.

I wonder whether you have considered there is any merit in the concept that an elected Senate with powers that did not frustrate the House of Commons, because I think that is the important consideration in dealing with a second House, that would preserve the good things about the present Senate, and there are some good things such as its review of legislation and the committees that it sets up, and yet at the same time gives it a legitimate base of the electorate of each province, It seems to me that that is an idea that appeals to me more than the house of the provinces and all those various combinations and permutations that have been suggested in that respect.

Mr. Notley: Senator Roblin, we did very specifically look at that option. We rejected it, although recognizing that it would I think be an improvement over the present situation, I think there is no question about that. But we rejected it because we really felt that our concept of the house of the provinces was really a somewhat different process,

We thought it was important that there would be provincial input in federal decisions that have ramifications both federally and provincially and that the national will of Canada is not just the will as defined by the majority in the House of Commons but can frequently be the will as determined by provinces and the federal government working together, and that in actual fact over a number of years now we have seen a number of major changes in social legislation, in tax legislation, we have set oil prices as a consequence of an informal arrangement, federal-provincial talks that have had an enor-

[Page 126]

mous impact on the whole quality of public life and government services in this country, and it was our feeling that the council of the provinces as a second chamber would allow us to formalize that in a context where a decision would be made, but the decision would be made on the basis of equality for each province. and for that reason while we gave some considerable thought to the structural changes that you suggest in the Senate, we opted for this other proposal.

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

Senator Roblin: I just want to make one comment and then I will be through. I see your point, but I do not agree with it. I think that you are importing a provincial power into the federal system and the federal people will then say we want a similar power dealing with what is going on in the legislature of the province of Alberta. The second thing I think is that you want to institutionalize the dominion provincial conference by giving them a veto and if that is not a recipe for—what do you call it, what are we worried about these days—not road blocks but deadlocks, Mr. Trudeau’s famous deadlock, you have got it there, boy.

The Joint Chairman (Senator Hays): Thank you, Senator Roblin. Senator Williams?

Senator Williams: Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): I am exposing you to lots of Senators, Mr. Notley.

Mr. Notley: I welcome that, Senator Hays.

Senator Williams: Thank you very much. Two questions that I was going to ask have already been asked by two members of the Committee. You speak of alienation of your province and possible other Western provinces. If and when this should take place where will the Indian population of your province go if they disagree with separation? Again that is my own word, just as those in the province of Quebec were very uneasy as to where they would go if the referendum had gone the other way.

I will go a little beyond that and delve into other matters a bit. I have had a very interesting meeting with a Chief, his name is quite famous among Indians in Canada, Chief Smallboy, For some years he tells me that he has been trying to get 100 acres in the wilderness where he had moved off from his own reserve with his followers. This happens to be in a park in your province and he has been denied the right to locate and live, although he located there now, but your government in your province has denied him the right to give him the right to live on that location.

Now, there has also been a mention here of a patriate and matriate. I happen to belong to the matriate group and they have some advantages. I will go beyond that now. There is possibly three or four or maybe more categories of Indians in Canada. There-is the treaty group, treaty Indians, and recently, the last few years have created another group, the nonstatus Indians, and the group that the Government of Canada is dealing with at all times, the registered Indians under the Indians Act.

[Page 127]

Now, there is also another group known as the Metis and I cannot help but quote a sort of a rebel minded women from the province of Quebec. She said “Damn it, if it were not for the Indian women there would be no Metis.” She was right.

Now, I have listened since Monday to possibly six Indian organizations that have appeared here and there seem to be no link, no relationship in their briefs with each other, although some of them came from your province the others came from the Maritimes, but we will take my own province, British Columbia. On the cultural area where -I come from we have very limited lands because our way of life was the sea and to this day our way of life is still the sea. On the west coast of Vancouver Island, that group was here, they were the whale hunters. In their frail craft they went out and speared the whales.

Now, my question is how can entrenchment work to the benefit of these five different groups, never mind geographical, never mind seasonal problems, that differ so widely that entrenchment will not help, in my opinion, or will not enhance their needs to be dealt fairly with. I think entrenchment will lock them in for all time to come, that there will be no negotiations and again where does the treaty group stand on this matter of entrenchment. Will they look upon it as something that could destroy their treaties, and some of them are saying so privately, as persons.

Where does this entrenchment on the BNA Act or the constitution, if and when it should be brought up, lead?

Now, again using British Columbia and the coastal area, one reserve alone near the Alaska border on the coast has nearly over 300 population today on their reserve, and I was there only a matter of six or seven weeks ago, those who have left number over 600 and they have taken up homes and bought homes in municipalities and cities, taken advantage of the educational system of the province and many of them are not going to go back. I very seldom mention anything about myself. I left my own reserve in 1944 and none of my five children are going back; they told me so. They are successful in their own right. This is going to happen all over Canada, and what will entrenchment do? Is it going to be a battle, that is my question.

The Joint Chairman (Senator Hays): Thank you very much, Senator Williams. Would you care to reply, Mr. Notley.

Mr. Notley: Mr. Chairman, and Senator, with respect to the economic questions that you raised, obviously entrenchment only to the extent that improves the position with respect to lands would have some impact. I am going to refer the bulk of your question to Mr. Stevenson but I do want to comment on one or two aspects of it. He raised the question at the beginning of where would Indian and Metis people go if separatism was successful in Alberta, I do not think there is any question, I am sure of that, Mr. Steinhauer made it clear when he appeared before this Committee that the Indian Association of Alberta is very strongly opposed to separatism.

The other aspect that you raised is with respect to Metis people. One of our real concerns in Alberta has been the not only unilateral but I would say cavalier disregard of the human rights of Metis people. We have, as you are probably

[Page 128]

aware, Senator, a major court case with respect to moneys owing people who live on the Metis settlements in Alberta. Even though an Order in Council was passed 20 years ago, we are dragging the Metis settlement through the courts and I think it is a rather sad commentary but it is the sort of thing that regrettably has happened all too often over the history of Canada with respect to the way in which aboriginal people are treated by governments of all stripes, the tendency to act in a unilateral way, and I think that the point we attempt to make in our submission is that we would reduce the vulnerability of the rights of native people by entrenchment.

We are not going to solve all the problems, far from it, and I do not think that anyone is suggesting that it is a panacea, getting back to the honourable Senator’s point of view. I would never suggest that for a moment but I think that we increase the power of native people to be able to make the case, the legitimate case that I think we in fact owe them over the years.

The Joint Chairman (Senator Hays): Thank you. Mr. Stevenson.

Professor Stevenson: I think Senator Williams has drawn our attention to the very great complexity of this whole issue and has raised some really economic and sociological questions rather than legal ones, to which I do not think we in this delegation have all the answers, for example, the fact that people move off the reserves and into the urban areas and so forth, whether this is viewed as good or bad, it is happening, whether entrenchment might change the propensity to do so, these are questions that are very difficult to answer.

I think what would be entrenched is not a single document, but a number of different documents of different character, some being treaties relating to specific groups of people, like the Royal Proclamation of 1763, for instance, referring to a much larger and more heterogeneous group of people; the intention is not to spell out in detail in the constitution, every detail of what the positions of the native people is to be, but to provide them with something of a bargaining tool that they could use in dealing with the federal authorities.

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

Mr. Epp.

Mr. Epp: Thank you, Mr. Joint Chairman. I will try and be brief.

Mr. Notley, I take it from your comments today that, though you have reservations, you would like to see it proceed in another manner and you accept the unilateral action of the federal government on the constitution?

Mr. Notley: Mr. Epp, I would not put it in those words.

Mr. Epp: I am not asking you about the words, but the action.

Mr. Notley: The point we make is that there have to be some pretty fundamental changes.

[Page 129]

If you are asking whether or not I could accept and sell the package, that is another matter.

Mr. Epp: I am not asking that.

Mr. Notley: But that is an important part of the equation, and the answer is “No”.

Mr. Epp: That being the case, do you approve of an amendment to the constitution with the approval of Canadians, apart from the provincial governments, to be done in Great Britain?

Mr. Notley: Again, I would like to go back to the point I made before. It would have been infinitely have had a further conference. There can be no question about that.

The issue, as I see it what we do now that the process is under way.

Mr. Epp: Stop it.

Mr. Notley: Well. I guess that is one option and I would argue that the process is under way and it seems to me that the preference which I am my colleagues would state is that we would like to see amendments to the package which would make it more equitable and fair.

The other point I must make equally strongly, Mr. Epp. is that because I believe there must be a Charter of Rights and Freedoms, I am frankly a little skeptical of whether we would ever get a Charter of Human Rights and Freedoms if we just had patriation and did not get that.

It is not an easy decision to make. I respect very much the position of Premier Blakeney from Saskatchewan who has a different view on the entrenchment of a Charter of Rights and Freedoms than I do.

But if one were to take Premier Blakeney’s view, then I think it is a reasonable argument to say, “Stop, we will not go ahead”. But if you accept the argument, as we do that there must be a Charter of Human Rights and Freedoms, then the corollary of that in my submission is that we must make the package more acceptable.

Mr. Epp: Mr. Notley, I am not disagreeing with a Charter. but speaking in the Alberta legislature as you did on November 24 last year, I noticed you were worried about ghosts, namely the ghost of J. S. Woodsworth. You were talking about the Senate at that time and you said that for a second Chamber the ghost of J. S. Woodsworth would come back to haunt us.

Well, I want to haunt you with the ghost of J. S. Woodsworth.

Speaking in the House of Commons on February 18, 1925. on a motion with respect to the constitution, and this is talking about process-and remember this was 1925; and J. S. Woodsworth said:

Who then is best fitted to interpret. in the light of modern conditions, these laws of fifty or sixty years ago? Not, I submit, the men who live across the Atlantic, but the men who are living here in Canada and dealing with the everyday affairs of our Canadian people.

[Page 130]

So it is not a question of a Charter of Rights pro or con.

The question is: do Canadians have the responsibility to entrench the Charter and not ask through this process. someone else, as Mr. Woodsworth said those 56 years ago that we should not be asking the British to do it.

Mr. Notley: Mr. Epp, you have brought the ghost of J. S. Woodsworth back to me, as we frequently bring the ghost of Mr. John Diefenbaker back to haunt my colleagues in the Alberta legislature.

With great respect, I think the issue is just a little more complex than that.

If one is going to reach this goal of a Charter of Rights and Freedoms, then we have to be very honest with the people of Canada. Every survey I have seen, including surveys in my own province, indicate that entrenchment of human rights is accepted by the vast majority of Canadians.

Mr. Epp: But they are opposed by the same number on the process.

Mr. Notley: Indeed. We have to reconcile the conflicting views. That is what we do as politicians all our lives. There are people who have strong views on one issue such as entrenching human rights. On the other hand, there are those who feel the process is wrong. You have two totally conflicting points of view which you have to reconcile. I suppose it is a matter of judgment as to where you draw the line.

All I can say to you very bluntly, is that it would be nice if we could go back to September, but we are four months down the road.

Mr. Epp: So you accept that it will be done in Britain, and you do not obviously accept J. S. Woodsworth.

But I would like to make another point.

The Joint Chairman (Senator Hays): Make that your last question. Mr. Epp.

Mr. Epp: There are two areas I would like to deal with and I obviously do not have time. One is the resolution in the Alberta legislature. Do I take it that, because you voted against it, that you are not necessarily against all the elements?

Mr. Notley: Oh no.

Mr. Epp: You are opposed to amendments which would diminish provincial rights, proprietary rights and you are opposed to unilateral action, because you voted against this motion; you then had an amendment whereby you wanted the aboriginal rights—I think Senator Lucier and Senator Williams have dealt with that adequately, so I cannot really get into your thinking in terms of that resolution. I have read your speech. I have the resolution. I take it from the nodding of your head that you were not opposed to all those elements. But what I want to get to is really the amending formula, because we are dealing with a bit of history and mythology here, because when the Alberta legislature debated the so-called Alberta formula, because of certain perceptions in Ottawa re Alberta, it was renamed the Vancouver concensus, that being

[Page 131]

the case this party has said the Vancouver concensus at least maintained the principle, a principle of equality of provinces; that any formula which removes that principle to further alienation.

What has been happening with the Vancouver concensus, even from the time you had the debate in the Alberta legislature to the time of the Vancouver concensus, is that there was a narrowing of the opting in and opting out provisions.

So in terms of historical facts, one has to look at that.

Even further in the process, you get to the Toronto formula. That was a further evolution of the Alberta or Vancouver concensus, namely that the 50 per cent was considered too low. I personally agree with that view. It is too low. Our party has said that.

But the point I am trying to make is this, that while we are not married to Vancouver, the principles which were in the Alberta formula, then the Vancouver concensus further evolved into the Toronto formula—there was never enough time, unfortunately, to come to the agreement which was then known as the Toronto formula—had those elements, Alberta, Vancouver and Toronto; but the principle it maintained was the equality of the provinces and that partnership.

While I cannot obviously get into the amending formula now, and that is by reason of time, I am asking you if your objection to either Victoria or Victoria as modified in the proposed resolution, the fact that it does not accept the principle of the equality of the provinces, would you accept an amending formula which maintains that principle as something along the lines of Toronto, that is, let us say seven of ten provinces and a higher percentage of Alberta, namely 50 per cent, something in the order of 75 to 80 per cent?

Mr. Notley: Mr. Epp, our suggestion specifically is that we think the Toronto concensus, as we understand it—seven out of ten provinces with 85 per cent of the population is the best possible way of balancing some pretty basic questions.

One legitimate issue is how to safeguard the rights of the Province of Quebec in this process without naming Quebec?

Mr. Epp: Without giving them a veto and the perception that creates.

Mr. Notley: That is right.

Mr. Epp: Or Ontario.

Mr. Notley: Yes, Ontario as well; and we say an acceptable percentage of the population; we are looking at 15 per cent. We suggest 15 per cent rather than 20 per cent as Saskatchewan uses, because we think that gives Quebec a greater safeguard. Over a period of 20 or 30 years it is conceivable that the Quebec population could drop below 20 per cent. It is not conceivable that it could drop below 15 per cent.

So although it is an arbitrary figure, we think it gives the province of Quebec the necessary safeguard.

On the other hand, I would be less than honest with you if I did not suggest that, because of the growing economic strength of the west that both British Columbia and Alberta over the

[Page 132]

next 30 or 40 years could conceivably reach the 15 per cent level.

Mr. Epp: Well, I look at that as a long shot.

The Joint Chairman (Senator Hays): Well, I am afraid that is your last question, Mr. Epp.

It is now 6:30 p.m. and we have to accommodate our next witness who will be here at 7:30 p.m., and we have to make it possible for those people who have missed dinner, who have missed lunch, having started at 9:30 am.

I go to Mr. Mackasey for a very short time.

Mr. Mackasey: I want to say that there will be amendments, Mr. Notley. But I would like to say first of all that I am one of your fans. I have watched your progress in that province where you try to speak out for federalism in the most trying circumstances.

There will be amendments, I am sure of that. The package will be improved, thanks to your input. I do not know where Mr. Epp stands. I do not know if he wants us to know, but we know where we stand.

Unless there are unforeseen events, we will patriate the constitution and it will contain an amending formula and a Bill of Rights, but in what form, I do not know.

By the way, I appreciate your very forthright rejection of the Vancouver formula, because it would not only set up two nations of this country, but ten. It would certainly not have equality across the country. I cannot understand the appeal of Vancouver other than it is the best of all worlds, if you do not want one of any kind.

I like your Toronto suggestion, and I would feel a bit more comfortable with it if educational rights, language rights, resources, were previously entrenched or were entrenched at the same time as we adopted the Toronto formula.

I share your view that if we are to depend on the goodwill of the premiers we will never have the human rights or Bill of Rights.

What I would like to ask your constitutional expert is this. Looking objectively at the resolution, and anticipating amendments to Section 1, do you see any tremendous shift of power from the central government to the provinces or vice-versa in what is being proposed here?

Professor Stevenson: The proposal as it now stands, no.

Mr. Mackasey: Well, I wonder what all the discussion was about

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

Mr. Notley, Mrs. McCreary, Mr. Swan and Mr. Stevenson, we are delighted to have you here this afternoon. You have raised some very important questions, energy problems, transportation, Charter of Rights—we are all the wiser for your being here today and we may even want to get in touch with you before we go through all of the clause-by-clause study and that sort of thing before this Committee rises.

[Page 133]

In any event, we are delighted to have you here, and I wish to thank you on behalf of Mr. Joyal and all members of the Committee for being here this afternoon.

Mr. Notley: Thank you very much.

The Joint Chairman (Senator Hays): The meeting will reconvene at 7:30 p.m. sharp. At that time, we will have the Business Council on national issues, and at 8:30 p.m. we will have Mr. Sykes, the Leader of the Social Credit Party of Alberta.

Until then, this meeting is adjourned.

EVENING SESSION

The Joint Chairman (Mr. Joyal): Order, please.

It is my pleasure on behalf of the honourable Senator Hays and on behalf of the honourable members of this Committee to welcome tonight the Business Council on National Issues. and particularly the Chairman, Mr. Peter Gordon.

It is our usual procedure to invite the spokesman or the Chairman of the group to introduce the other members of the delegation, to invite him to make the opening statement and then be agreeable to receive questions by the honourable members of this Committee.

So, Mr. Peter Gordon, I would like to invite you to make the usual opening remarks.

Mr. Peter Gordon (Chairman, Business Council on National Issues): Thank you very much, Mr. Chairman.

As members of the Committee may or may not know, I am the Chairman and Chief Executive Officer of Stelco Incorporated and as well a member of the policy committee of the Business Council on National Issues.

I have with me this evening Mr. Gerald Heffernan, who is president of Co-Steel International of Whitby and a fellow member of the BCNI, and we had hoped to have with us Mr. James Fleck, Chairman of Fleck Industries in Toronto, and who was the Chairman of the steering committee on constitutional reform. Unfortunately he is in an airplane somewhere between Boston and Ottawa.

Ladies and gentlemen, we are grateful for this opportunity to share with you today some of our concerns as businessmen regarding the resolution before you.

Let me first explain that the Business Council on National Issues is an association of chief executive officers of approximately 140 major corporations across Canada representing well over $125 billion in annual sales. The Business Council was established about four years ago to enable its members to make a constructive contribution to public policy.

Since the last federal election and the referendum in Quebec the pressures on governments to reform the constitution have

[Page 134]

been increasing very rapidly. We are convinced that substantial revision to the constitution is indeed required.

As private citizens the individual members of the Business Council hold a wide range of views about the urgency of the task, and about how sweeping the revisions need to be. But we are united in the view that if there are to be revisions certain provisions should appear in a truly Canadian constitution.

With this in mind, we wrote to First Ministers before their September 8 conference expressing our concerns and encouraging them to work together to end this constitutional uncertainty.

Before proceeding any further, we should like to table copies of those documents before this Committee now.

In addition we should like to table a recently published booklet which the Business Council commissioned, entitled A Citizen’s Guide to the Constitutional Question. Our written submission to this Committee included copies of the English text for each member of the Committee. A French version will be available very shortly.

Our purpose in commissioning this booklet was to set the constitutional debate of 1980 in context, to examine the issues, to clarify the alternatives, and thus to help citizens decide where they stand on the issues being debated.

Let me now return to the concerns of the business community in regard to the constitutional debate and to our comments relating to the resolution before Parliament.

Since September the situation has deteriorated further. Not only has the gap widened between the federal government and the provinces as to who should control what, but also the governments, preoccupied with each other, seem to have ignored the negative impact this is having on Canada in terms of lost business opportunities and jobs.

Nor has much, if any, attention been paid in this debate to creating a constitution which will allow the Canadian private sector to develop its potential to compete effectively both at home and abroad. And yet the well being of the Canadian economy surely depends on having a healthy and successful private sector.

If the principle of parliamentary supremacy is going to be abridged by the introduction of a Charter of Rights and Freedoms—and many of us feel that it should be—then such a charter should deal adequately with economic rights.

We advocate protection of three kinds of economic rights:

First, like the Canadian Bar Association, we believe that most Canadians would want their property rights protected— both the right to possess and enjoy ownership rights over real

[Page 135]

and other property—and the right not to be deprived of such rights of ownership expect by due process of law and not without just compensation.

When we speak of “due process of law”, we have in mind both protection against enactment of prejudicial administrative procedures, as well as maintenance of open and independent processes of litigation with respect to particular laws. Bill C-60, 1978, touched, though inadequately, on these rights.

Second, we believe that to protect the kind of Canada most Canadians believe in, certain rights should extend, not just to individuals or citizens, but to all persons, including corporate persons. The rights just mentioned—property rights and rights to due process and to just compensation-are examples that illustrate this point. For instance, due process of law should cover the development of regulations which affect the conduct of business in Canada.

Third, and this is reflected in rudimentary fashion in the government’s present proposal for a charter, we believe that the good of the Canadian economy requires broad protection of mobility rights—not just the mobility of citizens in search of a livelihood but the right of persons to move goods, services, capital, entrepreneurship, freely within the territorial boundaries of Canada.

We believe that economic efficiency requires that we distinguish between maximizing the size of the nation’s economic pie and distributing that pie equitable among Canadians. We further believe that steps towards more equitable distribution should be carefully calculated so as to minimize the necessary trade-offs in terms of failing to achieve the maximum possible national output.

It cannot be stressed enough that Canada’s domestic market is very small by comparison with that of the worlds major trading blocs. In fact, with a population of less than 25 million people, it is one of the few advanced economies without free trade access to markets in excess of I00 million people.

It needs to be free as possible of internal barriers in order to permit Canadian firms the broadest possible base from which to compete internationally.

If large economies like the United States and the European economic community need free internal movement of economic factors in order to be competitive, how much more must a small economy like Canada need that exact freedom? And yet provinces have increasingly during the past several years taken measures designed to interfere with the economic free flow of goods, services, labour and capital in the hope of boosting the local economy and generating additional employment.

[Page 136]

This “trend seems likely to continue. But this progressive fragmentation makes it more difficult for Canadian firms to develop in the most efficient manner, and as a result jeopardizes the very basis of our position as a high-income industrial nation.

Of course regional development can be a legitimate political objective. All we would argue is that where governments wish to interfere with the natural processes of regional economic change, they be required to reach specific agreements amongst themselves and treat such agreements as exceptions to the general constitutional rule.

Even though such exceptions will occur, it still is our contention as representatives of the business community that the preservation of relatively free interprovincial trade within the Canadian federation is essential to the economic welfare of all Canadians.

However, the common market can be protected in many ways, either by the constitution, by the courts or through co-ordination of both levels of government, as long as the economic system is acknowledged and protected.

We believe that it would be a short sighted policy indeed to have a commitment to equalization—to sharing Canada’s wealth—without a parallel commitment to generate wealth. As a result. we advocate that “generating the wealth” be put side by side with “sharing the wealth” in stating principles for an amended constitution.

The Business Council fully supports the federal nature of Canada. However much any of us might wish for a simple, efficient governmental system, we recognize that Canada is too widespread, too varied, and much too complex for that simple solution.

A federal system, in the modern era, necessarily requires intergovernmental exchange. No constitution, however felicitously drafted, will succeed in keeping one government from colliding with another.

Canada must be a federation. Equally, that federation must rely on intergovernmental co-operation. Our governments must be ready to make, and keep, bargains with each other.

In our letter to the First Ministers before their September conference we were critical of the progressive deterioration in federal provincial relations over the past decade.

The present constitution cannot work to the benefit of ordinary Canadians without reasonable federal-provincial relations. No future constitution will be able to do so either. As long as the present kind of intergovernmental strife continues,

[Page 137]

this country will be in a state of constitutional crisis. No Supreme Court can possibly solve that for us.

Naturally, then, the Business Council does not favour the federal government’s attempt to achieve substantial constitutional change by unilateral action. This initiative has spread consternation throughout the country and abroad, further eroding Canada’s reputation for stability which has been suffering as a result of prolonged federal-provincial discord.

Certainly the constitution should be patriated; but the federal government should not be seeking to impose an amending formula unilaterally, and certainly not by attempting to persuade the British Parliament to endorse an amending procedure that cannot be agreed to here in Canada.

If there are to be amendments to the letter or the customary tradition, it should only be with substantial provincial agreement. There is time for a First Minister’s conference on an amending formula if need be.

In addition, we reject the idea of using a referendum to break the intergovernmental deadlock. In no other referendum in Canada has the result been so binding on the government of the day. The referendum is an unfamiliar mechanism in Canada, even in an advisory role. So a constitutionally binding referendum on an amending formula would be in our opinion too radical a departure. It is going too far for the federal government to attempt not only to take that step unilaterally, but also to control all aspects of timing, wording and presumably, interpretation.

As we mentioned in our September statement, the private sector, which is responsible for generating much of Canada’s wealth and prosperity, deeply believes that governments should resolve the constitutional question together and thereby take a significant step towards stabilizing the economic environment.

As business leaders, and as Canadian we are hoping this Committee will be able to make recommendations that will lead to substantial federal-provincial agreement on the next step towards a constitution made in Canada.

We hope that we have and will make a helpful contribution today. We wish the Committee well in its deliberations.

Thank you.

Now, before I stop I would like to introduce Mr. James Fleck who has come in, the President of Fleet Industries in Toronto and the Chairman of our steering Committee on constitutional reform.

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

[Page 138]

I would like to invite the honourable Senator Duff Roblin to open the discussion with our guest witnesses tonight.

Senator Roblin.

Senator Roblin: Thank you, Mr. Chairman.

I must say that I am delighted to have the first opportunity to welcome this delegation because you have brought to our attention certain aspects of the economic structure of our confederation which I fear have been all too sadly neglected in our deliberations so far, and I welcome the constructive suggestions you have made.

I am particularly pleased to see you here, Mr. Gordon, because you represent one of the outstanding Canadian success stories that in a world that is so concerned with the over production of steel, in Europe and the United States, that we have a steel industry in this country that is second to none in its competitive capacity and in its innovative skills, and I say that if Canadian business can live up to the standard which you personally are setting we will have much to be greatful for.

I want to start off, I think, by dealing with a subject which perhaps you referred to but I would like to highlight to some extent, and that is the question of protection of society from the bureaucracy.

Now, I do not mean that in any uncomplimentary sense to the many dedicated bureaucrates we have in our country, but the fact is that these days in so much of our legislation Parliament is not making the law, Parliament is setting down certain general principles and then the bureaucracy, through Orders in Council and measures of that kind, really fill in the details of the law and I am wondering whether you have any concern about this approach to legislation because it does in fact at the present time remove it from the purview of Parliament and places it in other hands altogether, and I am wondering whether there is any way in which we can work together both as political people and as a bureaucracy and as a private sector to bring a more rational approach to this whole question of law making by delegated legislation to the bureaucracy.

I have noticed that one of the standing committees of the Parliament has suggested that we should make sure that all this delegated legislation is in fact reviewed by a branch of Parliament, in this case it was suggested the Senate, at which time those who are affected would have a chance to make the representations that they do in the usual way towards bills and that without the consent of this secondary view of delegated legislative law making, that the measures would not be effective.

My real question to you is: do you find a problem in the whole area of delegated legislation, and if so what do you think of this suggestion or have you other proposals that would bring a greater degree of parliamentary democratic decision-making to bear on these important issues?

Mr. Gordon: First, Senator Roblin, may I express my consideration for your very kind comments about me and may I say to you that I would like to share them with my confrere on the right, he also’ runs a very efficient steel company in

[Page 139]

Canada and has invaded not only the United States but as well Great Britain with equal success.

In answer to your question, I think we have already as a group addressed ourselves to parliamentary reform and have provided both the Liberal and the Conservative and NDP parties with our feelings about parliamentary reform.

I personally have a great fear about the delegation of the writing of legislation without proper input from the private sector specifically, and from the Senate, but I feel that, and I would like my fellow associates to answer this question as well, but I feel that an opportunity for input to legislation before it becomes law is obviously very important to the future of this country.

We are obviously trying to legislate without sufficient background and I think every opportunity should be given to those that can provide that background before the legislation comes in.

Do you want to add to that?

Mr. Jim Fleck (Chairman, Committee on Constitutional Reform, Business Council on National Issues): No, I agree and have nothing to add.

Senator Roblin: I am hopeful that in this Committee we may be able to devise some amendment to the material before us to cover this whole area of delegated legislation because right now it has escaped the net, it has fallen through and it is at large and it is loose and I agree with you it is not good.

I want to ask some questions about the subject of the common market within the Canadian Confederation because I think you also touch a very important point there. The bill itself, if it goes unchanged, deals with only one aspect of the common market, I suggest, and that is the movement of people. And even that has run up against some problems as I may mention in a moment, but while our original Confederation compact provided for no tariffs between the provinces of this country, they were not aware of the fact that we were going to be smart enough to develop nontariff barriers to trade. It seems to me that if we are considering the common market aspects we will have to go beyond this question of the movement of persons which we have in this material and ask ourselves what we are going to do about the nontariff barriers of various kinds which jurisdictions can create.

Now in the GATT negotiations, they faced the same problem and they have devised a series of rules by which nontariff barriers will be assessed to make sure that they are minimized. Do you think there is any possibility of our taking a similar approach or have you a better idea as to how we might codify this common market of ours so that we can deal not only with the question of interprovincial tariffs which are forbidden, though some of them creep in I think all the same, how we can deal with these other nontariff barriers to trade between the provinces?

Mr. Gordon: We believe that these nontariff barriers and certainly they are the problem throughout Canada, I can speak

[Page 140]

with some experience, we have difficulty selling steel across this country because of some of the barriers that have been set up by the various provinces, in order to encourage development of the steel industry in these particular have-not provinces, and I do not mean to suggest by that that encouragement of the development of areas under economic distress should not be continued. But I think that this should be part of the constitution and I think that obviously should be governed by the courts.

Mr. Fleck: We did expand on this in our statement to the First Ministers in September. We also have some additional work being done at this time that we think might be helpful at a later stage to steps that might be taken.

Senator Roblin: I would be grateful to get any ideas on that because there is a reason for these nontariff barriers and that is that the country is not an economic unit, it is a highly regionalized country and not all areas have the same growth prospects of others, not all areas feel that their own natural assets are being properly developed, not all areas feel that policies which have been developed in central Canada in the main, operate equitably in their areas, so you are going to have to face the fact that provincial governments which have a role to play in economic development are going to be concerned about regional development, And the problem is how to identify those justifiable measures to promote regional development as opposed to those which really inhibit the concept of the common market.

I have to confess that I am a long way from a feasible solution to this problem but I would like to state it because while it is all very well to talk about the common market, we have to recognize that there are other factors which are very important to regions and which do not go away so I would suggest we probably need some sort of a body, some sort of adjudicating mechanism by which we can validate those which are appropriate and disallow those which are not.

And that brings me to another point which I think you have made, a very constructive point which you have made here, and I wonder if you could expand on it. In the message you sent to us on November 25, you attached a statement prepared by your policy committee and one of the proposals was, one of the problems sketched was, how to coordinate the economic policies that are operated by the two levels of government, both of which are legitimate in their field and you make a statement here that there should be adequate machinery for intergovernmental co-operation in the economic field and that machinery should be entrenched in the new constitution. I happen to believe that that is a very important consideration.

I am wondering if you could tell us some more about it. In Australia there is one aspect that is covered. They have a council on government borrowing, on the distribution of borrowing authority between the states and the federal government of Australia, but have you got any, can you give us any idea as to what kind of machinery you have in mind when you talk about this better intergovernmental, economic cooperation?

Mr. Fleck: Well, we are in the process of developing material in that area. One type of structure that has been

[Page 141]

suggested has been a type that would involve provincial representation, say one from each province. It would also involve the federal government and then it would require some number of votes out of that group with the federal government having more than a single vote, but some number of those votes out of the group to get approval to abridge the common market. But the notion is that what one is striving toward is a common market, because we need that, given the very small size of our market, relative to those of other countries. But recognizing that there will be times when it is necessary to abridge that, and it is just to make sure that one were aware of the cost of doing that when we do it. So, that while there are benefits to the regional development, as you have described, that we recognize that one pays the price at the same time, when doing that, and therefore it is to develop some mechanism that would involve both the provinces and the federal government that would help make those judgements.

Senator Roblin: I would like to underline this point because of its importance, We have certain mechanisms in place now. For example, there is an annual meeting of the ministers of finance. I used to attend those at one time and unless they have changed dramatically since my day, it was a pleasant visit, but that was all. We came down to listen to a few ideas as to where the economy might be going, but it really did not result in anything concrete at all.

We also have added to that since those days in having inter—ministerial meetings of umpteen different kinds, some of which have to do with economic matters, but we really have not developed any machinery by which we get things decided or agreed upon. They are really just situations where people sit around and exchange the latest news on the subject and go home again, without any undertaking in most cases to do anything about it. So if we could get any good ideas from you as to how we could construct a machine whereby there could be this economic cooperation, it would be enormously valuable, but right now, we have government policies which contradict each other, and which are going in opposite directions on occasion. Obviously that is a problem that is very vexacious in a federation like ours.

Now, if I could move on to another question before the Chairman tells me my time has run out, I would like to deal with this question of process.

We have before us two problems I think. One has to do with the substance of the material in this document that is before us and we are devoting a lot of attention to that, but before we come to that I think that we have to make up our minds about this question of process. In other words, are we going about it in a way that is going to develop consensus on the one hand and constitutional legitimacy on the other. And I notice that you made a pretty firm statement about that. That you oppose unilateral action, by the federal government, and in addition to that, you gave us some good reasons as to why a referendum is a very doubtful means of settling intergovernmental constitutional disputes.

[Page 142]

Now, coming to the question of unilateral action at the present time, my perception is that the people of Canada want the constitution repatriated. There are a number of us who do not think it is the be-all and end-all of existence but it would be a nice thing at least if we had it repatriated and back in Canada. And I think a number of us think, well, if we are to take that step, it would probably be responsible to have an amending formula that is a little more flexible than the unanimity principle that we have now. But, beyond that, the constitution should be made in Canada by Canadians, under the new amending formula.

Do you think that it is legitimate in the constitutional sense of that word and in the legal sense, do you think it is legitimate to proceed with the patriation idea plus an amending formula previously agreed to by the provinces and the federal government? Would you go that far in approving the process that we are embarked on now?

Mr. Gordon: I think probably the answer is substantially agreed to. To get total agreement, it will be very difficult. It seems to me we are at a point now where we have lost what little agreement we had. And it seems to me that we have to go back to the point that we had reached a substantial amount of agreement and move from that particular point.

Senator Roblin: I was also interested to get your recommendation that there should be a meeting of the first ministers called again.

Mr. Gordon: I said there was time to have a meeting.

Senator Roblin: Yes, time. Well, I would like to think that maybe you thought it was even a good idea, because it seems to me that if we were to have such a meeting with probably one item on the agenda, namely the amending formula, we would probably get a good consensus. There is nothing like the prospect of being hanged in the morning to concentrate the mind, as someone observed in the past, and it seems to me that we should strike that iron while it is relatively hot at the present time. I take that perhaps you would agree that there is not only time to do it, but that maybe it ought to be done. Now I do not want to put words in your mouth. You do not need to answer . . .

Mr. Gordon: Both of those things apply, Senator. I would agree wholeheartedly.

The Joint Chairman (Mr. Joyal): Thank you very much, Senator Roblin. I would like to stop you before you hang anybody. Mr. Irwin followed by the Honourable Perrin Beatty.

Mr. Irwin: Mr. Gordon, it is a pleasure having you here, and your group. A very good document. I have read it once before and went through it again just quickly tonight and I think that every Canadian should read this and they would know a heck of a lot more about the process.

I am especially pleased because you come from a steel town and so do I, Sault Ste. Marie, and where you say go back and

[Page 143]

process, up in Sault Ste. Marie, they say will you get the damn thing over with and get down to working out the economy. So it is a difference in approach. Maybe because we come from a northern climate and we do not have too many words to waste.

Anyway, there are ten as I see, divisions to the proposed constitution and these are my own. They are very arbitrary and if you have no comment on them, or have not really put it through your committee or your group, that will be fine. But I would like to question you on them, because we are getting down to the last few days of witnesses.

You indicated your views on the patriation and the amending formula. I would like to ask you about the non discrimination clause in Section 15 which provides nondiscrimination because of race, national or ethnic origin, colour, religion, age or sex. Do you have any comment on this particular section?

Mr. Gordon: I think that we have tried to address ourselves to those problems that are mainly economic because we feel we have some expertise in that particular area and as a result would rather deal with them. I am not trying to avoid your question because it is obviously a very good one, but we have addressed ourselves to those things that we feel we have some knowledge of. I would agree in general principle that certainly these should be provided for in the constitution but that has not been part of our submission. I do not consider myself a particular expert in that area.

Mr. Irwin: No, but when I was mayor of Sault Ste. Marie and I at one time approached the steel company and the unions, and asked them certain questions, they were pleased to answer because for too long people would preclude them and say, you are only interested in wages or profit, and we live in this country and we want to be involved and we have an expertise as Canadians, not necessarily experts, and I take it that you are not prepared to make comment on the third group, fundamental freedoms or democratic rights and you are more concerned about the business rights.

Well, I will deal with business rights, if you want specifically, if you have no comment on the others.

Mr. Gordon: Well, speaking personally, and I think each one of us personally has expressed their views in this area, I obviously, by our hiring policies, by the sorts of things that we do in our company, indicate the policies that we have with regard to race, colour, creed or sex and I certainly think that should be part of our constitution. ,

Mr. Irwin: There is nothing in there that would differ from what you are normally doing at that particular . . .

Mr. Gordon: No, no.

Mr. Irwin: Again in Sault Ste. Marie, again you have to relate your own experience, they tell me that the women are the better workers that they hire in the mills. They are more reliable, they are on time. Now there are certain things they cannot do, but there are less days off with the women working in the steel mills. This is their experience in the last few years. Do you find that?

[Page 144]

Mr. Gordon: We have a number of women workers in various areas of our plant and we are very pleased with the sort of work we are getting from them. They are a great addition to our work force.

Mr. Irwin: I will jump to the fifth category, mobility rights, which is Section 6. I take it you have an opportunity of persuing that particular section or did you want me to read it, mobility rights of Canadians. Are you satisfied with the wording of that particular section? The whole section on mobility rights is one section of the constitution. Are you satisfied with the wording?

Mr. Gordon: In our submission we made reference to persons being corporate as well as individual. I think that that is our comment specifically in that particular area.

Mr. Irwin: Are you distinguishing between citizen and noncitizen, any person in Canada . . .

Mr. Gordon: That is right.

Mr. Irwin: Do you wish to comment at all on the language section which is 16 to 22 which provides really no change at all from what the present law of Canada is.

Mr. Gordon: That is correct.

Mr. Irwin: Are you satisfied with this? .

Mr. Gordon: You recognize you are talking about the person, we are talking about corporate corporations as well. I think I want to make that point.

Mr. Irwin: Now, on minority language rights through your brief here and throughout your book you—I am not sure if you are stating your position or you are endorsing a certain minority language rights. Could you clarify that? Are you endorsing minority language rights as set out in Section 23 or just stating them as something we should look at, if we are interested?

Mr. Gordon: You are asking a question that is difficult to answer for the Business Council on National Issues. You can ask us individually how we feel about this obviously, but we are here presenting a brief from the Business Council and quite frankly we have not surveyed our membership in that particular area.

Mr. Irwin: That is fair, sure. But I feel that as we are getting down to the end that I would like to cover these. You have no comment on natives and finally equalization which is Section 31, my tenth category, which is basically a concept of sharing, the richer provinces with the poorer provinces. Do you have any comment on our wording in Section 31 as far as equalization between provinces? ‘

Mr. Gordon: None at all.

Mr. Irwin: Thank you. I have no further questions.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Irwin. Honourable Perrin Beatty, followed by the Honourable Bryce Mackasey.

[Page 145]

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

Mr. Chairman, I might observe at the outset that I think that the hearings over the course of the last 24 hours have been among the most constructive that we have had before this Committee, because we have had a succession of witnesses during that time who made a point which needs to be made and has not been made often during this proceeding, and that is that national unity in this country is more than simply the constitution. It is more than simply laws. It has to do with the way in which we view one another as Canadians in our relationship with one another, whether or not we deal with each other in a decent way.

And I think that one of the points which I would infer from the section of the brief which deals with the process of change is that it is essential that the Committee recognize and the government recognize that constitutional changes as such are not a panacea. But there are many problems that we have in Canada which will have to be resolved by policy changes or by regular legislation or by a change in attitude on the part of the various players and for the federal government to fall into the trap of believing that constitutional change in itself, as soon as we bring the constitution home and, as soon as we make changes to it here, to modernize it or to put in a charter of rights or to make any other changes we would like to see, that this will not simply sweep away the problems that we have in Canada, but what is essential is that we build a feeling of trust and goodwill in this country.

And I want to thank the Business Council on National Issues for underlying that point for the Committee because we tend to get caught up with the fact that the resolution is before us today. We tend to get caught up with the legalities that we are doing and lose sight, I think often, of the much broader perspective of what this country really is and what the job is that confronts us as we try to deal with the question of national unity.

Gentlemen, in your brief, you made an observation which I thought was interesting and that is where you said that this initiative has spread consternation throughout the country and abroad further eroding Canada’s reputation for stability which has been suffering as a result of prolonged federal-provincial discord.

Now, one of the bases in which unilateral action is argued for by many of its advocates, is that it is time to put an end to uncertainty. That constitutional uncertainty has led to an instability which has been damaging to Canada in the past, damaging both socially and economically, and it is argued that it is essential now for the federal government to take unilateral action to impose its will upon the provinces in order to provide stability for Canadians. But I gather it is your perception that in fact what the government has done is not put an end to instability but rather to increase it. Is that correct?

Mr. Gordon: I think I will finish my remarks by saying that there is a feeling abroad that there has been an animosity created between the provincial and federal government that has just increased over the past eight or nine months and until

[Page 146]

we get that particular problem solved, as you suggest. the ability to compromise on so many things that lie ahead of us once the constitution is repatriated is very sufficiently diminished, very significantly diminished. I think, and I do a lot of travelling in the United States and there is no question but what the feeling in the U.S. is that we as a country are not to be depended upon to the extent that we were some years ago and that is a serious problem for a country this size. To have our greatest trading partner, our greatest friend, looking at us with the degree of concern that borders on doubt about our ability to handle ourselves, and for that reason I agree with your comment and I suggest to you that we are at that point in our history.

Mr. Beatty: So your argument would be that this initiative in fact has heightened the sense of uncertainty.

Mr. Gordon: Yes it has. Very much so.

Mr. Beatty: Now you people being some of the most distinguished business leaders in Canada today are particularly well placed to give the Committee some guidance as to what are the effects upon Canada’s economy of this instability. Has it in fact—have the governments initiatives—has the instability to which you refer led to a loss of investment in Canada, led to a loss of jobs, has it led to a decision by your companies for example to hold back until you see what the future of Canada is going to be?

Mr. Gordon: I do not think that there is any question about it at all. I can speak from a very significant amount of experience and tell you that Canada’s present position has probably cost not only a substantial number of jobs in Western Canada and in Eastern Canada, but in Central Canada as well because of delays in investment decisions relative to pipelines, development of new oil resources, alternate fuel resources. Specifically there is l7 million tons of steel that results from decisions to go ahead in Cold Lake and the oil sands and the pipelines that are attendant upon those two developments that is going to be sitting there until this particular problem is solved. I have heard the remark made on a number of occasions in the past six months in the United States, that until the problem is cleared up there will be no more investment of American money in Canada. My feeling and our feeling is that this country has grown because we have had capital coming into Canada. There is no question that obviously is going to be decreased over the next period of time and I think we have got to get away from the hiatus that has been created by the problem we are facing.

Mr. Beatty: This Committee is charged with the responsibility of recommending whether the joint address should go ahead or whether it should be modified in some way or scrapped entirely. Is it your feeling that if the Committee were to recommend to the government that the address not go ahead at this time as proposed, but instead we propose that we ask Britain for simple patriation with an amending formula, be it the Vancouver concensus which would be my preference, or perhaps one of the other formulas discussed in your paper, were to bring the constitution to Canada, with the understand-

[Page 147]

ing that we would then reopen discussions within Canada in the spirit of goodwill and compromise, perhaps strike a constitutional convention which would bring Canadians from across the country to sit down and try to resolve without putting our prejudices on the table, but try to resolve as individuals those issues which the First Ministers have been incapable of resolving—would this in your judgment have a favourable impact upon investment decisions by the business community?

Mr. Gordon: I think we go back to your mind is concentrated better when you are going to be hung tomorrow morning. It seems to me that you have got to come back to the point that with a deadline, repatriation, there is more incentive to reach agreement. If we repatriate the constitution with no amending formula, I think we can leave ourselves open to a good deal of discussion over a long period of time.

Mr. Beatty: But what if we were to bring it home with, for example, the Vancouver Concensus, but then, say that the Canadian problems be settled in Canada, not in Westminster, they will then strike a constitutional convention when it comes to dealing with changes which should be made once we have repatriated the constitution. But those should be decided by Canadians here and we should change the players, not simply have it as an agreement to be sawed off among First Ministers or imposed by the Prime Minister acting unilaterally, but rather strike a constitutional convention which would have Canadians from various walks of life, from all parts of the country, coming and trying to bring a fresh perspective to bear on these issues.

Mr. Gordon: In the broadest sense, we agree with the concept. We have not put forward any particular agreement, whether it be Vancouver or Victoria and we do feel that the amending formula should be canadianized, not done in Westminster, obviously under some pressure.

Mr. Beatty: And is it your feeling this sort of approach would be preferable from the point of view of the business community?

Mr. Gordon: Yes.

Mr. Beatty: And business decisions made in terns of investment and expansion?

Mr. Gordon: Yes.

Mr. Beatty: Thank you, Mr. Chairman.

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

I would like to invite now the honourable Bryce Mackasey to join us in the discussion. Mr. Mackasey.

Mr. Mackasey: Merci, monsieur le president. I apologize for being late. I know you did not miss me, but I would have liked to have heard what you said and I will read it tomorrow. I want to say that I am particularly pleased, of course, at your presence here. We have met before. As the Member from Lincoln, I am very much aware of STELCO, and also the influence of the young man sitting behind you, who is a long-time friend of mine.

[Page 148]

I share Mr. Beatty’s views that the last few days have been positive in the rapport, in the dialogue, going on between this Committee and witnesses in helping us to formulate our views.

You said in one of your papers, the size of this country, the dimension of this country, the relative degree of underpopulation, makes it imperative that our system remain a federal system. This is self-evident.

I think the Chamber of Commerce, which is another particular group that I respect because they are in every nook and cranny of this country and are businessmen who want us to get on with the job made that very point. The federal system does however, you pointed out, create the inevitable clash periodically between various levels of government. That’s normal, and I might point out that the very nature of this Committee means at times we disagree with each other across the way, for instance, when Mr. Beatty. prefaced his remarks about the federal government being the instigator of problems, I note that you did not rise to the bait to agree.

The point I am really making is that we get this kind of leading question and I have to sometimes refute it. What has happened here, Mr. Gordon, in many weeks, which is normal, is that the constitution which we are discussing, or the discussions here on the constitution quite often become the forum for discussing all the problems of this country, and I think you would agree that the constitution is not going to resolve them, by the nature of our federal system.

For instance, the Cold Lake project which is held up, unfortunately held up, causing tremendous hardship to this country, the spinoff from the development of that project and the hundreds of millions of dollars which the federal government wants to inject in the development of resources in the west has that natural spinoff to central Canada. It is to everybody’s advantage that we go ahead.

I think it is rather naive and perhaps unfair to presume that the impasse over that project, and other projects, stems from the fact that we are going to amend the constitution.

If the normal, perhaps abnormal impasse results from strong-willed government—part of the federal system, not the most desirable part—and nothing we are doing in the constitution for instance, that can directly or indirectly affect the Cold Lake project. In other words, nothing we are doing here is the result of that. That is an energy policy. And regardless of what changes we make to this constitution, it is not going to affect the energy policy, so I make this point because I think you would not want the inference left from Mr. Beatty’s question that somehow the federal government is responsible for all the sins of the country and that somehow they will all disappear if only we stop proceeding with this constitution.

What I do agree with you, is that the uncertainty about where we are going is bound to have a negative impact on the economy. For instance, as I recall in ’76, or ’75, touring this country, thanks to the sponsorship of one of your members, the concern that businessmen expressed to me was the negative

[Page 149]

impact of the election of the Parti Quebecois and I would happen to be in that Assembly for those 18 months, so I know.

Then we had the detrimental effect, the uncertainty, particularly outside the country, as to the impact of Bill 101 on the business community; and then we had the very uncertain impact of the referendum and the outcome; all things that I can associate with because, although I now have the privilege of representing an Ontario riding, I spent many years in Quebec.

So this degree of uncertainty which has plagued the business community unfairly has resulted directly from dissatisfaction on the part of some of the provinces with the federal system. It is really in that spirit that the Prime Minister felt it is time we get on with the constitution, once and for all, perhaps not by the nicest method. Unilateral patriation is not something we appreciate. I do not. I would love to see through the spirit of cooperation by the provinces and by the federal government. And I have been around here long enough to be independent enough to say that the sins are not all on the side of the provinces.

But, be that as it may, we are biting the bullet, so to speak, and want to put that terrible issue behind us. Terrible issue, in the sense that so many people are hurt as long as it is unresolved,

Now, Mr. Gordon, we are bringing back the constitution, patriating it-unilaterally for one reason. There is no other way of getting it back with an amending formula. The amending formula is not a perfect amending formula, but it is the only amending formula that the provinces agreed to unanimously in 1971. What has happened ten years later, why some of those provinces no longer want to agree to that amending formula has been the growth of economic power in the extremes of the country,

And so, we are getting rightly or wrongly, a degree of selfishness, not only perhaps at the federal level, but amongst many of the provincial premiers as well. We are putting regional considerations above those of the country, and that was refreshing to me in the Chamber of Commerce submission because they put the country before the regions.

I happen to be an old-fashioned traditionalist who believes in a strong central government, not to the extent that you become a unitarian government, and I would like to know frankly from you, whose opinion I respect, whether you think that this country is too centralized? Or to put it another way, do you think it is important we retain a strong central government in a federal system?

Mr. Gordon: There is no question about that. Part of my comments in my introductory remark when you were not here, was that we strongly believe that Canada needs a strong federal government. I suppose when I made reference to the energy project, the constitution is inevitably linked to the energy program as well and for two or three reasons. As long as we are spending our time on the constitution, we are not spending our time on energy.

[Page 150]

And part of the constitution is the distribution of energy, not only the reserves themselves, but as well the ownership position and the reason I connect them, loosely connect them.

Mr. Mackasey: I think that is a fair observation. I think most Canadians connect them, but I think you have a deeper appreciation of how our system works and while this Committee is charged with the responsibility of amending or proposing amendments to a resolution, the whole issue of energy negotiations are going on simultaneously, parallel, if you like, if there are any negotiations going on at all. As an old labour minister, I think I recognize and hope the parties do not box themselves into a position where they cannot move. And I think that is fair.

So I do not think, again, and I am being a little hard here but I am trying really, to use you to establish things that are being said. I do not think the fact we are meeting and have been meeting continuously for weeks is in any way aiding or abetting the energy situation. I do agree with you that constitutional change could affect the balance of power between the central government and the provinces in the field of resources, if we were to agree to the changes Mr. Blakeney wants.

Significantly, a constitutional expert today from one of the provincial parties in Alberta, a professor of constitutional law expressed the opinion that having studied this resolution he could see no shift in those powers.

In other words, what the government is trying to do here is really something very simple, Bring the constitution back, provide an amending formula enshrining the barest minimums in a Bill of Rights.

So just in 24 months we will go to the people with a referendum to have our amending formula selected or when the provinces have voted.

But built into that suggestion, is the inference that the provinces and the central government can in the next 24 months resolve their difference or face the consequence of a referendum.

I know I have not left you any room for further statement, but I think that I owe that to you to explain as I see it as a Member of the government, that we have to put an end to the uncertainty in this country. We have to really establish for the next 20 years a relationship between the federal government and the provincial governments. We have to let a system work. There has to be the flexibility needed.

But I believe from the statistics that were brought to my attention today that the federal government is becoming less and less relevant in an economic sense in this country; that more and more of the decisions that affect our lives economically are being made at the provincial level. I do not think the country can sustain this much longer. I do really fear balkanization.

I think it is important that we have a stronger central government and in order to have that, we need the support of people that you represent.

[Page 151]

Mr. Gordon: I certainly do not disagree with that final statement.

The Joint Chairman (Mr. Joyal): Thank you very much Mr. Mackasey, I would like to invite now the Honourable James McGrath to conclude with our guest at this point.

Mr. McGrath: Thank you Mr. Chairman. Mr. Chairman, we are getting used to Mr. Mackasey trying to leave the Committee witnesses with the impression that there was unanimity at Victoria. There was not of course. There were two provinces that dissented from the Vancouver formula, Quebec and Saskatchewan. I think every time he tries to create that impression, I think it is incumbent upon us to correct the record.

Mr. Chairman, I believe this to be a very important brief and I think that you brought to our deliberations a very important message.

I see in your letter of September 2, prior to the First Minister’s Conference, to the Prime Minister, you outlined your concerns over the uncertainty that has been created in the country and the need to arrive at accommodation by compromise.

You talked about lost investment opportunities, lost jobs, jobs that are not being created and tonight you have added to that by suggesting that because of the climate of uncertainty in the country that this has had an impact on our great trading partner to the south, and on American investment in Canada.

We were largely involved in the last 24 hours with process as opposed to substance, although you had dealt in a very important way with some of the more substantive parts of the constitutional package we have in front of us.

I see a letter of September 2 to the Prime Minister signed by what I would consider to be the principal leaders of the private sector in the country, the important message that you had in that letter, the important concerns that you outlined and the concerns that you bring before the Committee today in your brief and in reply to questions from members of the Committee, it strikes me that consultation with the private sector, with the business community would be a very important part of the process of constitutional change, particularly as it impacts on the common market that is Canada and the need to maintain and preserve that entity economically.

I am just wondering what opportunity there has been up to now, your appearance before this Committee, what opportunity there has been for the business community in Canada to be a part of the process.

We consider the process to be ongoing as of October 2. when the Prime Minister made his statement to the nation and outlined the constitutional package that we now have before this Committee.

Mr. Gordon: Mr. McGrath, the Business Community on National Issues was founded in order to serve just that particular purpose. With the previous administration, prior to the defeat of the Liberal government just over a year ago, the Business Council’s members acted on a number of occasions in an advisory capacity to the then Prime Minister, in not any formal sense at all and I suggest to you sir, that this is an area

[Page 152]

that we would welcome and be most anxious to serve in, because we think that we can bring to the Prime Minister and to his Ministers an experience and a sense of judgment that I think is born of our involvement in the economy in the business community of Canada.

Mr. McGrath: When you referred to the previous administration, did you mean the immediate past administration?

Mr. Gordon: No, I mean Mr. Trudeau’s previous. . .

Mr. McGrath: Previous incarnation, I see.

Mr. Gordon: During the Conservative administration there was hardly time to set this up.

Mr. McGrath: Some of us know that all too well, sir.

With regard to the impact of some of the proposals before us on the economy, Mr. Irwin has referred to mobility rights, you have referred to the need to, and indeed Senator Roblin pursued this area, the need to knock down non-tariff barriers within Canada, but he also identified the dilemma that is Canada in terms of the regional dimension of the country economically. And of course, that is a uniquely Canadian problem because, coming from as I do from one of the— although it is a term I do not like to use, but it is one that is in vogue—one of the so-called have not provinces, with continuing high unemployment we have to take extraordinary means sometimes to try and protect what is a very fragile provincial economy.

And there are other sectors of the economy which sometimes require the intervention of the federal government, for example, I am thinking of the agricultural sector where, through the provisions of the National Farm Products Marketing Act, we have restricted the free flow of certain commodities across provincial boundaries. For example, eggs are restricted, turkeys, chickens, to name just three.

Whether or not that is in the interest of the country, and whether or not that kind of leadership leads to other kinds of non-tariff barriers created by the provinces is probably a question that has to be addressed.

But it would seem to me, that as national companies, you would have to recognize this reality of Canada. We don’t have to compete with your industry in the part of the world I come from, apart from, I might say the steel industry in Nova Scotia, which as you know, is going through some very difficult times and it will require government intervention, massive government intervention to keep that steel industry operative because of its importance to the economy of Nova Scotia.

What I am trying to say to you is we appreciate your concerns, but I think there is a concomitant need to recognize that for some considerable time, we will have to take whatever steps are necessary to protect regional economies, provincial economies and try and reconcile in some form of national industrial strategy, the need to accommodate regional and provincial aspirations in trying to build our economies.

[Page 153]

Mr. Gordon: I think it would be less than realistic for any of us here to suggest that there are not times when regional economic needs dictate actions that are to be taken. Our only suggestion this evening is that these should be done after very considerable consideration.

I think there is a proliferation of that sort of thing across the country, not all of which is supportive to the Canadian economy or in fact to those areas which it is choosing to serve, and I hope nothing we have said would detract from that.

We understand the problems of this large, thinly populated country with its difficulties in a lot of areas right across the dominions.

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

I would like to invite now Mr. Manly to conclude briefly. I remind him that the hour is now open for our next witness.

Mr. Manly: Thank you, Mr. Chairman, I will try to be very brief.

This morning Archbishop Scott of the Anglican Church spoke to us and he pointed out that a constitution has to be concerned basically with human rights, and with the rights of people to live, and I would like to direct your attention to such questions as the family farm, the need for Canada to preserve a diversity of lifestyles and when you talk, for example, about the need for mobility of capital, how would you see the possibility of protection for a farmer in Saskatchewan, for example, who wants to pass his farm onto his children and yet the price of agricultural land is being driven up by speculative money that comes in from another province, probably from Ontario because that is where there is a lot of money available for that sort of thing?

Or someone from Prince Edward Island, which is a province that very much wants to maintain its own lifestyle without simply having that province swallowed up for speculative purposes that really have no relationship to the whole history of that island for people who for 300 years have maintained a certain tradition.

How do you see that concern, which is a concern I think a majority of Canadians from coast to coast would share, how do you see that concern being protected with your concern that there be mobility of capital without any provincial restrictions?

Mr. Gordon: The BCNI has not addressed its attention to the farmers but I understand exactly what you are saying. I think that what you are asking is not in conflict with what we are suggesting.

We are suggesting that Canada be a market which would encourage capital, entrepreneurs, people right across the dominion, but we are not suggesting that those people who are operating on family farms should be subject to having their farms taken away from them in any way.

[Page 154]

I do not see that what you are asking for is in conflict with what we are suggesting.

Mr. Manly: So you would see that it would be a legitimate thing for provinces to pass legislation that would prohibit that kind of speculation?

Mr. Gordon: Speculation of oil development in Western Canada, you mean?

Mr. Manly: Speculation on land in western Canada?

Mr. Gordon: It is not a subject that we have devoted a great deal of time to. You started off by talking about family farms. and in this area I certainly agree with what you are saying.

Without making a general statement we would have to look at it very closely before we found ourselves in agreement or disagreement with what you are saying, but I, in concept I agree with what you have said.

Mr. Manly: Thank you very much.

The Joint Chairman(Mr. Joyal): Thank you very much, Mr. Manly, for your co-operation.

I would like to on behalf of the honourable Senator Hays and on behalf of all the honourable members of this Committee to thank Mr. Gordon, Mr. Fleck especially who has made the trip to join us tonight in this discussion, and Mr. Gerry Heffernan, on behalf of the Business Council on National Issues, to have come tonight and have shared in those discussions that will lead to what we hope will be a new constitution.

I would like, in so doing, to thank you for your contribution by way of publication of this document, this citizen’s guide to the constitutional question, which I think should be made available to as many Canadians as are interested, and yesterday we had the Canadian connection, a group of Canadian citizens interested in participating in the constitutional discussion in Canada, and if that debate is to go on for some months ahead of us, I think that document should be the first handbook that one should have in his pocket if he wants to participate in the discussion.

I would like to thank you very warmly for your contribution.

Mr. Gordon: Mr. Chairman, I would just like to, in accepting those thanks, say to you that we were delighted to have the opportunity and we recognize that you who have spent 190 hours listening to submissions like ours must be tired of hearing the same thing over and over again but all of us are interested in this country’s preservation and we are here because we believe we can make a contribution and we know that you are and we wish you well in your deliberations and we hope that all of us find at the end of the trail a country that we can be proud of.

Thank you, sir.

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

I would like to now call the witness table the representatives of the Social Credit Party of Alberta.

The Joint Chairman (Senator Hays): On behalf of Mr. Joyal and all Committee members I should like to welcome the

[Page 155]

Social Credit Party of Alberta represented by their leader, Mr. Rod Sykes, and Mr. Ray Speaker, a member of the Legislative Assembly and House Leader for the Social Credit Party.

The procedure, Mr. Sykes, I suppose you are familiar with it, you will make an opening statement and then the members would like to question you on your brief.

Mr. Rod Sykes (Leader, Social Credit Party of Alberta): Mr. Chairman, ladies and gentlemen, I think it would be helpful if I described very briefly my own personal background and Mr. Speaker’s in order to introduce our subjects because I do not believe we take a narrow and parochial view of the matters before this Committee, and our experience qualifies us perhaps to take a broader, a national view.

I was raised in Victoria, on Vancouver Island. I am a chartered accountant and worked in Vancouver and in Montreal, and as a matter of fact I was born in Montreal, worked there and married there. My children are French speaking, that was their first language because in fact they are French Canadians.

We came back west some twenty years ago and stopped in Alberta where I have been ever since, and I became Mayor of Calgary in 1969, and Senator Hays will know that after he ceased to be Mayor of Calgary there was a marked need for improvement and it went some years before it was filled.

I remained as Mayor for three terms, from 1969 to 1977, when I retired, voluntarily, which was quite unusual. Senator Hays again has that in common, he and I both did that.

I have worked not only between Quebec and British Columbia, and on the prairies, but also in the Yukon and the Northwest Territories, in logging camps on the coast, in mining camps in the Yukon, and on the coastal tugboats as a student. I think I have some appreciation for this country.

Mr. Speaker will introduce his own background.

Mr. Ray Speaker (Member, Legislative Assembly, Province of Alberta, House Leader for the Social Credit Party of Alberta): Very briefly, Mr. Chairman, I first of all would like to thank you very much for the opportunity of being here before the Committee.

My own personal background is that I have been a member of the legislature of Alberta since 1963 and so I have seen the time of calm as well as the time of storm at the present.

My responsibilities during those years, during the Manning Government, I was Minister of Public Welfare followed by Minister of Health and also Minister of Human Resource Development in the Province of Alberta with other related responsibilities.

My constituency is a rural constituency so I bring sort of a rural background along with the urban background of Mr. Sykes, the Leader of our party.

Mr. Sykes: Mr. Chairman, we proposed to deal at some length with the history and the standing of the Social Credit Party and the history of Western Canada because it is essential to an understanding of our position and the position taken by most western Canadians that we appreciate the context.

[Page 156]

Before I come to that, however, I will note that Social Credit is the official opposition in the Alberta Legislature and it is rather unusual for the official opposition to be speaking to a parliamentary Committee of this sort without the Government of Alberta having participated. The Lougheed Government announced some time ago that it did not recognize this parliamentary Committee or its jurisdiction and it would therefore effectively boycott it.

Now, that action is in our view somewhat embarrassing to Albertans. We would expect it of some of the smaller, newer and more emotionally erratic states in the world, but we would not expect it from a Canadian province. Severing diplomatic relations within a country is odd, and that perhaps is the best word for it.

Mr. Lougheed has denied Albertans the benefit of the national forum at the highest level. He has denied Canadians an accounting for his position and his policies before that forum. We are, therefore, in the position of saying that we are the only official Alberta representation that I take it you will hear in terms of the government and the opposition.

We would have been accompanied, by the way, by our party president, Al Romanchuk, who was until recently he retired also as Mayor of Grande Prairie, but unfortunately, as you may know, this is Christmas Day in the Julian Calendar and among Ukrainians it is an important religious and family festival and Mr. Romanchuk sends you his regards and regrets that he cannot attend.

Social Credit takes the view that we respect our national parliamentary institution, we intend to work within the parliamentary framework, we intend to put our case before the people of Canada by all proper means because that is the only way in which democracy can work. We regret, therefore, the official position of the Government of Alberta.

The Alberta Social Credit Party is, as it has always been, an independent provincial party with no alliances, no commitments to any other party. It has from its beginnings 50 years ago represented the interests of Alberta and it continues to do so.

We have always supported policies on merit, we do not take the view that everything that the government, that the opposition, that other parties may propose is wrong automatically. We have always supported policies on merit, causes that we think right regardless of the party espousing them, and principles that we believe in and we intend to continue.

Throughout our history we seem to have confused political writers, political scientists who think in simple terms of black and white and right and left. Social Credit has been criticized for being neither one thing nor the other, neither socialist nor capitalist. We believe that it is possible to take the best of both worlds and to adopt and implement consistently policies that owe nothing to the dogma of either the extreme right or the extreme left.

[Page 157]

That is what we have done through 36 years of government, because Social Credit is the oldest of Canada’s independent western parties. For 36 years without interruption it provided Alberta with what you will excuse my referring to as the finest government that any province in Canada has ever had. It was progressive and innovative and many of the policies and institutions that we take for granted today were conceived and implemented for the first time by Social Credit.

Of course, our unparalleled 36 years of unbroken government led to defeat in the end. Premier Lougheed campaigned in 1971, not against the policies and the programs of Social Credit but on the basis that the party is old and tried and that his group was young and dynamic and would do much the same thing, only better. Lest it should seem that I am unfair to the Lougheed Conservatives, let me say that with one major exception we think they have done what they said they would in 1971; nothing much different. They are, however, in the fortunate position of having inherited the farm just before the harvest.

We have concerns about the quality of the management of our farm in Alberta but this is not the place for those concerns.

The exception that we object to, the change that took place in 1971 is of course the war against Canada. It has always been Social Credit policy to negotiate differences patiently and quietly and in that over 36 years of federal-provincial negotiations, Social Credit never failed to arrive at a settlement satisfactory to all the parties.

The Lougheed Conservatives, on the other hand, have been at war, and that is Premier Lougheed’s own word, at war for nine years without winning a single barrier.

Social Credit stands in the political spectrum in the position 1 have described. In Mr., Aberhart’s words we seek political liberty with economic security, and of course our government delivered that for 36 years. We are, as I have said, not left, not right but certainly straight ahead.

The words “Social Credit” tend to bother people who find it an odd name for a party but there is a reason for that, too. The “Social” refers to a strong commitment to help those who cannot help themselves, a commitment to social justice in a multicultural society, and our society in Alberta is that of a majority of minorities; there is no single dominant ethnic group, no cultural group that dominates all the others or whose history does.

As a matter of interest, Social Credit made Ukrainian the language of instruction in the schools in the late 1950’s, and of course in 1935 two of the Social Credit members elected for the first time to any legislature in Canada were Canadians of Ukrainian background.

The word “Credit” means a great deal more than the ability to borrow. It includes reputation, character, confidence and

[Page 158]

faith. So you see that our name means something, and what it means is what we have lived up to.

The Social Credit Party has stood also for the protection of the cultural heritage and so far as I can tell that phrase, cultural heritage, was used for the first time and used frequently by Premier Aberhart. Our cultural heritage is not English, it is not French, it has nothing in common with the historical rivalries and conflicts of the two cultures of Central Canada. It is made up of the contributions of all those people who came from all over the world in the past 100 years, many of them with little more than hope.

It is a multicultural heritage, and when they came to Western Canada, when they came to Alberta, they came to a land where dreams come true if you work and those are the people who are stubbornly self reliant today, who believe that what they have earned and what they own is theirs. They have a respect for individual rights and individual achievements.

Mr. Aberhart, Premier Aberhart, from the very beginning in the 1930s spoke of a just price. In his day, and long before his day, as long as we have had a history in the west, we have not had the full benefit of fair market prices for our products. In the old days, before the turn of the century, afterwards into the 1930s, the problem was agricultural prices. Today little has changed although the problem now is oil and gas.

We regard the right to a just price, a fair price as a simple matter of human justice and Social Credit stands as firmly today as at any time in the past 50 years for a just price for everything the province produces and the just price is a fair market price, a world price, not an artificial figure set by an anonymous bureaucracy 2,000 miles away.

We are prepared to share. We always were and we still are. We recognize that the federal government has a right of taxation. We do not dispute that. We maintain that taxes, the sharing of tax fields has always been negotiated in this country’s history and that it can still be negotiated and must be.

So, with that provisal we say we are entitled to the product of our farms, the full fair market price and beyond that we are prepared to share by taxation with negotiation.

There is of course an old phrase that many of you will recognize that deals with the concept of the just price. It goes back to biblical days, “The labourer is worthy of his hire”.

Western Canada has been described as a cultural mosaic. Now, that term, again, has been used by Social Credit over many years to describe our society, although I believe it was first used by the historian and poet, John Murray Gibbons, in the 19305 in his book on the prairie cultures.

Western Canada consists of provinces that are part of a Confederation that is flexible enough in its original concept to accommodate a diversity of economic and cultural conditions

[Page 159]

across huge distances and in regions climatically very different. If it were not for the adaptability of this concept of Confederation, we would without any question have become either separate countries or states of the union to the south.

As it is, many Westerners today believe that there is, in Ottawa, an attempt to force Canadians into a rigid, unitary mould by changing the constitutional arrangements in another country, beyond our control and without our participation. It is this perception, as much as the economic conflicts which are conflicts of greed on both sides, in our view, that is responsible for the anger and the sense of outrage that is felt by many more Westerners than those actively considering separatism in any of its forms.

Since we do not teach history to any extent, I hope you will bear with me if I refer reasonably briefly to the history of Western Canada.

The history of Central Canada is of course the history of the English and the French, the founding races, as they have been called, the Protestants and the Catholics, and the conflicts between them. That history has ‘absolutely no relevance to Western Canada. It is not our history; it does not in any significant respect resemble it. Our people are not the English and the French to any great degree, either, and the conflicts of Central Canada are not important to Westerners.

After 1884, with the building of the national railway, the transcontinental railway, colonization was carried on energetically. Until the 1880’s, the settlement pattern was largely English. There were some French-speaking settlements and there are today, but the English domination in the 1880s was pretty well absolute. By 1900, when colonization had hardly got under way effectively, approximately one quarter of the population of the prairies was not of English speaking background, not of British origin.

Today in Calgary, or in Alberta for that matter, roughly six out of ten Albertans are not of English speaking origin and that has been the case for more than 30 years.

My brief indicates, roughly, where our people came from and when, and it is fairly easy to put a date on these settlements because they were mostly organized. They were not carried out for the most part by individuals, they were carried out by colonization and settlement schemes, sponsored by organizations and governments.

From the 1800s on we had the Germans, the Austrians, the Jews, the Russian Mennonites, the Swedes, the Finns, the Danes, the Norwegians and the Icelanders. The Hungarians, and it is interesting to note that in 14 years, 2.5 million Hungarians came to Canada and the United States, before World War I.

The Americans, of course. Canada deliberately sought American settlers after 1900 from the Mid-West, from the Dakotas. One promoter alone settled 50,000 families in Saskatchewan and much of the pattern of development from 1900 on was dominated by the movement north from the American

[Page 160]

agricultural states of settlers who found better land, cheaper land in Canada.

The dominion government aimed directly to sponsor and encourage and subsidize American immigration into the West with great success. And that is why, today, it is hard travelling across the prairies to find families who do not have friends and relations south of the border in the Dakotas, in the other American States. That is why, too, we feel no antagonism to our American neighbors and brothers. 1n many respects they are our relatives and our friends.

The Romanians, the French, very few French Canadian because the province of Quebec, the religious institutions, did not encourage that for the most part, quite apart from missionary efforts, and that, I think, is a pity.

The Doukhobors, Ukrainians, the English, Chinese and then more or less as individuals, after World War 1, Lithuanians, Poles, Greeks, Italians, Belgians, Dutch and Japanese. And these newcomers came as a flood at the beginning of the new century, very few with means, mostly with a will to work and a hope for the future.

So our society, that of Western Canada, is truly multicultural. It is not an artificial multicultural society; it is not the concept of a Committee. It is the natural result of building a country, and it works and we live and breathe multiculturalism every day across Western Canada. We do not have to talk about it because it is there.

This is a Canada with a culture and an identity all of its own and it owes nothing, as we see it, to the other, older Canada, with a different history. Except, of course, that we are part of the same Confederation, a Confederation, as I have said, flexible enough to allow us all to live and work together, which is all we want to do.

Much has been said about alienation and separatism. Alienation, of course, is defined as losing a former friend, as making unfriendly somebody who once was friendly to you and in that respect, of course, one could hardly choose a word more inappropriate than alienation because, quite frankly, from the beginnings of Western history there has never been any affection for Central Canada and Ottawa.

The Prime Minister in 1872, Sir John A. Macdonald, in a letter to a friend, said:

Take care not to mix yourself up too much with this so-called Ontario party. They seem to think that the whole of the Northwest was made for that province alone.

Even the Prime Minister, at that time, felt that Ontario had an economic interest in the West.

As a matter of fact, Mr. Chairman, we would be very happy to have David Crombie as an immigrant. He would bring a good deal more than hope, a will to work, and we would like to have him work for us.

In 1869, the Report of the Palliser Expedition recommended that two Crown Colonies be established, one West of the mountains and the other to the East, with headquarters at the

[Page 161]

Red River. And the reason for that recommendation was, and I quote from the Palliser Report:

The impossibility of governing a country at such a distance from the seat of government in Canada.

There are many Westerners today who would support the view of the Palliser Expedition, that so far away it is impossible to govern.

The old grievances were many, and most of them did have their roots in the problems of dealing with a government so far away that it knew nothing about the local problems, and understood less. Ninety years ago, the grievances were freight rates, grain handling inadequacies; they still are. They were fair prices for Western products, and they still are. They were policies made in Central Canada for Central Canada, and they still are.

It seems as if Central Canada has learned nothing in the last hundred years, while a whole new world has been building itself in the West. That is why I say that this is not alienation, because nothing has been lost that ever existed.

There are some references to newspaper comments of the day and you can find as many as you like to support that premise.

But the burning issues of the times were representation in Ottawa, provincial status, and control of natural resources. And that is literally a hundred years of our history, without exception.

All through that period there has been a separatist sentiment, but it has rarely been so evident as now, and the West has never been so strong economically, so clearly able to be self-sufficient. And that is why, in these times, those who ridicule the idea of separatism do so from ignorance, and they do this country a great disservice, they create separatist sentiment, and they make the task of those who stand for unity that much the more difficult.

No thoughful and prudent person who has the interests of Canada at heart can take separatism lightly. It is fully as serious as the Quebec brand and perhaps more so, because Quebec clearly had a great deal to lose financially by separation, whereas the West has a great deal to gain financially. Of that there can be little doubt.

So it may be fair to talk about Western anger, a Western sense of outrage, because that exists and it cuts across all Party lines and it exists among people who are not associated, in any sense, with a separatist party or group at the present.

The Alberta Social Credit Party stands solidly and unequivocally for Canadian unity. We believe that there is much more to a country than dollars and cents. We believe that to consider the destruction of Canada would be to break faith with the Canadians-by-choice, who are the Western Canadians. We believe it is necessary, however, if this country is to be held together, to realize that there is a sentiment to be

[Page 162]

taken seriously and that the accommodation, the negotiation, and perhaps the time to think and breathe we have had in the past is necessary again.

It is not enough for Ottawa to say trust us, because trust has to be earned, and it takes time, a settled course of conduct over a period of time and many Western Canadians do not think that the record justifies trust, nor does it justify belief.

Therefore we say that we would recommend that we need, the country needs, a breathing space, a time away from radical change and urgent pressure, artificial pressure, a return to the kind of government that is consistent and reasonable and accessible and you may well say that that should happen on both sides and we would agree with that, because without communication there can be no negotiation, no settlement. There has to be communication, but there has to be time.

Let me deal with the proposal before us. In respect of the submission by Indian groups, we do not presume to say what the rights of Indians may be. We do not know, but we do know that eleven treaties were entered into between the years 1871 to 1921, and those treaties involve the Crown, rather than the provinces, the Crown in right of Canada.

From the point of view of the parties, the local parties, they involved the Queen, or the King as the case may be.

The status of those treaties concerns rights which are not conferred by the provinces nor controlled by them, and therefore we say that the Indians must be consulted in any proposed constitutional changes before such changes are made.

We believe that they have a right to be consulted, a right to participate, and it is the position of this Party, the Social Credit Party of Alberta, that they should be consulted and should participate, and that is not a new position, because when Mr. Speaker was a Minister in the Manning Cabinet, the Government of Alberta took the position that the Indians of Alberta were first-class citizens who would be eligible for all the rights and services available to any other Albertan without regard to the question of fiscal responsibility and the Government of Canada and the Department of Indian Affairs. We did not use the Indians as levers in a federal-provincial squabble. And we believe, today, that they are Canadians like any other Canadians, at least Albertans like any other Albertans.

That is a position on which Mr. Lougheed’s government is not in accord, but it is Mr. Lougheed’s government that changed the approach and we would change it back, given an opportunity, which we confidently expect.

Therefore, so far as Social Credit is concerned, we do not presume to say what the rights of the Indians under the treaties may be, but we say that the treaties confer on them the right to be consulted, the right to participate with the provinces.

[Page 163]

The history of this constitutional proposal is an interesting one. It is not a bold, new initiative as it has been sometimes presented in the press. It is in fact a corpse revived, because it is essentially the St. Laurent policy initiative of 1949-1950. In the 1949 campaign he spoke of it in speaches in the Maritimes and in 1950 he attempted to deal with it on almost exactly the same basis as now, that is patriation, but amendment first, abroad, in another country.

The three changes differ slightly from what is proposed now, but Prime Minister St. Laurent’s advisors prevailed on him to abandon his scheme, which at that time, did appear to be original and bold and he abandoned it in the interests of national unity because he was convinced that it would create problems more serious than those that existed then.

It seems reasonable to suppose that the 1980 proposal to patriate the constitution has its origin in the 1950 proposal abandoned by Prime Minister St. Laurent for good and sufficient reasons 30 years ago.

We think that the proposal before us is not new, not original. We think it is the old one raised from the dead, with some of the attentions, the cosmetic attentions of a political emblamer to make the corpse look warmer. In other words, we are not impressed.

On patriation, the position of the Social Credit Party is simple: we support it. We see no reason why the BNA Act cannot be domiciled in Canada. It could have been done anytime these past 30 years. It can be done at any time, it is simple matter of housekeeping and we see no reason why it should not be done. We support it.

When it comes to amendment, it is our understanding that Westminster will be asked by the Government of Canada to amend the BNA Act before it is domiciled in Canada. We understand that the proposed amendments are not agreed to by the provinces and that they are such as to alter, or potentially to alter, the respective powers of the provinces and the federal government and the relations between the two.

What is sought is not, therefore, the transfer to Canada of existing constitutional legislation; but rather the creation of an entirely new and different piece of constitutional legislation on the skeleton of the old. It is presumably thought that the use of the existing legislation as a skeleton to be clothed by the new legislative provisions somehow confers some legitimacy on the resulting legislation. This, in our view, is a most serious mistake.

We have heard a good deal about colonial intervention in Canadian affairs, or the possibility of it, although we are not aware of any colonial intervention, within living memory. But

[Page 164]

it does seem to us that it is hardly reasonable on the one hand to warn about potential colonial interference and on the other hand to ask the government about which you are complaining to interfere on a scale, and in affairs more controversial and sensitive, than any that it has ever dealt with in this country’s history.

It is hardly appropriate, we say, to complain about colonial powers, to declare that you are acting to remove the last vestiges of the colonial relationship, and at the same time to ask the British Government to carry out an act of colonial intervention in the internal affairs of Canada, between the federal government and its provinces—one last colonial act greater than any that ever preceded it—and that at the most inappropriate time possible in our history.

There is a Yiddish word for such an approach: it is “chutzpah” and it is defined as the state of mind, the degree of efrontery, that permits a man to murder his parents and then to throw himself on the mercy of the Court because he is an orphan.

What Canada has apparently asked the British Government for is a favour, one last colonial act to end all colonial acts. What we are saying is: “Do for Canada what you did for Ireland. Give us a constitution made in England, one in which we do not participate, one in which we were not consulted and then send it back and let us see how we get on”.

The position of the Alberta Social Credit Party is that the settled and accepted federal-provincial procedures, which have evolved over a hundred years of federal-provincial negotiations must continue to prevail until there is agreement in Canada by Canadians to change them. We think that it is wrong to say that agreement cannot be obtained in Canada, for it has been obtained before; and if it cannot be obtained, in any case, it is possible that the federal government is wrong, that it has not tried hard enough, or perhaps simply that the timing was wrong.

There is no crisis, no constitutional crisis, in thise times that requires the very nature of our country to be changed, without the consideration, the participation and the consent of Canadians.

We say, therefore, that changes made in England cannot be acceptable in Canada; that any such changes would lack political legitimacy, would never be acceptable to Canadians, and would be a permanent policital sore creating conflict and division for years to come,

So our position, ladies and gentlemen, is that the constitution must be brought to Canada unchanged, so that Canadians may decide, in Canada, what to do about it. Because, only a constitution made in Canada can be acceptable to. Canadians. Mr. Chairman, that is the submission of Alberta Social Credit Party. Thank you for hearing us.

[Page 165]

The Joint Chairman (Senator Hays): Thank you very much, Mr. Sykes, and I will now call on Mr. Hawkes to question our witness.

Mr. Hawkes: Thank you, Mr. Chairman, and welcome to my fellow Canadians from Alberta. I started that way earlier with Grant Notley and it makes me feel comfortable to have people from my province in the witness chair. It has not happened often and I am glad you came.

It has been interesting to watch Mr. Mackasey watch Mr. Sykes in his presentation and, I think, with some sense of admiration for the skill which those of us who have lived in Calgary have enjoyed over a considerable period of time. One of my early exposures to the then Mayor of Calgary was on a radio program, and you may have forgotten the occasion because you were on so many but it had impact on me.

I heard you one day explain that the bad old City of Calgary was going to fine people for having dandelions in their yards and if you looked around, the parks which the city owned had far more dandelions and as the mayor responsible for policy, you were going to straighten it out and the people could count on you. An I thought, now, there is an unusual skill.

I have three questions.

Mr. Sykes: If I may just comment on that. I believe that my advice on dandelions to you, to my fellow Calgarians was to learn to love them.

Mr. Hawkes: I am pleased to see in the first pages of your brief that, on behalf of your party, you say we have nothing to hide and we are prepared to expose our ideas to the people to whom we are accountable. I hope that is the way we can proceed through the questions.

A brief question on separation. You dealt with it at some length in the brief and I hope members may take the opportunity to read it as well as to listen to it. I think we are probably on common ground in the sense that we believe we come from a region of the country that believes passionately in Canada as we have experienced it, know it and want it. I think I saw in part of your brief the sense, and you did not say it this way, but the sense that Eastern Canada or Central Canada can arrange things to separate from us, if they want, but we will fight like crazy to keep them part of Canada. But it is possible for them to leave. You might want to check that out.

Last night our witness from Saskatchewan said it another way on behalf of the people of Saskatchewan: we want to be partners in Confederation. He also said, we will not be the victim. And I am wondering if those different ways of expressing it might help us. Are we on clear cut ground; are we saying the same things?

[Page 166]

Mr. Sykes: Well, to some extent it seems to me that it is the difference between a bottle being half-empty and a bottle being half-full. We take the rather optimistic view, optimistic in the minds of some people today, that this Confederation has survived worse problems in the past.

We have good governments and we have bad governments and we have to live and work our way through both kinds.

I do not think that I would say that if, heaven forbid, there were a division in the country, that one side, one party, the West, was in fact remaining the original Canada and the other one was leaving but I can understand your argument.

I would prefer to say simply, look, we have always been partners in Confederation. Confederation has been a loose and flexible arrangement, and it must be when I stretches over such vast distances with totally different climates, totally different regions and people with a totally different history. In any part of the world but this we would have half a dozen countries at least in what is Canada. And for 100 years we have made it work. And, for 100 years of course, we have been somewhat frustrated because it is not easy. Well, it is not easy now. It never was. So let us work to keep it together.

And, Mr. Hawkes, of course, you appreciate my warning that insensitive remarks from the central government do great damage when people are angry. It is in fact, in many cases, tantamount to throwing gasoline on the sparks or smouldering timbers, the prairie brush. We are asking you, please, do not throw anymore gasoline.

Mr. Hawkes: I share that sentiment.

I am going to direct your attention to just a small part of page 6 and page 7 and starting with page 7. I do that in the context that you and your party are seeking to be the Government of Alberta and might in fact, at some subsequent election, once again become the Government of Alberta. One of the issues on our plates today is pricing. You mentioned it in relationship to agriculture. It is clearly there in oil and in other products produced by the West.

You say on page 7 that: “A just price is not negotiable.” Page 6. Okay.

Mr. Sykes: Yes, that is correct.

Mr. Hawkes: Yes.

Mr. Sykes: Page 5 and page 6.

Mr. Hawkes: Top of page 6. Page 5 and page 6, that is what it is.

Then you say on page 5, really, and you support it biblically, a just price is world price. It is commodity value price.

Mr. Sykes: It is a biblical quotation and it was to make Albertans feel at home.

[Page 167]

Mr. Hawkes: Okay. And throughout your brief you speak about working within the existing framework of law, that is what our Confederation is about.

Mr. Sykes: No, sir. No. The existing framework of custom and practice build up over 100 years. The law is something different.

Mr. Hawkes: Okay.

Mr. Sykes: I have never thought justice and law resembled each other to any great degree.

Mr. Hawkes: All right. If we just think of oil for a minute, and the situation that has been around over the last three months, and the Petroleum Administration Act.

The federal gouvernment in the distribution of power has the power to set price on interprovincial trade. And you are saying on behalf of the people of Alberta that for this product called oil we must have just price, which is world price. Within this country, then, it seems to me that the policy option which would have been available to you at that moment would have been to reduce production to that quantity required for within provincial boundaries because it is not negotiable to send it outside for anything less than just price. I am wondering if you feel, out of your travels in the province, the people of Alberta would have supported you in that kind of action, given that it is really the only possible legal response that you would have in a policy sense. Do you think the people would have supported you in that kind of drastic position?

Mr. Sykes: Mr. Hawkes, if the Social Credit government had ever been so foolish as to get itself in such a position, I would be reluctant to answer the hypothetical question. But I think the people of Alberta would probably vote it out of office.

The fact is that for 36 years the Social Credit government negotiated these very pricing formulae, the revenue sharing, the taxation fields with Ottawa and you will remember, as I do, in the fifties and the sixties that there were times when negotiations were considered very tense, but Premier Manning never lost his cool. He never called names and he never abused. Nor did people on the other side for that matter. The negotiations were always resolved and as I have said, we are prepared to share. Social Credit was and is prepared to share.

How, if you are prepared to share, and you are prepared to negotiate, and you say that the sharing takes place after you have been paid for your product, when you have your revenue, that is taxation and the settlement on the fields of taxation and the fair shares. Well, then the case you describe does not arise.

I would say that it has arisen, or the present situation has arisen simply because there has been an intransigent attitude, frankly, on both sides.

You see, you have to go back to 1973 to the tearing up of the oil royalty contracts which were contracts for 10 years, unilaterally repudiated by the Government of Alberta. Of course, it makes it very difficult for the Government of Alber-

[Page 168]

ta, the Lougheed government, to accuse the federal government of bad things in any particular negotiation because, of course, the oil industry has a long memory.

Our position is, simply, what it has been from the beginning, from the thirties with Social Credit governments and for the 50 years or 60 years or more before that: that we are entitled to market prices for what we produce. We do not expect to sell our wheat, our grain, for 75 per cent of the world price this year. We do not expect to sell our oil and gas for 75 per cent or 50 per cent or whatever of the world price or an artificial price, a blended price, whatever you like to call it. We do not expect somebody to come along and tell us that next year we are going to share our cattle and beef is going to be sold at 75 per cent of its fair value. We say markets are markets and ownership is ownership.

If we own our house, we own all our house. If we own our farms, we own all our farm and we are entitled to the products.

You have a right, the government in Ottawa, the national government, you have a right to tax the revenue. You have a responsibility as we have to negotiate that taxation, that sharing of the fields of taxation of the revenue. And we are prepared to share at that level but do not try to share before we receive the price because then you are attacking our ownership.

I cannot be a three-quarters owner of my house or my farm. I either have it or I have not.

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

Mr. Hawkes: Could I just finish this?

The Joint Chairman (Senator Hays): I am sorry. We have a very tight schedule here. You have gone over 11 minutes and we have a lot of speakers and if they all speak, it will take us four hours and you multiply that by ten and I now call on Mr. Manly.

Mr. Manly: Thank you very much, Mr. Chairman. I would like to welcome Mr. Sykes to our Committee this evening but as a western Canadian with roots, ancestral roots in eastern Canada, I take great exception to your remarks about alienation.

I believe very strongly in a united Canada and I believe that we can make it work.

I take exception to some of your other remarks as well. For example, your statement about a just price and defining it as simply what the rest of the world is willing to pay. And I would like to ask you, in that context. if you feel that a just price for borrowing money, a just interest rate is whatever the market will stand; if just rents are, when we have a minus zero vacancy rate for apartments in most Canadian cities, are just whatever we can get on the market. And in place of your rather irrelevant biblical quotation, I would like to suggest a better one from the prophet Amos who said that the righteous are sole for silver and the needy for a pair of shoes and I think that is much closer to your definition of a just price than your quotation.

You talked about the motto of the Social Credit party as being not right, not left, but straight ahead. Often when we go

[Page 169]

straight ahead and we do not see what is to the right or to the left of us, people who are on the margins of life are somewhat left behind.

I was pleased to see that you did make note of the shameful treatment of Canadian Indians by the Government of Canada and I would agree with you there. And you also pointed out the shameful treatment of Indians by the Government of Alberta.

One of the major problems that Indian people in Alberta face right now is the refusal of the Alberta government to deal with treaty land entitlement, that is to grant additional reserve lands to Indian people in accordance with the expanding population and they have been trying to work some kind of an arrangement with the Alberta government on that similar to what has been done in Saskatchewan. And I am wondering if you could give your party’s policy with regard to treaty land entitlement.

Mr. Sykes: No, sir. This is not the place and not the purpose. We are here to deal with the principle of participation, whether they should be consulted and should participate. I do not have instant policies on that or perhaps a number of other things that you might think of.

Mr. Manly: I would suggest to you, sir, that this is not a question of instant policy. This is a question that has been plaguing Alberta for a considerable length of time. If you are wanting to represent the people of Alberta, I hope that you will get your act together on that.

Another area that I think is important, and I hope you have an answer to this because it is of long standing, relating to the rights of the Hutterites.

As you know they live on communal farms in Alberta. There has been legislation in the past by Social Credit governments that restricted the growth of these communal farms and to me this seems to be a denial of the diversity of cultures that you pointed to so proudly in Alberta and I am wondering if you could say what your present policy is with regard to that. What do you think the constitution of Canada should have with regard to diversity of land ownership patterns.

Mr. Sykes: While, I think that this may not be entirely on point, Mr. Chairman, I am prepared to answer this question because the gentleman appears to be at least 10 years out of date.

An hon. Member: More.

Mr. Sykes: More. The fact is that there has not been that legislation that he talks about for many years and that legislation was removed by the Social Credit government and the Hutterites are Albertans like any other Albertans.

Mr. Manly: I am pleased that there is no possibility of that taking place.

Mr. Sykes: You see, sir, you cannot attend a meeting without some profit. Well, relate it to Amos.

Mr. Manly: You talked about the need to patriate our Canadian constitution . . .

Mr. Sykes: No, sir.

[Page 170]

Mr. Manly: . . . as it is. Or to bring back the British North America Act without amendment.

Considering the concerns of Indian people that their rights will not be recognized unless they are entrenched before the British North America Act is brought home, that once the Canadian government has control of the constitution, their rights will be ignored, that it will be very difficult to get any kind of agreement from the provinces to enshrine their rights after the British North America Act is brought home, how do you square your concerns for Indian people and their rights with your desire to bring the British North America Act home with no changes?

Mr. Sykes: The concern, Mr. Chairman, that I have expressed is a concern that people who, in our view have a right to participate, a right to be consulted should have the opportunity. It goes no further. I have said specifically that I am not taking position on any particular claims or grievances. I have said further that the record of Social Credit in dealing with the Indians of Alberta, like any other Albertans, which is what they are in our view, is a good record and I can stand on that.

The other points, I do not think this is the time or place to get into and quite frankly, I have not studied them and I have no opinion to express. I am dealing with a principle, the right to participate, the right to be heard.

Mr. Manly: But surely, Mr. Sykes, you must recognize that there is a time when people can be heard and after that moment has passed, they cannot be heard.

Once you have left this room you will not be heard by this Committee. Once the Indian people have had that constitution brought back to Canada, they will have no leverage with the Government of Canada or with the provinces and surely you must recognize that unless they have some protection now, their rights are going to be completely ignored and you cannot simply say that you agree with this in principle and that they should be consulted without saying how they are going to participate, how they are going to be consulted now, when it matters most.

Mr. Sykes: Yes, I certainly can. I can say what is right in my view without describing the regulations and the mechanics by means of which what is right may be brought about.

If you are suggesting, however, that you distrust the Government of Canada so much that you want our constitutional document, the BNA Act, amended on behalf of one particular group in another country before it is brought back to Canada, then I would suggest sir, that you discuss the Government of Canada too much to participate in its operations. I am shocked.

Mr. Manly: I suggest that some of the Indian people, after a history of over 113 years with the Government of Canada and with the provinces, feel that they can have no confidence whatever in the legislative process. They have certain guarantees that have been given to them by the British Crown, as I

[Page 171]

think your brief recognizes, and before the Canadian Government has complete control of the constitution they would like to see that these guarantees are carried over, and surely you must agree that is a reasonable position?

Mr. Sykes: No, sir, I do not.

My position is clear as I have stated it.

I have to say that I do not presume to speak for Indians and I think it is wrong for anybody to try and do so. They are entirely capable of speaking for themselves, like any other Canadians, they can speak for themselves and it seems to me, Mr. Chairman, most presumptuous to speak for them.

I am speaking on a matter of principle that would apply to Indians or Menonites or Hutterites or any other minority group that has special treaty rights.

Mr. Manly: I would simply point out that it is not a question of us presuming to speak for Indians, but rather over the past several days we have heard many Indian groups come here and speak for themselves very eloquently, making the kind of point that I would like you to recognize, that if their rights are not entrenched now, they feel that they will be completely left to one side and all your rhetoric will be of no help to them at all.

Mr. Sykes: Well, sir, I was not trying to indulge in a rhetoric on their behalf but I must say that you leave me completely confused because, as far as I am aware, you and your party have rubber stamped the government’s proposals to carry this thing out and . . .

An hon. Member: Hear, hear.

Mr. Sykes: And I do not know which side you are arguing on.

Mr. Manly: Right now I am trying to get you to recognize the need for Indian people to have their rights entrenched before the constitution is brought home.

Mr. Sykes: In other words, you are supporting the amendment of our BNA Act in England without the participation of Canadians, without consultation of Canadians, without the provinces, and I say to you that is not our position.

Mr. Manly: I am saying that there are certain constitutional rights of the Indian people that are not presently included in the British North America Act that should be included in any patriation package before it is brought . . .

Mr. Sykes: Well, sir, you have a right to your personal view but my position is as I have stated it.

The Joint Chairman (Senator Hays): Thank you, Mr. Manly.

I now call on Mr. Henderson.

Mr. Henderson: Thank you very much.

First of all I would like to welcome Mr. Sykes and Mr. Speaker here this evening with their brief. I think it is a very good brief but I am very interested in your remarks on western alienation. I am interested because I am from the east, Prince Edward Island, and Easterners have felt for a great number of years that there was some alienation down there.

[Page 172]

I, like you, sir, have travelled this country extensively, having the opportunity to hitchhike across this country three times in my lifetime as a young chap, I worked in every province in Canada including the great province of Alberta, and of course in the area where you come from, the part of Alberta.

I find and I have found in my travels across this country that each and every province, the people in these provinces are truly Canadian. I have never found alienation. I must say that, We tend to, and I have heard many groups come here before this Committee and some members, of course, state that this big bad province of Ontario is the bully. I cannot honestly say that I have felt that personally, coming from a province and having a past history of provincial politics I have found in my meetings with the Government of Ontario, the government of the day in fact, that when it comes to sharing they have never looked down on a province like Prince Edward Island, We get some puns from some people but I am not saying that in the political sense.

So I wanted to make that point clear if I could, that this country of ours is probably not as divided as some of us would have others think. I am saying it from my personal working experience across the country.

You mentioned insensitive remarks by, I presume, the Canadian government, and if there is such insensitive remarks, if there were, there is no question that it raises some controversy and some thought and I say this because there was a remark made by someone in Alberta: let those eastern so and so’s freeze in the dark, and I can tell you that that was not well received in my province, but I was interested in your comment on sharing and I would like for you to if you could just elaborate a little bit more on it because in parts of this country, including my province, which has three basic industries: agriculture, fisheries and tourism, which, as you know, or certainly Mr. Speaker would know coming from a rural area, are high energy using industries, Also, we have no natural resources as far as generating electricity is concerned, so we are totally reliant on oil fired electrical generation, so how do you see the sharing so that we can all enjoy the benefits of a country that we all should be proud to be part of and equal, I hope you believe in that principle, how do you see the sharing taking place in your concept of revenue sharing?

Mr. Sykes: Well, let me try to deal with those several points, sir, in sequence, if I may.

You stung me with that reference to that dreadful bumper sticker. That was brought some years to Toronto by a cabinet minister in the Lougheed government. It was not originated by that Cabinet minister but it was thought to be a joke to bring it down to Ontario and to show it to the press, and that was roughly a week before I was speaking in Toronto at the Royal York to the Canadian Association of Mobile Home Manufacturers Annual Convention, and I remember it well because the reaction was so startling and shocking, both in Alberta as well as in Ontario and the east, that I took to that convention my own bumper sticker which Mr. Mackasey may remember, and

[Page 173]

I got a good deal of local publicity because I asked the press to give it as much publicity as they had the one shown by the minister.

My bumper sticker said simply: that eastern bastard is my brother; and subsequently the mayor’s office received a barrage of personal letters from rural Ontario pointing out the inference that that reflected on my mother, asking whether I had thought of that. At that point I decided to leave the bumper sticker business alone.

The attitudes of people across Canada, I agree, are friendly. In the main there is no personal antagonism. Person to person, people to people. I lived for eight years in Quebec in the 1950s and as I told you, I married there and four of my five children were born there, and of course their first language, when we came to Alberta, when we arrived in Calgary they did not speak any English. They learned very quickly. And I remember so much what they used to say to their mother: pauvre papa, pourquoi parle-t-il si mal francais? Poor daddy, why does he speak French so badly? Well, I did not have the advantages they had, and it is a great advantage and I was treated throughout Quebec and I travelled a great deal, and I worked in Ile Manine, Lac St. Jean, Chicoutimi, Arvida, Fort Alfred, Quebec City, I was treated with great kindness and courtesy everywhere I went. Those were very happy times and I found none of the tension and conflict that we hear about today.

However, having lived at both ends—well, not a both ends with respect to the Maritimes, having lived between Quebec and the West coast I learned very quickly that what the Quebec papers said about the attitudes in the West was frequently startling to a Westerner, and what the Western papers said about the attitudes in Quebec was frequently startling to a Quebecker, and most of the time we did not know that the apparent approach of much of our national press was: lets you and him fight.

The fact is that, people to people, I believe we are still friends; that region to region and government to government, when there are critical issues that affect peoples’ lives, their savings, what they have earned and what they have worked for and what they hope to pass on to their children, those issues are the issues that can destroy a country and Canada would not be the first.

Now, within the framework of Confederation, government to government, there is lots of room for negotiation, for bargaining, for flexible adaptation, and there has always been that recognition in this country that because of the looseness of our Confederation and because of the ambiguity of some of our arrangements, it takes time to get an agreement, time as well as good will, and only recently we have not been allowing the time to adjust. We seem to be hitting too hard, to frequently, and that I think is probably the most serious single cause of the present anger and sense of outrage because it does exist.

Now, I have travelled throughout the prairies and I do constantly, and I frequently have to go to small communities because, as you must know, the backbone of Social Credit has always been those small communities. I am impressed,

[Page 174]

shocked, by the personal attitudes, the change that I have seen on the part of people who are now bitter and antagonistic, not to you, if you were to come there or to me personally, but antagonistic in terms of the government in Ottawa and what it is trying to do to us. It may be that there is a war of propaganda, the Alberta government versus the national government; but the casualties are the states of mind of thousands and thousands of people across the country who begin to think in terms of antagonism and conflict instead of in terms of accommodation and friendship and, Mr. Chairman, I am saying and I will say it again, that this climate is changing, it has changed, that separatism is something to take seriously and that if there were relief of the pressure, a breathing space, a time to consider and a return to bargaining and negotiation, which I know takes two sides, then I believe the whole country will benefit because people can take only so much pressure, only so much conflict.

When it comes to sharing, I have a vast fund of ignorance personally respecting the Maritime provinces. I know little of their history. I know that in this country’s history we have perhaps three racial groups, three cultural groups that have suffered more than others. In the Maritimes the Acadians, in Manitoba the Métis, and of course in the West the Japanese, all of them good Canadians and all of them a part of the process of building a nation, part of the mistakes that come, the mistakes that perhaps teach us not to make those mistakes again.

Of course, we are prepared to share, as I said, by negotiation of taxation, of revenue, without questioning our rights of ownership which strike at the very root of human rights in the minds of our people and I think of people across the country,

It is perfectly proper for the national government to assist a province like Prince Edward Island in appropriate ways. There is no way in which Albertans in general or the Social Credit Party in particular would object to that.

On the other hand, I must say that I do not think it should be made too comfortable to stay in the Maritimes because some of the very best people we have in-the West come from there and we would like them to keep on coming.

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

I now go to Mr. Crombie.

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

The Joint Chairman (Senator Hays): We are going to the five minute rounds now, Mr. Crombie.

Mr. Crombie: Five minute rounds, thank you very much.

The Joint Chairman (Senator Hays): If you give us a five minute question you will get a 20 minute answer.

Mr. Crombie: Does his answer come out of my questions?

Mr. Sykes, it is a pleasure to see you again and in other areas of responsibility than the municipal field.

I have two or three questions with respect to the constitution, but prior to asking those questions, I would like to pick

[Page 175]

up on one question that was asked by my friend Mr. Hawkes, because I know he wanted to ask a further question and it deals with the question of price, not particularly or necessarily directly related to the constitutional question but I think you would agree in the minds of many western Canadians the question of the constitution and the question of energy pricing are firmly fixed as one event or certainly closely associated.

My understanding from your brief on pages six and seven is that a just price to you is a world price?

Mr. Sykes: A market price.

Mr. Crombie: Well, a market price is a world price?

Mr. Sykes: Which is the world price. For those products which have access to world markets, of course it is a world price.

Mr. Crombie: My understanding is that the current discussions over the last number of months has seen Alberta moving towards 75 percent of world price. Now, you seem to be arguing for 100 per cent of world price?

Mr. Sykes: Of course, that is what ownership is about.

Mr. Crombie: All right, I just wanted to clarify that. Now, could I go to my own questions? Thank you.

Now, I think it worthwhile because it does strike me that you regard the question of 100 per cent pricing as simply reflecting the fact of ownership.

Mr. Sykes: Indeed. If I am not entitled to the full market price for anything that I think I own and sell, then in fact I do not own it.

Mr. Crombie: On the question of price, would you regard Mr. Lougheed in relation to you as a bit of a dove?

Mr. Sykes: No, sir I do not think that Mr. Lougheed is a bit of a dove; on the contrary I think he is unreasonable and intransigent.

Mr. Crombie: He is 25 per cent cheaper.

Mr. Sykes: He has refused—oh, but you are not going to be bought by that.

Mr. Crombie: Not yet.

Mr. Sykes: Because he refuses to share.

Mr. Crombie: How much are you willing to share?

Mr. Sykes: That is a matter for negotiation, Mr. Crombie.

Mr. Crombie: Thank you. I think I will emigrate.

Mr. Sykes: Mr. Crombie, can you ever remember a case where former mayors were unable to agree?

Mr. Crombie: Not at all, we could always agree.

Mr. Sykes: Exactly, and that is why we retired undefeated.

Mr. Crombie: That is right, just before they got us.

Mr. Sykes: It happens to us all if we stay there long enough.

Mr. Crombie: My two questions go towards just the end of your brief, Mr. Sykes, on page 18 you clearly indicate that you

[Page 176]

and your party are opposed to the unilateral action taken by the federal government and indeed you support it, it is one of the issues on which you agree with Premier Lougheed on, you supported in the Alberta legislature the motion to oppose the unilateral action?

Mr. Sykes: Indeed.

Mr. Crombie: And also on page 12 in this connection you indicate that it is time for a breathing space and I wonder if you have given any consideration, given the fact that you would like to have the process abandoned, the unilateral process abandoned, we need a breathing space, have you given any consideration to any alternative model for constitutional change? For example, do you think there is any good opportunity for a reestablishment of the first ministers conference or have you given consideration to the possibility of establishing a constitutional convention?

Mr. Sykes: Well, Mr. Crombie, these are hypothetical questions and I must say that I do not claim any special wisdom and experience in dealing with them.

Some years ago I discussed some of these subjects with Senator Forsey who is regarded as the outstanding constitutional expert and I concluded that many of the things that I was hearing from other sources came under the head of the complaint of an American statesman of the last century who said: it is not your ignorance I am complaining about, it is what you know that ain’t so.

I think that many of the things being said are just not so and so my position would be that, personally, I do not know of any country that has adopted a constitution, and everyone has, any country that did not have some form of a constitutional process, whether it be a referendum or whether it be a constitutional conference or whatever, and frankly I do not see how you can conduct these negotiations or these processes in a pressure cooker with a time limit without allowing the participation of interested parties. If you are going to have the interested parties participate then you must have a fairly large group. If you are going to have a fairly large group, then you must have some kind of a conference or series of conferences. If you are going to have that, then you must have time.

Those, I suggest, are the criteria: time and participation and, above all, in Canada.

Mr. Crombie: I have one final question, Mr. Chairman. You may have noticed that on page I4 the former Mayor of Calgary indicated that he does not support the position of the Albertan government that Indians are solely a federal responsibility. A very quick question that will require only a quick answer, 17 Indian and native groups have indicated that they would like to continue a situation whereby they had direct relationship with the federal government and not with the provincial government and I wonder if you had any other information which would explain that.

Mr. Sykes: Mr. Crombie, I am merely a passive observer in these respects. I was adopted by a family, by Chief Crowchild’s family as it happened, some years ago and christened

[Page 177]

and told what my responsibility was in accordance with the spirit of the departed person whose name I bear and I had a note from Chief Crowchild reminding me at Christmas time that I had these responsibilities but not telling me how to discharge them, which is fine.

I think that if you were to treat the Indians like anyone else you would have two dispossessed parties, if you like, two parties who might have lost their raison d’être, their purpose in life. One would be of course the employees of the Department of Indian Affairs who have always prevented in my experience any attempt to deal directly with people, and I do not think I would worry about them because they would not be unemployed. I have seen them for nearly 20 years at work and I believe that they could be put to good use in either the post office or Petro Canada.

The other party that would be dispossessed, or group, would of course be those radical activists who make a profession, a career of stirring up trouble both within the Indian groups and outside them, and quite frankly I shall not lose much sleep over them because I am sure that they will find some other cause.

The Joint Chairman (Senator Hays): Thank you, Mr. Crombie. I go now to Mr. Berger.

Mr. Berger: Thank you, Mr. Chairman. Good evening, Mr. Sykes. This is also my first opportunity to participate in the deliberations of this Committee and unfortunately I think that I have to take issue with a number of the items in your brief and the statements that you made this evening. Mr. Henderson touched upon some of this in his remarks.

I would like to refer you to the top of page 7 of your brief where you say that while the history of Central Canada is the history of the English and the French, the Protestants and the Catholics and the conflicts between them, that history has absolutely no relevance to Western Canada. It is not our history, you say, and ours does not in any significant respect resemble it.

I quite frankly cannot see how you can reject a major part of Canada’s history, how you can say that everything that happened in a certain part of the country or before a certain date has nothing to do with you. I could say the same, that before my parents came to this country that none of that has anything to do with me and is totally irrelevant but to my experience, but it seems to me that one has to embrace the history of the whole of the country, of all Canadians, to try to understand the origins and perceptions of all Canadians. I do not see how you can ignore the contribution of many French Canadians to the building of Western Canada, names such as Father Lacombe, Marquette, Radisson, Riel, names that are reflected in monuments, in street names, in place names throughout Western Canada, and I would like to remind you of one of the, I think, more fundamental points that was made in one of the very first pages of Pepin-Robarts Report which said that perhaps more than institutional change, that what Canadians needed was an attitude, that they had to display a spirit of generosity for other Canadians. .

[Translation]

One of the things that surprised me the most during the referendum campaign was the love that many French Que-

[Page 178]

beckers showed towards Canada. They considered themselves full Canadians and they expected their linguistic rights to be respected all over Canada.

[Text]

Again on page 7 of your brief, you note that there are a number of long established French speaking settlements in Alberta.

[Translations]

For the past years, thousands of French Quebeckers have moved to Alberta; I would like to ask you the following question: how long will they have to wait before the constitution gives them the right to educate their children in French?

Mr. Sykes: Mr. Berger, I am sorry you did not understand me. I am sorry I do not speak French fluently but you will have to excuse me because I live in Alberta and I do not have the opportunity to speak French very often.

[Text]

I think you have misunderstood my remarks and I hope that when you read this at leisure you will understand that the attitudes you have imputed to me are not within my brief and certainly not within my words nor my intentions. I have never rejected the history of Central Canada. I accept it and I recognize it but I am saying it is not the history of Western Canada and that if you wish to understand our attitudes you must look at our history and our culture. It is different. If you wish to understand the attitudes of Ontario and Quebec you must look at their history and their culture and if you wish to understand the attitudes of the Maritimes or the several regions of the Maritimes you must look at theirs.

It is a question of looking at people as people because we are not homogenized. We are not the product of a melting pot in which the identities are lost. We have preserved the identities. We have deliberately preserved them in the cultural mosaic, and the policies that led to this settlement. They were policies of the Government of Canada and they are policies that are supported today. The consequences of those policies are inevitable and they represent the society we live in, a truly multicultural one, and I must say, to put it in perspective, that there is nothing disrespectful of French Canadians and their contribution in my remarks. If there were, I would not be able to go home. The fact is that I say that in the totality, if you like, the vast massive population on the prairies, they do not amount to a large number. Of course they were there from the beginning.

As a matter of fact I have had some trouble in the past by reminding people that Calgary was founded not by the English police, as the local history books say, but by French Canadian missionaries who were put out of their cabin just before the winter when the English police arrived. But there is a custom among the English to date the establishment of any civilization from the time when the police arrived. It is not totally accurate.

[Page 179]

My point is that they are not ignored, they are recognized. They are an important part of our population, but if you are saying that they must have special guarantees in Alberta I would say that all of the other 20 or 30 racial groups would not accept that because special guarantees have no place in Alberta. They are not part of our history. Anybody can come to Alberta and settle on equal terms including the French Canadians, who are most welcome.

Mr. Berger: I would ask you again, sir, to perhaps answer the question that I put to you earlier directly and that is when will French speaking Canadians or Europeans or French speaking human beings for that matter have the constitutional guarantee in Alberta to educate their children in French?

Mr. Sykes: I hope that no racial group will ever have any special rights over any other racial group in Alberta and that I think is the attitude of most Western Canadians.

Let me tell you this, sir, that I have travelled in French speaking communities in Northwest Alberta and I have heard the regret expressed by them that the initiatives taken along the lines that you are suggesting to me have hurt them badly because they were able to enjoy the French language in their schools, in their business, in their council chambers and their local government for 70 or 80 years without interruption until the government -became so sensitive to language rights that they were told that they now have to have English as well and the English they could not afford because they cannot, in the small communities, afford translation systems. So that they then had to go to the provincial government for money to provide English translations where they were never needed before and where there was never a demand for them. Their culture, their way of life in their communities has been hurt as a result of the very attitude that you, apparently. are taking and I think it is fair to say that that is regrettable.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Berger. You are over time and I am sorry but I will have to go to Mr. Epp or we are going to wear poor Mr. Sykes out.

Mr. Crombie: Mr. Chairman, somehow I do not think so.

Mr. Epp: Mr. Chairman, thank you, I want to say to Mr. Sykes while there are a few mistakes in terms of your reading of history as I see it, and I will simply relate first of all to your prefix of Mennonites as being Russian. I think that is wrong. Number two, your date is wrong but other than that I think your brief is not that bad, in part.

I want to thank you for the rights you gave me, the special rights. We never knew we had them, but we are pleased that you have now afforded them. I know that when I look at members of the Committee opposite they are already treating me with a little more respect than I had enjoyed before.

[Page 180]

But what I want to ask you in seriousness, what I get out of your brief, there is only one part of the constitutional discussions that are a vital part I believe of Canadian life today and we might have different views around this table and also in the country but there is a very deep conviction among all of us that changes must be made and that the federation must be renewed.

Starting from that basis you agree to patriation. I agree it is a nonword but again I think that it is part of the Canadian experience. When we do not have a word we, when we do not have a process, we create it to reflect our experience, and we have done that. That is the only thing you seem to agree to, and I want to get you in a positive vein if I can.

Apart from that, what for example is an integral part of the constitution, that is how do you make a constitution vibrant, alive, to make it live that it is not inflexible, what kind of an amending formula do you see?

Mr. Sykes: I have no amending formula that I can produce. I know the struggle to find an acceptable amending formula has gone on for a long time and I suggest that it has to go on until a solution is found. That is the normal process. In other words, if you start at the beginning you must keep on until you come to the end. You cannot abort the process and put the thing into a pressure cooker and say, well, we are going to have something whether they like it or not, but they are not going to have anything to say about what it is.

Mr. Epp: I am not agreeing to the unilateral action, Mr. Sykes. What I am saying though is I believe in terms of the debate and the country it is to the advantage to all of us that those of us who are seeking the support and confidence of Canadians to put forward a view in which we say, look, here is a solution, we believe it to be a valid solution. What is the valid solution, really, the amending formula of the Social Credit Party of Alberta?

Mr. Sykes: There is no position taken by the Social Credit Party on an amending formula now. The amending formula acceptable to us is simply the one the provinces and the federal government can agree on, whatever that may be. It is their responsibility to arrive at an agreement.

I suggest, Mr. Epp, that one of your problems is that you get too much free advice. –

Mr. Epp: What you are saying then, Mr. Sykes, is that you do have an amending formula and that is unanimity until such a time as another one can be developed.

Mr. Sykes: Until such a time as another one can be developed, yes, unanimity is what has been required and recongized as required when the relationships of the provinces with the federal government and their rights were concerned, that is true.

Mr. Epp: Correct.

Mr. Sykes: That of course was part of the process when the ownership of resources was transferred.

[Page 181]

Mr. Epp: In 1930.

Mr. Sykes: Yes.

Mr. Epp: Again it was under pressure, I think you would agree, in the events of 1930.

I have one more question.

Mr. Sykes: It is reasonable to expect that there shall be some encouragement and even some pressure in these things but it is quite different to have pressure, a sense of urgency, than to have a pistol at your head.

Mr. Epp: I agree with your position on the unilateral action. I do not think there is any quibble there. The point I am trying to make is I believe it is important that political parties do have positions that people can judge them on. I have one more question and that is you have spent some time in feeling that all provincial governments and specifically yours should appear at this table. They have had other forums, but there have been events back in your own history dating back to 1935, I fortunately or otherwise do not date back that long but we have people with that kind of experience. I would like to ask Senator Tremblay, if the Committee would allow me, to, to ask that question because of personal experiences.

Senator Tremblay: May I, Mr. Chairman?

As you know in the late ’30’s there was a federal Royal Commission appointed to look at the federal/provincial relations. It was at the time Mr. Eberhart was Premier of Alberta and reading the report of that Commission I think that we could draw some lessons from that. Two provinces refused to co-operate with that federal-appointed, in other words, unilateral Commission. Alberta and Quebec.

[Translation]

The only thing I want to point out is that today’s situation where we see common points existing between Alberta and Quebec is not a fact born of the last few years but a fact that does have a history behind it. At the time of the Rowell-Sirois Commission, you had the same correspondence in the matter of unilateral acts whether it is a royal commission of inquiry or a unilateral project as the one we have before us, approximately 50 years ago you had the same correspendence.

How can one explain this phenomenon? The problem of energy or oil does not explain that. It seems to me the explanation would be that in Alberta, 50 years ago, as in Quebec, and it must be said that Alberta is one of the provinces whose rights over natural resources had hardly been recognized before 1930 or 193l, Alberta like Quebec takes a different federative approach and the solution to the Canadian problem is not to be found in what I would call a sort of sentimentality concerning language rights but the Canadian problem must be approached in a businesslike way, in a manner of speaking, and in that regard what happened in Quebec during the Quiet Revolution was not simply a question of symbols but was also a transformation which made Quebec aware of the fact that it could control its own business.

[Page 182]

I think Alberta has experienced something similar and that Alberta now has the stature to be boss of its own affairs.

If you do not mind my telling a little anecdote… when I was Deputy Minister of Education in 1964 or 1965, Blair Fraser, the great journalist of the period, came to see us in my office to ask us what the Quiet Revolution in Quebec meant. I would simply say that I gave him the following answer: [Text] it means that Quebec is ready now to talk business in any language!

[Translation]

To transpose this, what is happening in the Canadian federation is exactly that. Quiet revolutions have been made and we are now in a situation where we must talk business in any language and the challenge we must confront is that we have to harmonize regional dynamics which are now ripe for real and true dialogue between equals.

I do not have many questions to put to you except the following one: now, the kind of analysis I have just made concerning the evolution of things over a period of half a century and God knows if in this committee there are many half centuries and, for our friends on the other side, half centuries mean a parade of loggerheads. Anyway, according to the analysis I have just made, the same half century has been a period of growth and maturity which were born in different parts of the country. We do not have to find mechanisms to get out of dead ends; we must look for mechanisms which will allow us to harmonize new maturities. Does the kind of analysis I have just made correspond to the way you perceive the evolution of your own dynamics in the community where you live?

Mr. Sykes: That is rather difficult for me. I think, Senator, that you are an idealist. You tell me we now have control of our own affairs but I do not quite agree because I can say that to be an owner of goods, riches and possessions is not the same thing as accepting responsibility. That is a question of maturity.

Alberta is very rich in a certain sense and, to a certain degree, now, but that is not the same thing. The province has not accepted all the responsibilities of confederation. That is why the premier of Alberta is not here before you. He has a personal point of view which is perhaps unique.

My French is not all that perfect. I . . .

Senator Tremblay: On the contrary. That is why I am making it a point to speak French to you.

Mr. Sykes: I do have trouble speaking French.

Quite nice of you, sir!

[Text]

I think that there is certainly a maturity over a period of time and it takes time. I think the two provinces of course have progressed and

[Translation] there have always been bonds between Quebec and Alberta and even between certain cities because the twin sister city of Calgary is the City of Quebec, but some efforts do have to be made.

[Page 183]

You must make efforts, you must have contact in order to have comprehension. If the comprehension is not there in my view, as it should be, the acceptance of responsibility may well follow, if the war with the Government of Canada can be resolved.

At the moment, I would say that the position of the Alberta government is that all its efforts, all its thoughts, all its energies are concentrated on fighting this nine-year war in which it has not won a single battle, and that if it were able to devote that time and that attention to making confederation work better, to evolving. to assisting in the evolution of methods of sharing the riches of the country, then perhaps that maturity of which you are speaking would be truly so, but I think you are too kind at the moment if I understand you correctly.

And frankly, I have never fully understood Rowell Sérois in terms of application today. It seems to me that that Commission to the best of my understanding, represented an interesting starting point, but many decisions were taken after than varied the recommendations, as I understand.

The relationship, federal and provincial and for that matter, between the provinces, has been flexible and it has become a matter of habit, custom, attitude and all of these things must be brought into play if we are to have a settlement.

Unfortunately, when you are at war you worry about weapons, you worry about laws and legislation, you do not worry about attitudes and goodwill and the need to arrive at an accommodation. I do not know if I respond precisely to your question, Senator, but I hope so.

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

Mr. Mackasey.

Senator Tremblay: Thank you, Mr. Chairman.

Mr. Mackasey: Mr. Chairman, I might say to our friend, because I use “friend” when in the old days I could say “Mayor Sykes”, now I feel very self-conscious referring to you as “Mr. Sykes”. It’s quite a problem.

Mr. Sykes: Well, wait awhile.

Mr. Mackasey: But I want to say that the best part of these meetings or deliberations, at least from my point of view, usually comes at this time of evening when politicians—and that is a profession that you and I share—have a chance to exchange views and a little philosophy, seems to me the most enriching part of our hearings.

Unfortunately, our format is such that you are cut off in three or four minutes. That is ridiculous, but that is the way it evolved.

I want to say that I was grinning before; Mr. Hawkes was wondering whether it was in admiration and frankly it was, because I was remembering that you were talking at the moment about compromise and negotiations. And at the time I was Postmaster of this country, when I received a request from

[Page 184]

many Calgarians, including Senator Hays, to recognize Calgary’s, if you may recall, 100th anniversary, it must have been 1975, and I sent out the stock answer of the bureaucrats that we could not, honour every community on its 100th anniversary.

You may recall that was the first time we got to know each other very well because we did sit down and compromise, and if I recall, the compromise was, well, perhaps we would not honour Calgary, but we can certainly honour the Calgary Stampede, if you may recall. And we formed a very close friendship because of mutual interests, not the least, stamp collecting and other things. You took me to the Calgary Stampede and I was knocked down by a horse, which was hardly the hospitable thing to do.

Mr. Hawkes: By the front end, sir.

Mr. Mackasey: Yes, exactly. I did not know which way to jump. One of the few times in my life that I did not know which way to jump.

I want to say in serious vein here that I do not agree with your brief in many respects but we would not get into that. I see things a little differently. I do think we need to patriate. I do think we have to include an amending formula. I do think we have to enclose a Charter of Human Rights. You express a different point of view and I respect it, and I know you respect mine.

I also want to point out to you the possibilities of Section 33, which in effect freezes the amending formula for the next 24 months, the hope being that in that period of time we can sit down at another provincial-federal conference and come up with an amending formula that would be acceptable and suitable to all parties.

But what I want to talk to at this moment stems from the remarks of Senator Tremblay, for whom I have great respect, who made some tremendous contributions here. And what he said about the Quiet Revolution in Quebec is true. I had the privilege of being a Member of Parliament in those years and Quebec did find itself a type of confidence to deal with the central government and other provinces as equal, without any concern or inhibitions about language.

Significant at the same period of time that Senator Tremblay talks about the change in Quebec, there were changes made at this level, changes introduced, or inspired or prodded by French-speaking Canadians named Trudeau, Marchand, Pelletier and others, changes in this institution, translation we are talking about, and all the rest of them.

But what I see happening at this time in history and I think Senator Tremblay points out too, in all probability that same self-confidence is now developing in Alberta because of the economic base it is developing and in a matter of a short period of time hopefully, the growth of an economic base in Newfoundland, that the point I am getting to Rod, at the same

[Page 185]

time this is increasing the trend away from central government from a federal system.

If we are going to have strong regional governments with strong regions based on economic reasons, or confidence in our culture, as in Quebec, Alberta and the Maritimes, then surely it must follow that we have got to do something to strengthen the federal institution. Would you agree or disagree with that.

Mr. Sykes: I think that we need a strong central government; yes, Mr. Mackasey, I agree with that. I think we have always been plagued by the overlapping of responsibilities between the federal and the provincial governments and you may well remember that there were several abortive trilevel conferences when the federal government took what I consider, the perfectly proper initiative of attempting to speak directly to the large urban centres of Canada. Something that is taken for granted in almost every other country in the world. And of course, the Lougheed Government, more than any other perhaps, objected to the cities being recognized as local government in their own right.

These are part of the strains of making a system work. I regretted when Urban Affairs was disbanded, because I thought it had a role to play on the national scene, Others of course, considered it an unwarranted interference in provincial rights.

I am aware of maturity, and as I pointed out wealth and maturity are not necessarily the same things.

[Translation]

One has always problems with the newly riches.

[Text]

We have to move toward a settlement, a rapprochement slowly, because forcing the pace can cause great damage and I think we have been forcing the pace. There are issues that are extremely sensitive, for example the idea of entrenching French-language education rights in Alberta where that has never existed, which would require something like 94 per cent of the population to pay for rights for 6 per cent that the 94 per cent does not enjoy, and yet we have people across the province teaching their children German, teaching their children Ukrainian. teaching them Italian, teaching them any one of a dozen other languages; and those people are paying, either directly or personally, for that education or through a form of double taxation right now.

And they are willing to do it, because it is a contribution to maintaining that cultural mosaic which says in effect, that we can live together and the differences can be advantages.

Mr. Mackasey: I would like, to change the subject in my last question. You talked about tearing up royalty contracts.

Mr. Sykes: Yes.

Mr. Mackasey: Would you expand on that? What is the rate charged by the Provincial Government of Alberta on the oil industry, in the form of royalties today in comparison to that. I do not think Canadians in the east quite appreciate or understand that.

Mr. Sykes: Well, I shall stand corrected by Mr. Hawkes and others who know more than I and perhaps Mr. Speaker can

[Page 186]

help me, but up until 1972-73, the Government of Alberta, the Social Credit Government, had always said that it is essential to the investment climate that you know where you stand; that people who are going to invest in a high-risk enterprise, which is what exploration and development is. shall know what they will have to pay in the form of royalties for a long time into the future.

The Manning Government introduced the term of ten years, and the province established the royalty rates at I believe, 12.5 per cent of the wellhead value, 12.5 per cent which had been the rate that had prevailed virtually since the turn of the century. Now, you might call it a standard industry rate, not confined to Alberta at all. The review for the next ten years was carried out around 1970 by the Strome government and of course, in 1971, the Lougheed Conservatives defeated the Strome government—the Social Credit government—and a couple of years later, when the OPEC nations increased prices when the market price increased sharply, apparently Premier Lougheed said, “Look, at the 12.5 per cent rate of the well-head value, we are not getting enough. This industry is making so much money that a great deal of it is going to flow down to Ottawa in the form of income taxation or otherwise unless we get a bigger bucket and intercept it”.

So, at that point, he announced to the industry and the people of Alberta, to the best of my recollection, without any consultation or warning, that those contracts, that royalty commitment which had at least eight years to run, was finished with, torn up, repudiated by the Government of Alberta, and I think he raised the royalty rates from the 12.5 per cent to something of the order of 40 or 45 per cent.

Mr. Mackasey: Cutting off from the federal government what up to then had been . . .

Mr. Sykes: Cutting off the federal government’s flow of revenue to a very substantial degree. Now that of course, was the first shot fired in the battle of greed. And it had a disastrous effect on the industry, because what next happened was that the federal government retaliated in the only way it could.

It said, “All right, you can charge what you like for royalties at the provincial level, but we will not allow them to be tax deductible. They will not be offset against income for the purpose of income taxation”. And of course, that had a terrible effect on industry, because contrary to general perceptions Mr. Chairman, the oil and gas exploration and development industry in Western Canada is not half a dozen giant corporations owned somewhere else. It is literally hundreds of small and medium-sized corporations formed as risk ventures by Canadians with participation and investment from elsewhere very frequently, but formed and managed and operated in this country under our laws, by our people.

And of course, they were the people hit right between the eyes by the cut-off of deductibility which was a result of the tearing up of the contracts by Premier Lougheed. Since then, Mr. Mackasey, we have never looked back. Now it is the federal government’s turn to fire even larger shots from even larger cannon against Alberta industry.

[Page 187]

The problem is that this damage that is being done, and it is damage, is being done to our investment climate and many small businessmen and employees who are taking risks. And, of course, they are doing now what they did again in 1974, or doing again now. They are simply trying to cut their losses and move to the States where there is a need for the development of resources and they can get at least double the return for the same risk.

The Joint Chairman (Senator Hays): Thank you.

Mr. Sykes: I have more to say if you like.

Mr. Mackasey: You are saying that the first salvo was the tearing up of agreements with the industry and then an abnormally high royalty in order to prevent the federal government from having access to its traditional fields.

Mr. Sykes: That is correct.

The Joint Chairman (Senator Hays): Thank you very much Mr. Mackasey. I think we have shaken this tree pretty good tonight.

Mr. Hawkes: Mr. Chairman, the witness invited me to make comments and treated me as an expert on the subject. I would like to make just one short intervention, that given the witness perception of just price as world price, the return to Albertans on that resource today is I think, somewhat less than eight per cent of commodity value. He talked about 12.5 per cent of royalty rate and 60 per cent because of the power in the constitution of Canada for the government of Canada to regulate price interprovincially.

Some 60 per cent of that commodity value is being used for federal purposes, either directly into the treasury or in the form of price relief, so that in effect, what existed prior to the mid-seventies as a 12.5 per cent royalty is in reality based on commodity value somewhere around 8 per cent and going to decline rather rapidly over the next four years.

Mr. Sykes: I cannot correct Mr. Hawkes because the score, if you like, after action and reaction over the years has become so complex the Alberta Government has tried to assist those elements in the industry that were most economically damaged by the federal actions, by the provincial actions and we now have a complicated system of incentive and subsidy and frankly, if anybody knows where he stands, I think it is a miracle.

And as a result, of course, investment capital is leaving the country and instead of being independent in terms of oil supply in 1980, which I believe was the original target for this government, I think the prospect of 1990 is totally remote.

The Joint Chairman (Senator Hays): Thank you very much. We have been sitting now—I have been sitting in this chair for over 12 hours and think that some of the other members have been sitting here this long as well.

I would like to now thank the . . .

[Page 188]

Mr. Tremblay: Mr. Chairman.

The Joint Chairman (Senator Hays): Yes.

Mr. Tremblay: I always ask permission from you to speak. and I have observed on a few occasions that those who speak before asking permission can.

The Joint Chairman (Senator Hays): Well, that is a new rule to me; but, Senator Tremblay, if you want to ask a short question, okay.

Mr. Tremblay: It is not a question. It is a point of information.

The Joint Chairman (Senator Hays): You want to ask for information?

Mr. Tremblay: I want to transmit some information. I do not want to be involved in the politics within Alberta, but I think that most people forget that the first move in the fall of 1973 had been a federal move, establishing an export tax which they offered Alberta to divide 50-50 between the federal and Alberta, and Saskatchewan too, because Saskatchewan had some exports too—and I can speak from direct experience at the time, I was involved in that problem.

That move from the federal, which was a sort of bargaining move with Alberta and Saskatchewan. prevented any sound solution for Canadian price as opposed to the world price. At the time—and I think I am consistent with the kind of analysis I have made—the first stage of the negotiation has taken place not between the federal and the provinces, but between Alberta and Quebec.

We were a consuming province, an importing province, and we were ready in Quebec at the time to accept an increase in the Canadian price which other provinces in the same situation as Quebec did not accept. We started negotiations between provinces then and we presented something reasonable for the time. That is why at the end, the federal government removed the export division 50-50 so that we could get a Canadian price. Alberta accepted not to take the 50 per cent of the export tax.

The point I want to raise is this, that interprovincial negotiations on a fair basis in a number of situations might be a better approach than a federally-imposed export tax or anything of the kind.

That is why I am saying that our challenge is to harmonize maturities, rather than to impose any central solution.

Mr. Sykes: I agree entirely with you Senator Tremblay. I think that in effect that is our point too.

The Joint Chairman (Senator Hays): Well, on that note then . . .

Mr. Sykes: Mr. Chairman.

The Joint Chairman (Senator Hays): Yes.

Mr. Sykes: May I say how much we appreciate the courteous hearing that we have received here and how pleased I am that the Chairman has not followed the practice he followed

[Page 189]

when he was Mayor of Calgary of setting appointments for 5 o’clock in the morning.

The Joint Chairman (Senator Hays): Thank you very much Mr. Sykes. On behalf of Mr. Joyal, our Joint Chairman, and all members of the Committee, I want to thank you and Mr. Speaker for being here. You have brought out the Alberta point very, very well. We appreciate your being here and we will be mindful in our deliberations of your observations. Thank you very much.

Mr. Sykes: Thank you Senator Hays.

[Translation]

Thank you, Mr. Joyal.

[Text]

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

The Joint Chairman (Senator Hays): Tomorrow morning we have Dr. La Forest who will be here at 9:30 in the morning. And we have a good full day for you. The last meeting will be at 9 o’clock.

The meeting is now adjourned.

[Page A:1]

APPENDIX “CCC-10”

[Page A:2]

[Page A:3]

INTRODUCTION

Events of recent years — the growing sense of frustration felt by many Canadians in all provinces, the emergence of a new West and the election of a separatist government in Quebec — have created the need for a reassessment of the Canadian federal system. In legislatures across the country, in conferences and conventions, during proceedings of task forces and committees, the nature of a new federation has been debated and analyzed. This Position Paper is intended to contribute to this process.

The provincial governments of Canada, together with the federal government, will soon embark on a series of constitutional discussions which are intended to lead to the adoption of significant changes to the British North America Act. The Government of Alberta will participate fully in the discussions and will assess seriously all constructive proposals for change. Suggestions for constitutional change have been and will continue to be forthcoming from a variety of sources: from provincial governments, acting jointly and individually; from the federal government; and from various non-governmental committees and task forces. The many proposals must be given thorough consideration with a view to determining their value in promoting national unity and contributing to a more effective operation of our federal system in the future.

It is becoming increasingly evident that maintaining the status quo is not acceptable to the majority of Canadians. Following the 1977 Western Premiers’ Conference, a communique was issued by the Premiers which stated:

The Western Premiers reject both the “status quo” and Quebec independence followed by an economic association with Canada, the so called sovereignty association option, considering neither to be a viable alternative for solving the problems currently confronting the federal system.

In Quebec, the debate fluctuates between support for an independent Quebec and for a “rearranged” federal system. Canadians in other parts of Canada also have expressed dissatisfaction with the current operation of the federal system. It is vital, in the interests of all Canadians, to forge a new federalism and a new national consensus.

This Paper is one means by which the Alberta Government is addressing the challenge facing all Canadians. Recognizing that there are no easy solutions to Canada’s problems, we invite the Members of the Legislative Assembly, Albertans and all Canadians to give careful consideration to these proposals. Several fundamental principles have been identified which have been and should continue to be the basis of our nation. In addition, specific proposals upon which a new federal system can be developed have been outlined. While the Paper examines a number of important constitutional questions which have risen to date, it by no means covers all of them.

[Page A:4]

In 1867, the Fathers of Confederation recognized that the union of the provinces into a nation called Canada could be achieved only through the development of a system of government which combines the principles of parliamentary government with those of federalism. This intent is clearly illustrated in the Preamble of the British North America Act, which states:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar to Principle to that of the United Kingdom . . . .

The maintenance of both a parliamentary system and a federal system of government remain prerequisites for the future of a united Canada.

In any new arrangement, several fundamental principles must be preserved and fully respected:

— responsible parliamentary government must be the basis of our system of government;

— the principles of constitutional monarchy must be maintained;

— all provinces have equal constitutional and legal status within Confederation;

— strong provinces make a strong, viable Canada, complementing the role of a strong federal government;

— within their respective spheres of jurisdiction, the two orders of government — federal and provincial — are equal, neither being subordinate to the other;

— each of the two orders of government must respect the responsibilities and jurisdictions of the other.

These are the major premises upon which Alberta will enter into the forthcoming constitutional discussions.

II THE PROCESS OF CONSTITUTIONAL REFORM

Recommendations:

The Alberta Government recommends:

1. that the proposed changes to the Constitution be considered as a package, and not be compartmentalized;

3. that no changes to the Constitution which affect federal-provincial relations or which affect the provinces be adopt-

[Page A:5]

ed without the concurrence of the eleven governments of Canada and Parliament and the Provincial Legislatures.

A constitution establishes the basic ground rules by which a country is governed. Constitutions do not and cannot operate by themselves. It takes people to make them work. Over time the basic framework or structure of government outlined in the constitution is transformed as the political system develops. The evolution of the Canadian Constitution is no exception to this general observation. The operation of the Constitution of today is vastly different from that of 1867. One should not be deluded into thinking that any revised constitution will not be subject to this process of evolution. Canada has undergone the transformation from primarily a rural and agricultural country to a diversified economy, and has weathered the storms caused by war and depression. New issues of public policy have emerged, such as social services, health care and the environment. As governments have dealt with these and other issues, new stresses and strains have been created within Confederation. To date, the federal system has managed to respond to these pressures. We must ensure that any changes to our Constitution do not hamper the evolutionary process as the political system meets future changes and needs.

Throughout our history, our constitutional framework has provided the flexibility necessary to accommodate change. On balance, the system has been highly stable, a condition which is vital to the preservation of society. The present method of amending certain sections of the British North America Act through ‘a joint address of both houses of Parliament after securing the unanimous consent of provincial governments is an established practice and has become part of the constitutional fabric of Canada, In short, the existing Constitution has proven to be a remarkably resilient instrument, one which, if not venerated, deserves respect.

This is not to say that improvements to the British North America Act are not desirable or necessary, it is merely a recognition of its remarkable flexibility which has allowed Canada to meet the challenge of a changing world with confidence and vigour. It is thus imperative that any amendments to the British North America Act he adopted only after considerable thought and deliberation; we must be sure that any changes will significantly improve the system of government in Canada. Change simply for the sake of change has no place in the process of altering the provisions of the Constitution.

In light of the pivotal role of the Constitution within Canada, the process of constitutional change takes on considerable significance. In Alberta’s view, this process cannot be divided into phases. The British North America Act was drafted as a comprehensive entity and a general revision requires study of and possible modification to the entire instrument.

If the process is to be a meaningful one, the overall impact of proposed constitutional changes must be considered. Furthermore, given the importance of any changes to the fundamental law of a nation, the participants cannot be constrained

[Page A:6]

by an unrealistic time table. Finally, if this exercise is to be successful and credible, any changes must receive the unanimous support of the participants—the eleven governments of Canada—and must also receive the support of Parliament and the ten provincial legislatures,

III THE DIVISION OF POWERS

Recommendations:

The Alberta Government recommends:

4. that modifications to the division of powers he recognized as the key to achieving a new federalism for Canada; and

5. that the division of powers be discussed concurrently with other constitutional questions, such as federal institutions.

The division of powers is the critical element of a federal system of government. The particular division of powers in our federation must reflect the desire on the part of the people to have certain responsibilities entrusted to a federal government with others entrusted to provincial governments. The federal government should be endowed with sufficient powers to foster a national identity, ensure national security, and promote national economic well-being. Because the federation is predicated on diversity, the provinces must possess the powers necessary to meet their individual cultural, social and economic needs. Since the division of powers is so critical to the success or failure of a federation, each federation will approach the issue in its own unique way.

In Canada, the legislative powers listed in the constitution are contained in three categories:

—exclusive powers of Parliament;

—exclusive powers of the provincial Legislatures;

—Concurrent powers.

Concurrent powers are those areas of jurisdiction for which both levels of government have responsibility. In the event of conflict between legislation of the two orders of government, a provision as to which government’s legislation prevails, a paramountcy provision, is usually included.

The division of legislative powers is found primarily in sections 91-95 of the British North America Act. Section 91 sets out the exclusive powers of Parliament; Section 92, the exclusive powers of the provinces. Section 93 assigns to the provincial legislatures the exclusive right to make laws relating to education. Section 94A permits Parliament to make laws governing old age pensions and supplementary benefits; however, the provinces retain the right to enact laws in these areas. Finally, Section 95 provides for Parliament and the provincial legislatures to have concurrent powers of legislation in the areas of agriculture and immigration. In addition to the provincial legislative powers provided for in Sections 92, 93, 94A and 95, other proprietary interests of the provinces are outlined in Sections 109 and 117.

[Page A:7]

Section 109 provides for provincial ownership and control over all lands, mines, minerals and royalties. The revenue derived from these resources became an important means whereby provinces could fulfill in part their fiscal responsibilities. Thus, Section 109 is one of the fundamental cornerstones of Confederation. It was under the guidance of the provincial governments that the nation’s natural resources were developed to the benefit of all Canadians.

Section 117 provides for the retention of provincial public property “not otherwise disposed of in the Act”, subject to the right of Canada to assume lands for fortifications or for purposes of defence.

Although the division of powers in the British North America Act has served Canada well by providing a strong foundation for our federal system, a number of changes to the division of powers are required to meet the needs of Canadians today.

A. PROVINCIAL OWNERSHIP AND CONTROL OVER NATURAL RESOURCES

i) Resource Ownership and Control

Recommendation:

The Alberta Government recommends:

6. that the existing sections in the British North America Act protecting provincial ownership and control of natural resources be strengthened.

When Section 109 of the British North America Act was drafted, it assigned to the original provinces ownership of and control over lands, mines, minerals and royalties. The Natural Resources Transfer Agreement, 1930, pursuant to the British North America Act, 1930, transferred ownership of resources from the federal government to Alberta, Saskatchewan and Manitoba, placing these provinces in the same position regarding natural resources ownership as the original provinces. For the provinces resource ownership and control has been an important and crucial factor in the development of their economies.

At the 1977 Annual Premiers’ Conference in St. Andrew’s, New Brunswick:

The premiers reaffirmed the primacy of provincial control over natural resources and stressed their fundamental importance to provincial economic development as a means of realizing the diverse regional, social and economic aspirations of Canadians. In this respect, the Premiers expressed frustration over certain recent federal activities that have thwarted, and thereby denied, provincial primacy over the ownership and management of natural resources. Examples of such federal moves include the non-deductibility of provincial royalties for federal income tax purposes, and direct involvement by the Government of Canada in litigation at the lower court level challenging the constitutional validity

[Page A:8]

of provincial resource legislation under the guise of the trade and commerce power in the Constitution.

The Premiers were of the view that provincial primacy over resource ownership and development called for a commitment by the Federal Government to harmonize its existing and future national policies in order to make them compatible with provincial natural resource development strategies.

At the Annual Premiers’ Conference in Regina in August, 1978, the ten provinces unanimously agreed that one element of constitutional change must be “the confirmation and strengthening of provincial powers with respect to natural resources.”

In particular, it should be clearly recognized that provincial jurisdiction over natural resources in 1867 was meant to be comprehensive. It was not intended that federal powers over trade and commerce be so interpreted as to render ineffective provincial jurisdiction and control over their natural resources. Recent Supreme Court of Canada decisions have created uncertainty as to provincial jurisdiction in this area. Consequently, Alberta believes that the original intention of the present Constitution must be reaffirmed and clarified.

ii) Resource Taxation

Recommendation:

The Alberta Government recommends:

7. that the Constitution be clarified in order to re-affirm the provinces’ authority to tax and to collect royalties from the sale and management of their natural resources.

During their 1976 review of the Constitution, the ten Premiers unanimously agreed that “a strengthening of jurisdiction of provincial governments of taxation in the areas of primary production from lands, mines, minerals and forests” was essential. This sentiment had previously been expressed during the 1974 Annual Premiers’ Conference in Toronto, when “the provincial leaders unanimously and strongly reaffirmed their responsibility for mining taxes and oil and gas royalties derived from provincial ownership of resources.”

Recent decisions by the Supreme Court of Canada have caused uncertainty regarding provincial jurisdiction in the areas of taxation and royalties from the sale and management of their natural resources. Reaffirmation of provincial jurisdiction over resource control and management is essential.

iii) Offshore Mineral Resources

Recommendation:

The Alberta Government recommends:

[Page A:9]

8. that provincial jurisdiction be established over offshore minerals.

The Government of Alberta supports the position of some coastal provinces that provincial jurisdiction over ownership, control and management of natural resources be extended to off-shore minerals. In addition to being consistent with the provisions of Section 109 of the British North America Act, the implementation of this recommendation will assist in redressing economic imbalances within Confederation.

B. TAXING POWERS

Recommendation:

The Alberta Government recommends:

9. that the provinces be given access both to direct and indirect taxes, with the exception of customs and import duties.

One of the problems in a federal system is to ensure an appropriate balance between the fiscal needs and the fiscal capacities of the two orders of government. Under Section 91(3) of the British North America Act, the federal government may raise money “by any mode or system of taxation”. Section 92(2) empowers the provincial governments to impose direct taxes within their boundaries “in order to the raising of a revenue for provincial purposes”. Section 92(9) empowers the provinces to collect “shop, saloon, tavern, auctioneer, and other licences in order to the raising of a revenue for provincial, local or municipal purposes”.

In recent years, it has become evident that it is difficult to distinguish clearly between “direct” and “indirect” taxes, and that the classical definitions of “direct” and “indirect” taxation, as evolved in the late 19th Century, are no longer appropriate. The development of the tax system over the past one hundred years has blurred the original distinction between direct and indirect taxes. Provinces have levied what they have believed to be direct taxes, only to find that the legitimacy of these taxes has been challenged before the courts. To avoid any further disputes, it is essential that the Constitution give authority to provincial governments to collect both direct and indirect taxes.

C. INTERNATIONAL RELATIONS Recommendation:

The Alberta Government recommends:

10. that the Constitution include provisions that confirm the established legitimate role of the provinces in certain areas of international relations.

Section 132 of the British North America Act, which deals with treaties, is the only constitutional provision relating to the fulfillment of Canada’s international obligations. The Section reads:

[Page A:10]

132. The Parliament and Government of Canada shall have all powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards foreign countries, arising under Treaties between the Empire and such Foreign Countries.

Canada’s accession to full sovereignty in international affairs was established by the Statute of Westminster, 1931. Since there was no clear definition of the treaty power accompanying Canada’s independent international status, the responsibility of defining the nature and characteristics of the treaty power was left to the judiciary, working without the benefit of a clear constitutional provision for the settling of jurisdictional questions relating to international relations.

The practices which have emerged over the past forty-five years may be summarized as follows:

—legislation is required for the implementation of all treaties;

—where the subject matter falls wholly within areas of provincial responsibility or jurisdiction, provincial legislation is necessary;

—where the subject matter falls partially within areas of provincial jurisdiction, federal and provincial legislation is necessary;

—where the subject matter falls wholly within areas of federal jurisdiction, federal legislation is required;

—the federal government may sign “umbrella agreements” with foreign powers which validate subsequent agreements signed directly between that foreign state and a provincial government.

While it is generally accepted that the development of foreign policy and the conduct of international relations is the responsibility of the federal government, it is also important to realize that the provinces have concerns in certain areas of international affairs. Provincial interests arise from a number of factors, including responsibilities in developing their economies, ownership of natural resources and transborder relations with the states of the United States.

At the 1977 Premiers’ Conference in St. Andrews’, New Brunswick, the Provinces unanimously stated that:

While recognizing the primacy of the role of the federal government in international trade relations, the Premiers were of the opinion that the provinces also have legitimate interests and concerns in the .international arena. Given these legitimate concerns and the large volume of Canadian trade with the United States, they agreed that it is entirely appropriate for the provinces to assume a more prominent role in Canada—U.S. relations. They noted that this increased role for provinces was supported by the recent Report of the Canadian Senate’s Standing Committee on Foreign Affairs which stated that:

There needs to be. . . a new awareness at the federal level that a national foreign policy properly includes both federal and provincial activities, not merely federal mat-

[Page A:11]

ters. There needs to be more openness by federal departments and agencies regarding the overall direction of Canadian policy towards the U.S. and a greater degree of solicitation by Ottawa of provincial views.

The importance of the U.S. market is such as to suggest that in addition to multilateral negotiations, Canada has also much to gain from bilateral trade negotiations with the United States. This will require close co-operation and liaison between both the federal and provincial governments, since it is only through such joint efforts that provincial, as well as federal, needs and priorities can be adequately reflected.

Recently, there has been recognition by the federal government that there is a federal-provincial perspective on external affairs. A revised constitution should include provisions relating to international affairs and should recognize the need for provincial involvement in those areas of foreign affairs of concern to them.

D. COMMUNICATIONS

Recommendation:

The Alberta Government recommends:

11. that communications be included as a concurrent power in the Constitution.

In 1867, communications services available to Canadians were limited to the post and to the telegraph. The postal service and interprovincial and international telegraph services were assigned to the federal government under Section 91(5) and 92(10)(a) of the British North America Act.

The rapid expansion of the communications industry since that time has necessitated an assessment of this area of jurisdiction between the federal and provincial governments. That the provinces have legitimate interests in the field of communications, particularly in the area of cable television, has been recognized by the federal government. The federal Minister of Communications has indicated a willingness to pursue the possibility of arriving at an acceptable formula for the delegation of administrative responsibility in the area of cable television. What is required is a constitutional recognition of the provincial interests in communications.

E. FISHERIES

Recommendation:

The Alberta Government recommends:

12. that sea coast and inland fisheries be a concurrent power in the Constitution, with provincial paramountcy.

One of the most important renewable resource industries found in Atlantic Canada and in British Columbia is fisheries. The importance of this industry to the economies of the Province of British Columbia and to the provinces of Atlantic Canada requires constitutional recognition of the need for greater provincial control over this resource.

[Page A:12]

F. TRANSPORTATION

Recommendation:

The Alberta Government recommends:

13. that provincial jurisdiction over certain aspects of transportation be strengthened by including transportation as a concurrent power.

As the four western provinces noted at the Western Economic Opportunities Conference in Calgary in July, 1973, transportation policy is a major issue of immense importance to the provinces. In a country as large and geographically diverse as Canada, it is an essential tool for regional economic development. However, in the Western and Atlantic Provinces, inequities in rail rates, pricing policies, and the availability of competitive services and facilities have long provided an obstacle to economic development and diversification. Therefore, Alberta believes that, to ensure balanced regional development in Canada, an expanded provincial involvement in transportation is necessary.

G. CULTURE

Recommendation:

The Alberta Government recommends:

14. that culture be included in the Constitution as a concurrent power, with provincial paramountcy.

The encouragement of cultural pursuits is an important part of the development of any society. The expression of our unique culture through the arts, literature and the preservation of our diverse heritage is a vital part of our society’s fabric.

Our federation is predicated on diversity; nowhere is this fact more clearly evident than in the area of culture. It is vital that our cultural diversity be recognized in the Constitution.

IV A CONSTITUTIONAL COURT FOR CANADA

Recommendation:

The Alberta Government recommends:

15. that a representative constitutional court he established to resolve constitutional issues.

One of the most important functions of the courts in a federation is the interpretation of the constitution. Currently in Canada, the Supreme Court, in addition to being the final court of appeal, is also the final arbiter of constitutional issues or questions. Since interpretation of the constitution may have an impact upon the division of constitutional responsibilities and jurisdiction assigned to the federal and provincial governe-

[Page A:13]

ment, it is important that the court which interprets constitutional provisions be clearly seen to reflect the federal nature of the country. It must be cognizant of not only the views of the federal government but also of the provincial governments.

It is the view of the Government of Alberta that the function of arbiter of constitutional issues would best be carried out through a special constitutional court which is completely separate from the Supreme Court of Canada and which is representative of all parts of the country. Such a constitutional court could be set up in a number of ways. Alberta proposes that one such way would be to appoint a constitutional court from a previously agreed upon panel of experienced superior court judges, who reside in communities across the country,

The constitutional court panel could consist of approximately forty to fifty members. The panel members would be selected on a basis which reflects the population distribution among the ten provinces. Each provincial government would submit a list of judges to the federal government exceeding the number of panel members to be selected from that province. The federal government would then select the judges for the constitutional panel from among the list of names proposed by a provincial government. As such, federal participation in the appointment process is provided for when Ottwa initially appoints judges to the superior courts of the provinces, and in the final selection of panel members from among those nominated by provincial governments. Provincial participatio is provided for in the nomination of judges for consideration by the federal government.

Such a system of checks and balances would assure a high degree of co-operation between the provincial and federal governments in the appointment of a constitutional court for Canada. If, in the event that under a revised constitution, provincial governments participate in the selection of justices of provincial superior courts, provincial participation in the selection of members of the constitutional panel would in no way be reduced.

A constitutional court consisting of seven members selected at random from amongst all members of the panel would be convened to hear questions or cases of a constitutional nature. Having heard the case, those seven members would not be eligible to hear another case until all other members have participated in a constitutional case. In the event that a member selected for a constitutional court had ruled on that particular case in a lower court, he or she would be ineligible to review the constitutional question.

Reference cases on constitutional questions from either the federal government or provincial governments would automatically be sent to the constitutional court for its consideration. Any party or intervenor in an appeal case before the Supreme Court of Canada involving a constitutional matter may apply to that Court for an order referring the case to the constitutional court. If the Supreme Court finds that there is indeed a constitutional element, it would refer the case to the constitutional court. The constitutional court would meet to decide on the constitutional question, and, upon the completion of this task, the case would be returned to the Supreme Court for rulings on other questions of law.

[Page A:14]

V REGULATORY BOARDS AND AGENCIES

Recommendation:

The Alberta Government recommends:

16. that forty percent of the members of designated national boards and agencies be appointed by the provinces.

The federal government has established a number of boards, commissions and agencies to regulate various critical sectors of the economy. Each of these bodies has been created for a particular purpose and has been given different range of powers and responsibilities. These bodies have been created in order to remove these regulatory functions from the day-to-day control of the federal government. The composition, size and powers of each board, the tenure and removal of members, the relationship to the Minister and to parliament vary according to the circumstances and the degree of independence and accountability that Parliament decides is appropriate.

It cannot be denied that decisions made by the Canadian Transport Commission, the national Energy Board, the Canadian Radio and Television Commission, and the Canadian Wheat Board have extremely important consequences for provincial governments. In view of the profound effect the decisions made by these bodies have on provincial policies and priorities, particularly by those boards and agencies which deal with matters affecting key economic sectors in the provinces, provision should be made for provincial input into the membership of these bodies.

Alberta would recommend that forty percent of the members of designated boards be appointed by the provinces. The representatives appointed by provincial governments would be completely independent and would reflect provincial perspectives. They would not be delegates. Provincial input into these federal regulatory bodies would provide important benefits to the nation by bringing the different perspectives to bear on their deliberations. The Conference of Premiers would be requested to work out a system of appointments to these boards. This process would ensure that the perspectives of the ten provincial governments are taken into account.

VI CONSTITUTIONAL PROVISIONS AFFECTING THE EQUAL STATUS OF THE FEDERAL AND PROVINCIAL GOVERNMENTS WITHIN THEIR RESPECTIVE SPHERES OF JURISDICTION

The British North America Act contains certain provisions which affect the very nature of our federal system. Some of these provisions have outgrown their usefulness; others must be modified in order to assure that the essential principles of federalism are protected.

A. THE POWERS OF DISALLOWANCE AND RESERVATION Recommendation:

The Alberta Government recommends:

[Page A:15]

17. that the powers of reservation and disallowance be repealed.

Disallowance—Under the terms of the British North America Act, the Governor General in Council may disallow provincial legislation by an order-in-council within one year of receipt of the provincial legislation by the federal government. While the power of disallowance has fallen into disuse, the clause remains in the constitution.

Reservation—Under the terms of the British North America Act, the Lieutenant-Governor of a province may “reserve” a provincial bill for the consideration of the Governor General in Council. The Governor General in Council may refuse consent to the bill, thus preventing it from becoming law.

The members of provincial legislatures, as elected representatives, should not be sujected to these quasi-colonial provisions.

B. THE DECLARATORY POWER

Recommendation:

The Alberta Government recommends:

18. that the power of the federal government to declare a work situated within a province’s borders to be for the general advantage of Canada or for two or more of the provinces should be used only after the concurrence of the province in which the work is situated.

Section 92(10) of the British North America Act assigns to the provinces exclusive powers over “local works and undertakings, other than such as are of the following classes:

a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:

(2) Lines of Steam Ships between the Province and any British or Foreign Country;

c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.”

The federal declaratory power is found in Section 92(10)(c) of the British North America Act.

The power of the federal government to declare a work for the general advantage of Canada or for the advantage of two or more of the provinces may be used by the federal government to assume control over major industries in any province or over certain natural resources. For example, the federal government exercised the declaratory power to bring uranium under the jurisdiction of the federal government. The Courts declared in 1925 that “Parliament is the sole judge of the advisability of making a declaration as a matter of policy” and that “the policy or the reason for the declaration is a matter for the consideration of Parliament alone”. The determination of whether such a move is in “the national interest” is left up to Parliament.

[Page A:16]

In a general way, the use of this power may have a significant negative impact on a province’s ability to determine economic priorities. To prevent any erosion of provincial jurisdiction, Parliament’s use of this power to declare a work situated within a province’s borders to be for the general advantage of the nation should be used only after the concurrence of that province.

C. THE EMERGENCY POWER

Recommendation:

The Alberta Government recommends:

19. that the federal emergency power be limited so as to ensure that the federal government and Parliament cannot assume responsibility over a broad range of matters not listed within the enumerated heads of Section 91.

Under Section 91 of the British North America Act, Parliament is empowered “to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces”. This power is known as the “General Power of Parliament”.

Through judicial interpretation of the Constitution, the “peace, order and good government” clause has been given two meanings. One of these areas of application is when an “emergency” requires the federal government to assume special powers. The other area of application refers to the residual powers.

In the event of an “emergency”, the federal government assumes temporary powers. Traditionally, the “emergency” power became applicable in times of war, More recently, however, it was used to uphold the federal Anti-Inflation Act.

The emergency power should be limited to ensure that the federal government will not assume responsibility over a broad range of matters that are not within its constitutional jurisdiction as set out in the enumerated heads of Section 91 of the British North America Act. The possibility of this situation occurring is intensified where the emergency power has been given greater scope and where a doctrine of “national interest” may be substituted for “emergency”.

D. SPENDING POWER

Recommendation:

The Alberta Government recommends:

20. that limits be placed on Par1iament’s ability to spend in areas of provincial jurisdiction.

The term “spending power” has developed a specific constitutional meaning in Canada. It is defined in a federal government paper entitled Federal-Provincial Programs and the Spending Power of the Parliament of Canada, 1969, as “the power of Parliament to make payments to people or institutions or governments for purposes on which it (Parliament) does not necessarily have the power to legislate”. According to the federal paper, the Constitution as it has been interpreted

[Page A:17]

by the courts, gives Parliament the power to spend on any object, providing that the legislation authorizing the expenditure does not amount to a regulatory scheme falling within provincial powers. The legal basis of this “power”, it is argued, is found in Section 91(3) which provides that Parliament may raise money by “any Mode or System of Taxation”, and by Section 91.1(A) which gives Parliament the right to make laws with respect to public debt and property.

The spending power of Parliament has been used to implement shared cost or conditional grant programs in those areas of provincial jurisdiction which Parliament considers to have a national dimension. Programs for health and hospital insurance and post-secondary education are examples of the way in which the federal government has used its spending power. The provision of federal monies in areas of provincial jurisdiction or responsibility tends to distort provincial priorities and programs.

Moreover, federal funds for a major project in one year may not be continued in following years. The August-September, 1978 federal budget reductions are indicative of how these programs can be modified unilaterally, The withdrawal of funds by the federal government once a program is established may result in provincial governments having to “Fill the gap”, thus interfering with provincial budgetary planning. For these reasons. it is necessary that the power of Parliament to spend in areas of provincial jurisdiction be somehow controlled. While the implementation of Established Programs Financing in 1977 represents a significant step in this direction, constitutional limitations would provide a greater guarantee.

VII DELEGATION OF POWERS

Recommendations:

The Alberta Government recommends:

21. that the concept of concurrent jurisdiction be expanded through a provision in the Constitution for the delegation of powers between the federal and provincial governments; and

22. that before a delegation of powers is effected, the federal government and the province(s) affected concur.

While there must be an element of rigidity in a constitution to provide stability and continuity, it is necessary that a constitution be sufficiently flexible to provide for change. Greater flexibility than is currently provided for in the British North America Act may be achieved through a provision for the delegation of powers from one order of government to another.

Most of the federations established after the Second World War have included in their constitutions, provisions for the delegation of powers to enable the transfer of authority to meet a particular situation and to reduce the necessity for a duplication of administrative services. Care has been taken, in these constitutions. to preserve the equal status of both orders

[Page A:18]

of government by requiring the consent of, or financial compensation to, the governments to which the power is delegated. The delegating government also retains the power to revoke such authority. Some constitutions provide for the delegation of powers in both directions; others provide for it only from one order of government to the other. In addition, some constitutions provide for the delegation of powers on an individual basis while others allow for it only with the consent of a certain percentage of the constituent units.

The Rowell-Sirois Report of 1940 recommended that a provision for delegation be added to the Canadian Constitution. During the constitutional discussions on the amending formula which took place in 1960-61 and in 1964, governments also addressed the question of the delegation of powers. They agreed that such a clause should be included in the Constitution. A delegation clause would give an element of flexibility to the Constitution. If a question of delegation arose, it would be up to each government to determine whether it wished to opt in or opt out. Consequently, the decision as to whether a particular responsibility should or should not be delegated would be at the discretion of each government.

VIII FEDERAL-PROVINCIAL CONSULTATION

Recommendation:

The Alberta Government recommends:

23. that provision be made in the Constitution for an annual meeting of First Ministers.

The growing importance of consultation and co-operation between the federal and provincial governments in policy and program development is due to the recognition of the potential impact that the policies and programs of one government may have on another. The increased interaction between the two orders of government is becoming so extensive that consultation must become more formalized as part of the process of policy-making in Canada. Federal-provincial consultation is part of the constitutional fabric of Canada, and should be so recognized. The developing practice of having “open” First Ministers’ Conferences should be continued.

At the 1976 First Ministers’ Conference, Premier Lougheed, on behalf of the Alberta Government, presented the following suggestions:

We believe that a new phase in the development of federal-provincial relations is now necessary.

The post-war era of federal-provincial relations has been described as the cooperative era of federal-provincial relations. A new direction for the federal system is essential if Canada is to meet the challenges of the future.

It is increasingly necessary for governments to consider a common approach to national economic challenges. The discussion and development of shared-cost programs is only one aspect of national economic budgetary policies. At the same time, however, we believe that more discussion is needed in the area of economic and fiscal federalism.

[Page A:19]

We submit that most major Canadian economic and fiscal policies should be by consensus among the majority of the provinces and the federal government. The combined impact of the fiscal policies of a majority of provinces is too substantial to be ignored any longer. No coherent fiscal and economic policy for Canada can be developed if decisions of the 11 governments continue, to be uncoordinated. It is improbable that a unanimous agreement would occur, but consensus between the majority provincial view and the federal government would have positive benefits.

This “partnership approach” to fiscal decision-making in Canada would commence with perhaps an annual meeting of First Ministers to discuss and decide on the main thrust of economic policy through the coming year. It would then be up to each individual province and the federal government to decide the specific mix of taxing and spending policies to fit within the general consensus.

This new kind of cooperative federalism would, in our view, enable governments at both levels to make better budgetary decisions for our citizens. It would reflect the interdependence of all parts of Canada and would safeguard the partnership principle of Confederation.

This idea was endorsed by the Premiers at the 1976 Annual Premiers’ Conference in Edmonton:

the Premiers agreed that they should meet annually with the Prime Minister to discuss and plan a national fiscal and economic policy. It was recognized that the combined impact of the fiscal policies of the provinces has a significant impact on the country and its regions. it was emphasized that a co-ordinated approach to meet national economic concerns was essential if the challenges of the future were to be successfully met. In short, the time has now come to recognize this practice in the Constitution.

IX THE AMENDING FORMULA

Recommendations:

The Alberta Government recommends:

24. that an amending formula must reflect the principle that all provinces have equal constitutional status; and

25. that an amending formula reflect the principle that existing rights, proprietary interests and jurisdiction of a province cannot be diminished without the consent of that province.

Under Section 91(1) of the British North America Act, the Parliament of Canada. is authorized to make amendments to the Canadian Constitution, with the following exceptions:

1) classes of subjects assigned exclusively to the legislatures of the provinces;

2) the rights or privileges granted or secured to the legislature or the government of a province;

[Page A:20]

3) the rights or privileges granted or secured to any class of persons with respect to schools;

4) the use of the English or French language;

5) requirements that there shall be a session of Parliament at least once a year and that no House of Commons shall continue for more than five years.

The provinces, under Section 92(1), have the power to amend their respective constitutions. with the exception of the provisions respecting the Office of the Lieutenant Governor.

Because of the exceptions listed above, a significant number of constitutional provisions cannot be amended by any Canadian legislative authority. Over time, a number of important principles have been developed and can now be regarded as precedents which guide the amendment of the British North America Act in these excepted areas. In instances where amendments affect federal-provincial relationships, the practice has emerged that the federal government will first secure the consent of the provinces before proceeding with an amendment. The unanimous consent of the provinces was secured in 1940, with respect to Unemployment Insurance; in 1951, with respect to Old Age Pensions; in 1960, with respect to the retirement age of Supreme Court judges; and in 1964, with respect to supplementary benefits to Old Age Pensions.

This principle of provincial consent was recognized by the Western Premiers at their 1978 Conference in Yorkton, when they stated that:

Constitutional practice and precedents over the past 111 years clearly establish that the Federal Government must seek and obtain the unanimous consent of all the provinces on proposed constitutional amendments affecting the powers of provincial legislatures.

In 1976, the Government of Alberta expressed its views on constitutional amendment first to the other provincial governments and then to the federal government. In the October 14, 1976 letter from Premier Lougheed to Prime Minister Trudeau, the Alberta position was outlined as follows:

Alberta held to the view that a constitutional amending formula should not permit an amendment that would take away rights, proprietary interests and jurisdiction from any province without the concurrence of that province. In this regard, Alberta was referring to matters arising under Sections 92, 93 and 109 of the British North America Act.

This general position was debated in the Legislative Assembly in November, 1976. On November 4, the following resolution was passed:

Be it resolved that the Legislative Assembly of Alberta, while supporting the objective of patriation of the Canadian Constitution, re-affirm the fundamental principle of Confederation that all provinces have equal rights within Confederation and hence direct the government that it should not agree to any revised amending formula for the Constitu-

[Page A:21]

tion which could allow any existing rights, proprietary interests or jurisdiction to be taken away from any province without the specific concurrence of that province, and that it should refuse to give its support to any patriation prior to obtaining the unanimous consent of all provinces for a proper amending formula.

The resolution is based upon two very important principles of federalism:

—that all provinces have equal constitutional status; and

—that, with respect to the rights, proprietary interests and jurisdiction of the provinces, neither the federal government nor any other province can determine any particular province’s constitutional status.

Any debate on the amending formula must take into account these very important principles.

Recently, it has been suggested that a possible amending procedure to the Constitution incorporate or make use of referenda. It is the position of the Government of Alberta that amendments to the Constitution are more appropriately secured through legislative action than through the use of referenda. The Government of Alberta does not support the view that, within the Canadian parliamentary system, the use of referenda is appropriate in constitutional matters. The use of referenda undermines the legitimacy of elected legislatures.

X REGIONAL DISPARITIES

Recommendations:

The Alberta Government recommends:

26. that the objective of reducing regional disparities be recognized in the Constitution; and

27. that the principle of equalization be recognized in the Constitution.

Most Canadians recognize that one of the foremost purposes of Confederation has been to ensure that disparities between the provinces in terms of the well-being of citizens and in terms of the availability of economic, social and cultural opportunities be reduced. The principle of reduction of regional disparities is to strengthen and encourage the less well-developed parts of the country through various programs and policies. However, the development of these policies should not be such as to weaken the development or economic status of the other parts of the country. In the long run, the alleviation of regional disparities must lie in creating new wealth and new strengths in disadvantaged areas.

The Government of Alberta is on record as supporting the principle of equalization through the use of the unconditional transfer of funds to provincial governments. We continue to support this principle. The Alberta Government believes that this is one of the most equitable methods of maintaining the economic well-being of all Canadians. However, in developing its redistributive economic policies through modifications to the tax system, the federal government must ensure that

[Page A:22]

residents of any one province be treated in the same manner as residents of any other province.

XI ENTRENCHMENT OF LANGUAGE RIGHTS

Recommendation:

The Alberta Government recommends:

28. that the constitution recognize English and French as the official languages of Canada.

The British North America Act does not establish any official languages for Canada. The only substantive provision regarding languages is Section 133, which reads:

Either the English or the French Language may be used by any Person in the Debates of the House of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislatures of Quebec shall be printed and published in both these Languages.

To a great extent, the principles contained in the Official Languages Act of Canada are those which the Alberta Government believes should be recognized in the Constitution, in acknowledgement of the bilingual nature of the Canadian federation.

The ten Premiers have recognized the need to provide education in either language, wherever possible. At the 1977 Annual Premiers’ Conference, a resolution on language was agreed to which reads, in part:

Recognizing our concern for the maintenance and, where indicated, development of minority language rights in Canada; and

Recognizing that education is the foundation on which language and culture rest;

The Premiers agree that they will make their best efforts to provide instruction in education in English and French wherever numbers warrant.

The responsibility for providing minority language education services, however, must remain within provincial jurisdiction. The provision of these services primarily is an educational matter and must be determined by provincial legislatures.

XII ENTRENCHMENT OF OTHER RIGHTS

Recommendation:

The Alberta Government recommends:

29. that the protection of fundamental human rights continue to be the responsibility of Parliament and the Provincial

[Page A:23]

Legislatures, rather than a bill of rights entrenched in the Constitution.

The Government of Alberta believes that the rights of Alberta citizens are well protected by the Alberta Bill of Rights and the Alberta Individual’s Rights Protection Act. The primacy clauses of these acts and the upholding of their provisions by the courts has provided the best protection of rights for Albertans.

While there are many proposals for and against entrenchment of human rights in the Constitution, it can be argued that the best guarantee of righs if a vigilant legislature which can take the necessary steps to ensure that the rights of citizens are safeguarded and meet the demands and needs of a changing society, This argument is based upon the concept that the role of legislatures in protecting rights would be significantly diminished if a bill of rights were to be entrenched in the Constitution. The principle of legislative supremacy would be undermined. The courts would become the chief forum for determining what is permissible under an entrenched bill of rights. To a great extent, this has been the case in the United States. One of the consequences has been to involve the courts in the adjudication of a wide range of social questions, which in the interests of society are best debated and resolved in legislatures. Legally enacted bills of rights do not preclude the courts from upholding these rights. The commitment of legislatures to guarantee rights is best secured by incorporating primacy provisions, such as are found in Alberta’s legislation.

Further, to entrench rights in the Constitution is to risk the limitation of rights not enumerated therein, to make it very difficult to amend these rights, and to limit the scope of their application.

CONCLUSION

Amending Canada’s Constitution is a difficult and challenging task, a process which must be undertaken with great care and deliberation. Proposals for change which will be considered by the participants—the eleven governments—will arise from a number of sources and must be examined carefully. The objective of the exercise is not just to attune Canada’s federal system to the needs of today, but to provide a framework for the future.

This paper has introduced a number of concepts and specific recommendations for change. The Government of Alberta believes that these recommendations, if adopted, will help to resolve many of the current problems facing our nation, and will provide a framework within which Canada can continue to evolve with confidence. One of the major premises upon which these concepts and recommendations are based is that strong provinces will be a strengthening and unifying force within Canada. By recognizing the diversity inherent in our federation and by permitting provinces to develop to their full

[Page A:24]

potential, harmony can be achieved and Canada’s future assured.

SUMMARY OF RECOMMENDATIONS

In light of the principles affirmed and the concerns enunciated. the Alberta Government recommends:

1. That the proposed changes to the Constitution be considered as a package, and not be compartmentalized.

2. That the process be undertaken with all deliberate speed, but that no unrealistic timetable be established.

3. That no changes to the Constitution which affect federal-provincial relations or which affect the provinces be adopted without the concurrence of the eleven governments of Canada and of Parliament and the Provincial Legislatures.

4. That modifications to the division of powers be recognized as the key to achieving a new federalism for Canada.

5. That the division of powers be discussed concurrenly with other constitutional questions, such as federal insitutions.

6. That the existing sections in the British North America Act protecting provincial ownership and control of natural resources be strengthened.

7. That the Constitution be clarified in order to re-affirm the provinces’ authority to tax and to collect royalties from the sale and management of their natural resources.

8. That provincial jurisdiction be established over offshore minerals.

9. That the province be given access both to direct and indirect taxes, with the exception of customs and import duties.

10. That the Constitution include provisions that confirm the established legitimate role of the provinces in certain areas of international relations.

11. That communications be included as a concurrent power in the Constitution.

12. That sea coast and inland fisheries be a concurrent power in the Constitution, with provincial paramountcy.

13. That provincial jurisdiction over certain aspects of transportation be strengthened by including transportation as a concurrent power.

14. That culture be included in the Constitution as a concurrent power, with provincial paramountcy.

15. That a representative constitutional court be established to resolve constitutional issues.

16. That forty percent of the members of designated national boards and agencies be appointed by the provinces.

17. That the powers of reservation and disallowance be repealed.

18. That the power of the federal government to declare a work situated within a province’s borders to be for the general advantage of Canada or for two or more of the

[Page A:25]

provinces should be used only after the concurrence of the province in which the work is situated.

19. That the federal emergency power be limited so as to ensure that the federal government and Parliament cannot assume responsibility over a broad range of matters, not listed within the enumerated heads of Section 91.

20. That limits be placed on Parliament’s ability to spend in areas of provincial jurisdiction.

21. That the concept of concurrent jurisdiction be expanded through a provision in the Constitution for the delegation of powers between the federal and provincial governments.

22. That before a delegation of powers is effected, the federal government and the province(s) affected concur.

23. That provision be made in the Constitution for an annual meeting of First Ministers.

24. That an amending formula must reflect the principle that all provinces have equal constitutional status.

25. That an amending formula reflect the principle that existing rights, proprietary interests and jurisdiction of a province cannot be diminished without the consent of that province.

26. That the objective of reducing regional disparities be recognized in the Constitution.

27. That the principle of equalization be recognized in the Constitution.

28. That the Constitution recognize English and French as the official languages of Canada.

29. That the protection of fundamental human rights continue to be the responsibility of Parliament and the Provincial Legislatures, rather than a bill of rights entrenched in the Constitution.

APPENDIX A

PREMIER LOUGHEED TO PRIME MINISTER TRUDEAU, OCTOBER 14, 1976

The Honourable Pierre Elliott Trudeau

Prime Minister of Canada

House of Commons

OTTAWA (Ontario)

My dear Prime Minister:

Further to my letter of September 2, 1976 and my telex of October 3, 1976, I wish to inform you of the outcome of the deliberations by the ten Canadian Premiers on the issues raised by you in your letter of March 31, 1976 relative to patriation of the Constitution from Westminster to Canada.

Your letter of March 31, 1976 outlined three possible options and served as a framework for our deliberations. The provinces agreed in May 1976 to proceed with an examination of all three options. You will recall that your option 3 includes patriation, an amending formula and a number of other substantive changes to the British North America Act which were contained in the draft proclamation appended to your letter of March 31, 1976. You will also recall that when the premiers

[Page A:26]

had private discussions on this matter at your residence during the evening of June 14, 1976, you indicated that you would be prepared to accept any proposal which had been unanimously agreed to by the provinces.

At the same time, you indicated that you hoped we could consider the matter over the summer and report to you early in the fall as to the outcome of our deliberations and discussions.

As Chairman of the Annual Conference of Premiers, I would like to now deal with the matters as they were outlined in your letter of March 31, 1976.

Patriation

All provinces agreed with the objective of patriation. They also agreed that patriation should not be undertaken without a consensus being developed on an expansion of the role of the provinces and/or jurisdiction in the following areas: culture, communications, Supreme Court of Canada, spending power, Senate representation and regional disparities. Later in the letter I will endeavour to give you some idea of our discussion on the above matters.

Amending Formula

Considerable time was spent on this important subject and the unanimous agreement of the provinces was not secured on a specific formula. Eight provinces agreed to the amending formula as drafted in Victoria in 1971 and as proposed by you in your draft proclamation. British Columbia wishes to have the Victoria Formula modified to reflect its view that British Columbia should be treated as a distinct entity with its own separate veto. In this sense it would be in the same position as Ontario and Quebec. Alberta held to the view that a constitutional amending formula should not permit an amendment that would take away rights, proprietary interests and jurisdiction from any province without the concurrence of that province. In this regard, Alberta was referring to matters arising under Section 92.93 and 109 of the British North America Act.

Matters Unanimously Agreed to

A number of matters were dealt with and unanimously agreed to. Specific texts were considered and given approval, subject to revision by draftsmen.

a) A greater degree of provincial involvement in immigration.

b) A confirmation of the language rights of English and French generally along the lines discussed in Victoria in 1971.

c) A strengthening of jurisdiction of provincial governments of taxation in the areas of primary production from lands, mines, minerals and forests.

d) A provision that the declaratory powers of the federal government to declare a particular work for the general advantage of Canada would only be exercised when the province affected concurred.

[Page A:27]

e) That a conference composed of the eleven First Ministers of Canada should be held at least once a year as a constitutional requirement.

f) That the creation of new provinces should be subject to any amending formula consensus.

As already mentioned under the remarks on patriation. the provinces were of the view that while patriation was desirable it should be accompanied by the expansion of provincial jurisdiction and involvement in certain areas. The Premiers believed that discussions on these matters should be held with the federal government because they involve the federal government to a significant degree.

a) Culture—You will recall that culture was referred to in Parts IV and VI of the draft proclamation. The interprovincial discussions on culture focused on the addition of a new concurrent power to be included in the Constitution. This power would refer to arts, literature and cultural heritage and would be subject to provincial paramountcy. On this matter, there was a high degree of consensus on the principle and considerable progress was made with respect to a solution. There was also however, firm opinion from one province that the provinces and the federal government should have concurrent jurisdictional powers in the area.

b) Communications—In the draft proclamation. communications was referred to in Part VI. Discussions on this subject related to a greater provincial control in communications particularly in the area of cable television.

c) Supreme Court of Canada—In general, discussions on this topic developed from those articles found in Part II of the draft proclamation. The provinces unanimously agreed to a greater role for the provinces in the appointment of Supreme Court judges than provided for in the draft proclamation. In addition a number of other modifications were suggested to the provisions found in the draft proclamation.

d) Spending Power—Discussion on this matter focused on the necessity and desirablity of having a consensus mechanism which must be applied before the federal government could exercise its spending power in areas of provincial jurisdiction.

e) Senate Representation—Discussion on this subject related to British Columbia’s proposal that Senate representation for that province be increased.

f) Regional Disparities and Equalization—In the draft proclamation, Regional Disparities was referred to in Part V. The discussions on this topic focused on the expansion and strengthening of this section to include a reference to equalization. There was unanimous agreement on the clause contained in the draft proclamation and a high degree of consensus on incorporating clauses in the Constitution providing for equalization.

Other matters were discussed, but it was felt by the Premiers that their deliberations had been of a preliminary and exploratory nature. As such in any future meeting it is

[Page A:28]

possible that indididual provinces may present additional suggestions for consideration.

The Premiers were of the view that significant progress on this complex matter had occurred. It was felt that further progress would require discussions between the provinces and the federal government. It was concluded by the Premiers that the next step should be for you to meet with the Premiers and develop the discussions reflected in this letter. The Premiers felt that it would now be appropriate for them to accept your invitation for further discussions in the near future, at a mutually agreeable time.

Given the importance of this subject and the reference to it in your Throne Speech of October 12, 1976, the other Premiers may wish to join with me in tabling this letter before our respective provincial legislatures or otherwise making this letter public on October 20, 1976. If you have any objection could you please advise me forthwith.

APPENDIX B

For many years, provincial governments have shown concern over constitutional issues and have participated actively in a large number of conferences and discussions. As a result of provincial initiatives and leadership, a great deal of useful progress has been made in identifying problems requiring constitutional action, and achieving a greater understanding of their implications.

Premiers agreed that the division of powers is the key issue in constitutional reform, and should be addressed in conjunction with other matters.

1. The Importance of Constitutional Discussions

The provinces endorse the need for constitutional reform, to provide the basis for all Canadians to achieve a greater measure of economic and social well-being and cultural fulfillment, and to establish more harmonious relations among governments.

2. First Ministers’ Conference on the Constitution

The provincial governments therefore look forward to the forthcoming First Ministers’ Conference on the Constitution now scheduled for the end of October.

They believe that the Conference should be open.

[Page A:29]

They believe, further, that the agenda must accommodate all proposals, and should be drawn up jointly by the federal government and the provinces.

The Premiers accordingly have instructed Ministers responsible for the Constitution to continue preparatory work, and to invite the federal Minister of State for Federal-Provincial Relations to meet with them.

3. Proposals

In the view of the Premiers, important proposals from all sources must be given careful and thorough consideration in the constitutional review process. Some of these proposals are:

—the consensus reached by the ten provincial Premiers in October, 1976.

—proposals made, or under preparation, by or for federal or provincial governments, such as the report expected from the Task Force on Canadian Unity, co-chaired by Hon. Jean-Luc Pepin and Hon. John Roberts.

—the federal government’s Constitutional Amendment Bill.

4. The Importance of Agreement

The Premiers firmly believe that significant constitutional reform should have the concurrence of all governments, recognizing the equality of status of all provinces in the process.

It is doubtful whether the federal government has the legal authority to proceed unilaterally with proposed changes to the Senate and the role of the monarchy. In any event, it would clearly be wrong for them to undertake unilateral action in those or other important areas without provincial support.

Constitutional reform must be part of a process that will improve the well-being of all citizens and strengthen intergovernmental relations.

5. A Comprehensive Approach

It was agreed that discussions on constitutional reform cannot be compartmentalized into artificial divisions. Institutional and jurisdictional problems interact in such a way that they must be considered together.

The Premiers agreed that problems involving the distribution of power between the federal government and the provinces have been a major source of friction and have a negative impact on the daily lives of all Canadians. These problems demand equal attention.

6. A Realistic Timeframe

A comprehensive review is unlikely to be successful if arbitrary deadlines are imposed. A fixed and rigid timetable is unrealistic and does nothing to contribute to the harmony and goodwill necessary to complete a process of constitutional review.

[Page A:30]

1. The Consensus Reached by Premiers in 1976

Provinces agreed to advance, again, the 1976 consensus, which has not received an adequate response from the federal government. That consensus constitutes a useful starting point for discussions with the federal government in crucial areas involving the distribution of powers, and represents a positive contribution toward the resolution of significant problems.

Quebec said that, while committed to its option of sovereignty-association, it could generally go along with the 1976 consensus and most of the other constitutional points raised in Regina. Quebec went on to state that this approach falls within the mandate of the Quebec government to reinforce provincial rights, within the present system, and also illustrates some of the minimal changes required to make the federal system a serious alternative in the forthcoming Quebec referendum.

The 1976 consensus covered a number of areas of concern:

—immigration

—language rights

—resource taxation

—the federal declaratory power

—annual Conference of First Ministers

—creation of new provinces

—culture

—communications

—Supreme Court of Canada

—the federal spending power

—regional disparities and equalization.

2. Other Areas of Consensus

In addition, the Premiers, in the course of their discussion in Regina, have reached agreement on a number of additional substantive matters, on which federal views are invited:

—abolition of the now obsolete federal powers to reserve or disallow provincial legislation

—a clear limitation on the federal power to implement treaties, so that it cannot be used to invade areas of provincial jurisdiction

—the establishment of an appropriate provincial jurisdiction with respect to fisheries

—confirmation and strengthening of provincial powers with respect to natural resources

—full and formal consultation with the provinces in appointments to the Superior, District and County Courts of the provinces

[Page A:31]

—appropriate provincial involvement in appointments to the Supreme Court of Canada.

3. Other Subjects

Further, there was a consensus that a number of additional matters require early consideration:

—the federal emergency power

—formal access of the provinces to the field of indirect taxation

—the federal residual power

—amending formula and patriation

—the delegation of legislative powers between governments.

4. Elements of the Constitutional Amendment Bill

With regard to the federal Constitutional Amendment Bill, Premiers expressed a number of substantive concerns, in addition to the points noted previously.

Provinces agree that the system of democratic parliamentary government requires an ultimate authority to ensure its responsible nature and to safeguard against abuses of power. That ultimate power must not be an instrument of the federal Cabinet. The Premiers, therefore, oppose constitutional changes that substitute for the Queen as ultimate authority, a Governor General whose appointment and dismissal would be solely at the pleasure of the federal Cabinet.

The provinces regard the House of the Federation, as proposed, as unworkable.

Some provinces support the principle of constitutional entrenchment of basic rights; while others believe that, under our parliamentary system, individual rights are better protected by basic constitutional traditions and the ordinary legislative process.

Provinces are concerned over section 8 of the federal Bill and its potential interference with important provincial legislation respecting land ownership and other matters.

Some Premiers noted that the proposed language guarantees go substantially beyond earlier proposals, and feel that practical difficulties may be encountered in their provinces, particularly in respect of provincial government services and courts.

All Premiers expressed grave concern that section 109 of the B.N.A. Act, concerning provincial ownership of natural resources, has not been carried forward into the proposed new constitution.

Premiers are concerned that section 32 of the Constitutional Amendment Bill is an attempt by the federal government to acquire from the provinces jurisdiction over offshore territories and resources.

Premiers feel that, if there is to be a preamble, it should be short, clear, and precise. A statement of aims, if any, would best be included in the preamble.

Premiers stressed that all these issues, and others, will require careful and detailed discussion with the federal government.

[Page A:32]

APPENDIX C

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,—

Legislative Authority of Parliament of Canada

1. The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or Government of a province, or to any class of persons with respect to schools or as regards the use of English or the French language or as regards the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of return of the Writs for choosing the House: provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House. (39)

1A. The Public Debt and Property. (40)
2. The Regulation of Trade and Commerce.
2A. Unemployment insurance. (41)
3. The raising of Money by any Mode or System of Taxation.
4. The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Census and Statistics.
7. Militia, Military and Naval Service, and Defence.
8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.
9. Beacons, Buoys, Lighthouses, and Sable Island.
10. Navigation and Shipping.
11. Quarantine and the Establishment and Maintenance of Marine Hospitals.
12. Sea Coast and Inland Fisheries.

[Page A:33]

13. Ferries between a Province and any British or Foreign Country or between Two Provinces.
14. Currency and Coinage.
15. Banking, incorporation of Banks, and the Issue of Paper Money.
16. Savings Banks.
17. Weights and Measures.
18. Bills of Exchange and Promissory Notes.
19. Interest.
20. Legal Tender.

(39) Added by the British North America (No. 2) Act, 1949, 13 Geo. VI, c. 81 (U.K.).
(40) Re-numbered by the British North America (No. 2) Act. 1949.
(41) Added by the British North America, 1940, 3-4 Geo. VI. c. 36 (U.K.).

21. Bankruptcy and Insolvency.
22. Patents of Invention and Discovery.
23. Copyrights.
24. Indians, and Lands reserved for the Indians.
25. Naturalization and Aliens.
26. Marriage and Divorce.
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
28. The Establishment, Maintenance, and Management of Penitentiaries.
29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. (42)

(42) Legislative authority has been conferred on Parliament by other Acts as follows:

1. The British North America Act, 1871, 34-35 Vict., c. 28 (U.K.).

2. The Parliament of Canada, may from time to time establish new Provinces in any territories forming for the time being part of the Domision of Canada, but not included in any Province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province, and for the passing of laws for the peace, order, and good government of such Province, and for its representation in the said Parliament.

3. The Parliament of Canada may from time to time, with the consent of the Legislature of any Province of the said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby.

[Page A:34]

4. The Parliament of Canada may from time to time make provision for the administration peace, order, and good government of any territory not for the time being included in any Province.

5. The following Acts passed by the said Parliament of Canada, and intituled respectively,—”An Act for the temporary government of Rupert’s Land and the North Western Territory when united with Canada”; and “An Act to amend and continue the Act thirty-two and thirty-three Victoria, chapter three, and to establish and provide for the government of “the Province of Manitoba,” shall be and be deemed to have been valid and effectual for all purposes whatsoever from the date at which they respectively received the assent, in the Queen’s name, of the Governor General of the said Dominion of Canada.

6. Except as provided by the third section of this Act, it shall not be competent for the Parliament of Canada to alter the provisions of the last-mentioned Act of the said Parliament in so far as it relates to the Province of Manitoba, or of any other Act hereafter establishing new Provinces in the said Dominion. Subject always to the right of the Legislature of the Province of Manitoba to alter from time to time the provisions of any law respecting the qualification of electors and members of the Legislative Assembly, and to make laws respecting elections in the said Province.

The Rupert’s Land Act 1868, 31-32 Vict., c. 105 (U.K.) (repealed by the Statute Law Revision Act. 1893, 56-57 Vict., c. 14 (U.K.)) had previously conferred similar authority in relation to Rupert’s Land and the North-Western Territory upon admission of those areas.

Exclusive Powers of Provincial Legislatures

Subjects of exclusive Provincial Legislation

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next herein-after enumerated; that is to say, —

1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.

2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.

3. The borrowing of Money on the sole Credit of the Province.

4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.

5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.

6. The Establishment, Maintenance, and Management of Publics and Reformatory Prisons in and for the Province.

7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

8. Municipal Institutions in the Province.

[Page A:35]

9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.

10. Local Works and Undertakings other than such as are of the following Classes: —

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Understandings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province;

(b) Lines of Steam Ships between the Province and any British or Foreign Country;

(c) Such Works as, although wholly situate within the Provinces, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

11. The Incorporation of Companies with Provincial Objects.

12. The Solemnization of Marriage in the Province.

13. Property and Civil Rights in the Province.

14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.

16. Generally all Matters or a merely local or private Nature in the Province.

2. The British North America Act, 1886, 49-50 Vict., c. 35. (UK)

1. The Parliament of Canada may from time to time make provision for the representation in the Senate and House of Commons of Canada, or in either of them, of any territories which for the time being form part of the Dominion of Canada, but are not included in any province thereof.

3. The Statute of Westminster, 1931, 22 Geo. V. c. 4 (UK).

3. It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.

Legislation respecting Education

93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provision:—

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Sepa-

[Page A:36]

rate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec:

(3) Where in any Province a System of Separate of Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education:

(4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section. (43)

(43) Altered for Manitoba by section 22 of the Manitoba Act, 33 Vict., c. 3 (Canada), (confirmed by the British North America Act, 1871), which reads as follows:

22. In and for the Province, the said Legislature may exclusively make Laws in relation to Education, subject and according to the following provisions:—

(1) Nothing in any such Law shall prejudicially affect any right or privilege with respect to Denominational Schools which any class of persons have by Law or practice in the Province at the Union:

(2) An appeal shall lie to the Governor General in Council from any Act or decision of the Legislature of the Province, or of any Provincial Authority, affecting any right or privilege, of the Protestant or Roman Catholic minority of the Queen’s subjects in relation to Education:

(3) In case any such Provincial Law, as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper Provincial Authority in that behalf, then, and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial Laws for the due execution of the provisions of this section, and of any decision of the Governor General in Council under this section.

Altered for Alberta by section 17 of The Alberta Act, 4-5 Edw. VII. c. 3 which reads as follows:

[Page A:37]

17. Section 93 of The British North America Act, 1867, shall apply to the said province, with the substitution for paragraph (1) of the said section 93 of the following paragraph:—

(1) Nothing in any such law shall prejudically affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the Northwest Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.

Legislation respecting old age pensions and supplementary benefits

94A. The Parliament of Canada may make laws in relation to old age pensions and supplementary benefits, including survivors’ and disability benefits irrespective of age, but no such law shall affect the operation of any law present or future of a provincial legislature in relation to any such matter. (44)

2. In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29 or any Act passed in amendment thereof, or in substitution therefor, there shall be no discrimination against schools of any class described in the said chapter 29.

3. Where the expression “by law” is employed in paragraph 3 of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30, and where the expression “at the Union” is employed, in the said paragraph 3, it shall be held to mean the date at which this Act comes into force.

Altered for Saskatchewan by section 17 of The Saskatchewan Act, 4-5 Edw. VII, c. 42, which reads as follows:

17. Section 93 of the British North America Act, 1867, shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:—

(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the Northwest Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances.

2. In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29, or any Act passed in amendment thereof or in substitution therefor, there shall be no discrimination against schools of any class described in the said chapter 29.

3. Where the expression “by law” is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and where the expression “at the Union” is employed in the said paragraph

[Page A:38]

(3), it shall be held to mean the date at which this Act comes into force.

(44) Added by the British North America Act, 1964 12-13, Eliz. II, c. 73 (U.K.). Originally enacted by the British North America Act, 1951, 14-15 Geo. VI, c. 32 (U.K.), as follows:

94A. It is hereby declared that the Parliament of Canada may from time to time make laws in relation to old age pensions in Canada, but no law made by the Parliament of Canada in relation to old age pensions shall affect the operation of any law present or future of a Provincial Legislature in relation to old age pensions.

Concurrent Powers of Legislation respecting Agriculture, etc.

95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.

Property in Lands, Mines. etc.

109. All Lands, Mines, Minerals and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same. (48)

(48) The four western provinces were placed in the same position as the original provinces by the British North America Act, 1930, 21 Geo. V, c. 26 (U.K.).

Provincial Public Property

117, The several Provinces shall retain all their respective Public Property not otherwise disposed of in this Act, subject to the Right of Canada to assume any Lands or Public Property required for Fortifications or for the Defence of the Country.

Use of English and French Languages

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

[Page A:39]

APPENDIX D

Whereas the agreements set out in the Schedule to this Act were entered into between the Government of the Dominion of Canada and the Governments of the Provinces of Manitoba, British Columbia, Alberta and Saskatchewan respectively subject, however, in each case to approval by the Parliament of Canada and the Legislature of the Province to which the agreement relates and also to confirmation by the Parliament of the United Kingdom:

And whereas each of the said agreements has been duly approved by the Parliament of Canada and by the Legislature of the Province to which it relates:

And whereas, after the execution of the said agreement relating to the Province of Alberta, it was agreed between the parties concerned, subject to such approval and confirmation as aforesaid, that the said Province should, in addition to the rights accruing to it under the said agreement as originally executed, be entitled to such further rights, if any, with respect to the subject matter of the said agreement as were required to be vested in the Province in order that it might enjoy rights equal to those which might be conferred upon or reserved to the Province of Saskatchewan under any agreement upon a like subject matter thereafter approved and confirmed in the manner aforesaid, and provision in that behalf was accordingly made by the Parliament of Canada and the Legislature of the Province of Alberta when approving the said agreement:

And whereas the Senate and Commons of Canada in Parliament assembled have submitted an address to His Majesty praying that His Majesty may graciously be pleased to give his consent to the submission of a measure to the Parliament of the United Kingdom for the confirmation of the said agreements:

Be it therefore enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Confirmation of scheduled agreements, 30 & 31 Vict. c. 3

1. The agreements set out in the Schedule to this Act are hereby confirmed and shall have the force of law notwithstanding anything’ in the British North America Act, 1867, or any Act amending the same, or any Act of the Parliament of

[Page A:40]

Canada, or in any Order in Council or terms or conditions of union made or approved under any such Act as aforesaid.

Extension of scheduled agreement relating to Alberta

2. The agreement relating to the Province of Alberta which is confirmed by this Act shall be construed and have effect for all purposes as if it contained a provision to the following effect, namely, that the said Province shall, in addition to the rights accruing to it under the said agreement as originally executed, be entitled to such further rights, if any, with respect to the subject matter of the said agreement as are required to be vested in the Province in order that it may enjoy rights equal to those conferred upon, or reserved to, the Province of Saskatchewan under the agreement relating to that Province which is confirmed by this Act.

Short title

3. This Act may be cited as the British North America Act, 1930, and the British North America Acts, 1867 to 1916, and this Act may be cited together as the British North America Acts, 1867 to 1930.

1. In order that the Province may be in the same position as the original Provinces of Confederation are in virtue of section one hundred and nine of the British North America Act, 1867, the interest of the Crown in all Crown lands, mines, minerals (precious and base) and royalties derived therefrom within the Province, and all sums due and payable for such lands, mines, minerals or royalties, shall, from and after the coming into force of this agreement and subject as therein otherwise provided, belong to the Province, subject to any trusts existing in respect thereof, and to any interest other than that of the Crown in the same, and the said lands, mines, minerals or royalties shall be administered by the Province for the purposes thereof, subject, until the Legislature of the Province otherwise provides, to the provisions of any Act of Parliament of Canada relating to such administration; any payment received by Canada in respect of any such lands, mines, minerals or royalties before the coming into force of this agreement shall continue to belong to Canada whether paid in advance or otherwise, it being the intention that, except as herein otherwise specially provided, Canada shall not be liable to account to the Province for any payment made in respect of any of the said lands, mines, minerals or royalties before the coming into force of this agreement, and that the Province shall not be liable to account to Canada for any such payment made thereafter.

[Page A:41]

APPENDIX “CCC-11”

[Page A:42]

[Page A:43]

Towards a New Canada: The moderate option was drafted by the Constitution Committee of the Alberta New Democratic Party.

This pro tem committee was struck by the Provincial Council of the Alberta NDP during its meeting of June 14-15, 1980, and was charged with reviewing the current Canadian constitution, the various concerns and formal positions that had been advanced to date (specifically including the federal government’s constitutional initiatives), and with then drafting a formal position to be presented for adoption by the Alberta NDP.

The Committee was jointly chaired by Grant Notley, Member of the Legislative Assembly of the Province of Alberta, and Muriel McCreary.

Other members of the Committee were Anne Hemmingway, Larry Pratt, Peter Puxley, Garth Stevenson, Gerald Sutton and Davis Swan.

The Committee met over the course of the summer of 1980, and presented its first draft of this brief to the Executive Committee of the Alberta NDP on September 3, 1980, The Executive Committee approved the draft, and it was then widely circulated, both within the Alberta NDP and to the public generally, for comment and debate.

A day-long public discussion of the draft was held in Edmonton on December 13, 1980.

On December 14, the Provincial Council of the Alberta NDP formally adopted the amended draft as a policy document, and directed that it be submitted to the Parliamentary Committee currently studying the federal government’s constitutional resolution.

Unfortunately, discussions between provincial and federal governments on the subject of constitutional change have not always been carried out in a public-spirited and statesman-like fashion. Cynicism has all too often characterized the approaches of the Alberta and other governments at the provincial level, and of the Liberal government at the federal level.

The natural resource issue, for example, has been manipulated in a dangerous fashion by both sides for narrow political ends. The federal government’s effort to isolate the Province of Alberta by misrepresenting its legitimate concerns over the erosion of its constitutional right to ownership and control of its natural resources, has amounted to crude “Alberta bashing”. Such efforts to generate irrational animosity between different regions of the country are quite contrary to the Trudeau governments professed concern for Canadian unity.

At the same time, the Lougheed government’s approach to constitutional reform has strikingly omitted any mention of a positive role for a federal government. At times, it almost appears to be an element of Alberta provincial policy to deny

[Page A:44]

the existence of the national interests of Albertans. Amazing though it may seem, the constitutional position paper adopted by the Lougheed government, Harmony in Diversity, has nothing to say concerning the role of a federal government.

It is therefore essential that the people of Canada realize that the Lougheed position is not the position of all Albertans who see themselves as Canadians first and Albertans second. Such a stand does not demand the erosion of provincial control over natural resources or other areas crucial to regional autonomy. Nor does this stand require the denigration of the vitally important interests we share with all Canadians represented through our national level of government.

We should not be misled into expecting too much from a revised constitution. It will not resolve the problems Canadians are experiencing with regard to a failing economy, inadequate social services, deteriorating housing conditions, declining education programs, inadequate support to farmers, racism, and the loss of political autonomy which stems from an economy dominated by foreign-owned enterprises. These are problems which, yesterday, today and tomorrow, are well within the abilities of the governments of Canada and the provinces to deal with, if they had the will to do so.

The following paper presents a reasonable and moderate approach to constitutional change for the people of Canada. It is not intended to be exhaustive but it does attack crucial areas of concern. It is hoped that all Canadians will become involved in this most important process, a process too important to be left to those who may exploit the constitutional issue for their own narrow ends.

The Preamble

The Preamble should indicate that authority flows from the Canadian people, rather than from the British Parliament in Westminster. The preamble should affirm the duality of Canada as a union of two collectivities speaking English and French languages respectively, voluntarily united for common objectives on a basis of equal respect for one another’s rights.

In addition, the preamble must acknowledge the special status of Canada’s aboriginal peoples, such status deriving from formal recognition by the Crown pre-dating Confederation.

The Role of the National Government

Canadians require a central government with adequate legislative powers and economic resources to safeguard national independence and to ensure that all citizens have fair access to social and economic justice. in the absence of such a government, the wealth of the country will be increasingly concentrated in a few regions and groups, and Canadians could be dangerously divided along have and have-not lines.

[Page A:45]

The federal government must also have sufficient powers to preserve the Canadian federation; to conduct foreign policy and ensure defence; to oversee interprovincial and international trade; to regulate foreign investment; to implement broad economic, fiscal and monetary policies; to conduct essential programmes of economic stabilization and equalization; and, wherever consistent with the constitutional prerogatives of the provinces. to promote a progressive economic union of all Canadians.

The Role of the Provinces

A revised constitution must acknowledge that the provinces are not subordinate or inferior, but, within their jurisdiction, are the full equals of the federal government.

Provinces have responsibility for the development of their respective communities, including economic development and the management of their resources, and for the administration of property and civil rights.

Because of the growing number of areas over which the provinces have exclusive or concurrent legislative responsibilities, they also require correspondingly adequate powers to tax and to derive income from the development of their resources.

The capacity of the national government to encroach upon provincial powers and to frustrate legitimate provincial development must be limited by a careful definition of powers. For their part, the provinces’ ability to discriminate against other Canadians and to erect barriers to a strong economic union must also be limited.

Language Rights

The right to use either official language should be protected in all provinces, and not just in Quebec and Manitoba, and this should create binding obligations on both levels of government.

For example, in Alberta, Franco-Albertans should be entitled to education in French, the right to use French in the courts, and the right to correspond with either level of government in French and receive a reply in that language. Similarly, Anglo-Quebecers should be entitled to the same rights in Quebec.

Aboriginal and Treaty Rights

The vulnerability of the rights of native people to unilateral reinterpretation by the federal government, provincial governments and the courts must be removed by enshrining such rights in the constitution.

To this end, it is essential that such constitutional documents as the Royal Proclamation of 1763 and all Treaties between aboriginal peoples and the Crown be given constitutional status.

Such status will guarantee to native people the right of negotiation prior to any change in their status taking place.

[Page A:46]

The rights of native people must not be defined unilaterally by the federal government or through any other process from which native people are excluded.

Entrenchment of Other Rights

A bill of rights should be entrenched in the constitution, binding on both levels of government and enforceable by the courts. However, care should be taken not to include phrases that will benefit corporations more than individuals, or else the bill of rights should specify that rights belong to natural persons only.

Provinces should be prevented from discriminating against residents of other provinces (as in the Australian constitution).

The Supreme Court

The Supreme Court should be provided for in the constitution, not in an ordinary statute. However, its structure and terms of reference should remain unchanged. Appointments should continue to be made by the federal government but should be subject to ratification by the newly created Council of the Provinces.

The Senate

The Senate should be abolished, and no such second house providing lifelong sinecures should take its place.

The Council of the Provinces

The Council of the Provinces will bring representatives of all provinces together in a national context, as a national body.

The Council will represent the interests of the provinces at the federal level. As such, it will rule on questions requiring consent by both Parliament and the provinces.

Matters requiring Council consideration will be those affecting areas of concurrent powers, the definition of issues justifying use of federal emergency powers, the exercise of federal emergency powers, treaties relative to provincial jurisdiction, shared-cost programs, and ratification or rejection of federal appointments to the Supreme Court.

Seats in the Council will be divided equally amongst the provinces. Seats will be allocated in the name of the province and not to individual delegates.

Provincial representatives would not be permanent, but would be appointed by their respective governments according to their appropriateness to the matters at hand. This flexibility will permit provincial cabinet ministers and provincial Assembly members to act as provincial representatives on the Council. Similarly, it will allow non-elected officials to so act as representatives.

The Council’s deliberations will be governed by Parliamentary procedure designed to facilitate decision-making. Decisions of the Council will be made by a majority of the provincial delegations, except in the case of proposals for constitutional amendments.

[Page A:47]

The Council would be called into session by order of the Governor-General in Council, at the initiative of the federal government, or by request by a majority of the provinces.

The Council’s powers should not be such as to undermine the principle of the federal government being responsible to the elected House of Commons. Nor should the actions of the Council prevent the federal government from carrying out its constitutional responsibilities. In particular, the Council should have no powers over the federal budget or estimates.

The Northwest Territories and the Yukon Territory, and any other future territory, should be represented in the Council of the Provinces, having the right to debate, but not to vote.

The existence of a permanent Council of the Provinces will ensure debate in public on national issues as they affect the provinces, and will formalize the responsibility for an effective federalism on the part of the provinces.

Proportional Representation in the House of Commons

While by far the majority of representatives in the House of Commons should continue to be elected as at present, there is a need to guard against the occurrence of federal governments lacking in representation from significant regions of the country.

To this end, a certain number of members should be selected on the basis of proportional representation.

Amendments

Future amendments to the constitution should require approval of Parliament and of seven out of ten provinces in the Council of the Provinces, the combined populations of which would constitute at least 85 per cent of the population of Canada.

However, amendments affecting language rights, education, or ownership and control of natural resources would require unanimity in the Council of the Provinces.

This formula received considerable support from the Continuing Committee of Ministers on the Constitution, and has come to be known as the “Toronto consensus”.

We would add one additional requirement: in accordance with the principle that authority flows from the Canadian people, any amendment approved by the Parliament and the Council of the Provinces would have to be ratified by a majority of Canadians voting in a national referendum.

Foreign Policy

The executive power to make treaties should be exclusively federal, but might require the “advice and consent” of the Council of the Provinces. The legislative power to implement treaties should be divided between the Parliament and the Council of the Provinces, depending on the subject matter of the treaty. At international conferences dealing with subjects of provincial jurisdiction, provinces should be guaranteed the right to participate, but only as part of a single Canadian delegation.

[Page A:48]

Disallowance and Reservation

These powers should be abolished.

The Spending Power

The right of Parliament to make grants to individuals and to provincial governments is fundamental to the redistribution of income and other objectives cherished by the NDP. We should recognize that the .well-orchestrated hostility to the spending power is motivated largely by a dislike of public expenditure as such, particularly expenditure on health and welfare and income redistribution.

However, we could agree that shared-cost programs should require the approval of the Council of the Provinces. Federal grants directly to individuals and unconditional grants to provincial governments should not.

Equalization

In order that all provincial governments will be in a position to carry out their responsibilities and that all Canadians may expect a comparable standard of public services, regardless of where they live, the principle of equalization of provincial revenues must be entrenched in the constitution. The responsibility for implementing this principle must be shared by the federal government and the governments of the richer provinces.

The Management of Resources

A revised constitution must clarify the division of legislative powers as they pertain to the management of resources. The following principles must be respected.

First, the provinces should have the exclusive powers to legislate in relation to the exploration, development, conservation and management of natural resources in the province, including the right to control the rate of production.

Second, the provinces should be given concurrent legislative powers to legislate in relation to the export from the province of the primary production of resources; but, federal powers must prevail over provincial powers in the area of international trade.

Third, the use of the federal trade and commerce power must be restricted so that it cannot be used to abridge provincial powers over resources except in emergency situations of compelling national interest (such exceptions requiring approval by both Parliament and the Council of the Provinces).

Fourth, the provinces should be given the power to raise money by any mode or system of taxation in respect of resources, provided that such taxation does not discriminate between production used in the province and production exported to another part of Canada.

Fifth, provinces should be prohibited from instituting price discrimination between resources used in the province and resources exported to other parts of Canada.

[Page A:49]

Offshore Minerals

Because of the international implications, the federal government should act as the landlord but should be required to manage the development of such resources jointly with, and rebate the majority of revenues received to, the adjacent province.

Division of Legislative Powers

The basic need is for clarification, particularly in relation to matters which did not exist or were not subjects of public policy in 1867. Both Parliament and the provincial legislatures should have more specified powers.

Section 93 of the BNA Act should be reconfirmed.

With regard to other powers, a revised version of Sections 91 and 92 of the BNA Act follows, by way of example:

Section 91

It shall be lawful for the Queen, by and with the consent of the House of Commons. to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated; that is to say—

1. the public debt and property
2. the regulation of trade and commerce
3. the raising of money by any mode or system of taxation
4. the borrowing of money on the public credit
5. unemployment insurance
6. postal service
7. the census and statistics
8. the armed forces and defense
9. the fixing of and providing for the salaries and allowances of civil and other offices of the government of Canada
10. navigation, shipping, and aids to navigation, including canals
11. quarantine and the establishment and maintenance of marine hospitals
12. seacoast and inland fisheries
13. railways, other than municipal passenger railways which operate exclusively on or under municipal streets and roads
14. aeronautics and air transportation
15. all works and undertakings connecting two or more provinces, or connecting any province with a foreign country, including for example but not so as to restrict the generality of the foregoing terms communications, pipelines, electric power lines, highway vehicles operating in regular service for hire, ships, boats and ferries

[Page A:50]

16. currency and coinage, including the issue of paper money
17. banking and the incorporation of banks including savings banks
18. weights and measures
19. bills of exchange and promissory notes
20. interest
21. legal tender
22. bankruptcy and insolvency
23. patents of invention and discovery
24. copyrights
25. the aboriginal peoples of Canada, and lands reserved for them
26. naturalization and aliens
27. regulation of the environment on an international basis
28. the control of radioactive materials
29. marriage and divorce
30. the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters
31. the establishment, maintenance and management of penitentiaries and any matters coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the provinces.

Section 92

In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated; that is to say—

1. the amendment from time to time of the constitution of the province, except as provided for in this Act

2. taxation within the province in order to raise money for provincial purposes, except that no province shall impose a tax on the import or export of any goods or commodities into or from the province

3. the borrowing of money on the sole credit of the Province

4. the establishment and tenure of provincial offices and the appointment and payment of provincial offices

5. the management and sale of the public lands and national revenue belonging to the province

6. the establishment, maintenance and management of public and reformatory prisons in and for the province

7. the establishment, maintenance and management of hospitals, asylums, charities and eleemosynary institutions in and for the province, other than marine hospitals

8. municipal institutions in the province

[Page A:51]

9. shop, saloon, tavern and other licenses in order to raise revenue for provincial, local or municipal purposes

10. works and undertakings within the province, other than those expressly assigned to the jurisdiction of Parliament in section 91 of this Act

11. the incorporation of companies with provincial objects

12. family law, including the solemnization of marriage in the province

13. property and civil rights in the province

14. the protection of the environment in the province

15. juvenile delinquency

16. housing

17. public health within the province

18. social services within the province

19. manpower training

20. communications within the province

21. the administration of justice within the province, including the constitution, maintenance and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts

23. generally all matters of a merely local or private nature in the province.

Declaratory Power

The federal declaratory power is obviated by the above clarification of jurisdiction.

Concurrent Powers

Agriculture and immigration would remain concurrent jurisdictions with federal paramountcy. Regulation of foreign investment should be added to this category.

Pensions and survivors benefits would remain concurrent jurisdictions with provincial paramountcy.

While the foregoing proposals are not exhaustive, they do respond to the most pressing constitutional issues and they fill the moderate gap between the extreme represented by the Alberta provincial Conservatives and the federal Liberals.

They intended to represent the vast majority of Canadians who truly wish to strengthen the Canadian national identity without giving up that degree of provincial autonomy essential to the achievement of regional aspirations.

These proposals give primacy to provincial ownership and control in the crucial area of natural resources, while recognizing that a very real national interest exists and must be

[Page A:52]

represented in emergency powers at the federal level. Without this there is, quite simply, no Canada.

Nevertheless, the record of recent federal governments on the matter of respect for provincial rights does not engender confidence. For this reason, it is essential that emergency powers which overrule provincial paramountcy should only be used after a majority of provinces concur, hence the need for the Council of the Provinces. And this only after a House of Commons, revamped to reflect more accurately the different regions of the country, has so determined.

Finally, the question of which issues constitute matters of “compelling national interest” will also be subject to agreement both by Parliament and by the Council of the Provinces.

These safeguards are adequate to meet the task of protecting provincial rights from illegitimate erosion and intrusion. Those who would suggest otherwise should be challenged to present their vision of a viable national government in this country. The Lougheed government, for one, has yet to comply with this fundamental requirement.

WITNESSES

Other Issues: