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 53 (4 February 1981)


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Date: 1981-02-04
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 53 (4 February 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 53

Wednesday, February 4, 1981

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.


Minutes of Proceedings and Evidence
of the Special Joint Committee of
the Senate and of
the House of Commons on the

Constitution of Canada


RESPECTING:

The document entitled “Proposed
Resolution for a Joint Address
to Her Majesty the Queen respecting
the Constitution of Canada”
published by the Government on
October 2, 1980


APPEARING:

The Honourable Jean Chrétien,
Minister of Justice and
Attorney General of Canada

WITNESSES:

(See back cover)

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


[Page 2]

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

Joint Chairmen:
Senator Harry Hays, P.C.
Serge Joyal, M.P.

Representing the Senate:

Senators:

Asselin
Austin
Frith
Grosart
Lapointe
Petten
Rousseau
Steuart
Tremblay—10

Representing the House of Commons:

Messrs.

Beatty
Campbell (Miss) (South West Nova)
Bockstael
Broadbent
Corbin
Côté
Epp
Fraser
Henderson
Lapierre
McDermid
McGrath
McRae
Nystrom—15

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

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

On Wednesday, February 4, 1981:

Mr. Fraser replaced Mr. Wright;
Mr. McGrath replaced Mr. Hnatyshyn;
Mr. Crombie replaced Mr. Friesen;
Mr. Beatty replaced Mr. Hawkes;
Mr. Henderson replaced Mr. Mackasey;
Mr. McDermid replaced Mr. Crombie;
Mr. Mackasey replaced Mr. Henderson;
Mr. Allmand replaced Mr. Tobin;
Mr. Broadbent replaced Mr. Robinson (Burnaby);
Mr. McRae replaced Mr. Mackasey;
Mr. Henderson replaced Mr. Allmand;

[Page 3]

Mr. Hawkes replaced Mr. McGrath;
Mr. McGrath replaced Mr. Hawkes;
Mrs. Côté replaced Mr. Irwin

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

On Wednesday, February 4, 1981:

Senator Connolly replaced Senator Molgat;
Senator Steuart replaced Senator Lucier;
Senator Asselin replaced Senator Donahoe;
Senator Grosart replaced Senator Roblin;
Senator Roblin replaced Senator Grosart;
Senator Frith replaced Senator Connolly.


CORRIGENDUM

MINUTES OF PROCEEDINGS:

Issue No. 48

Page 48:4

(A) Delete the line in the English text which reads as follows:

“The Committee resumed consideration of the motion of Mr. Corbin” and substitute the following:

“The Committee resumed consideration of the motion, as amended, of Mr. Corbin”

(B) Delete the line in the English text which reads as follows:

“colour religion, sex or age.”

and substitute the following:

“colour, religion, sex or age or mental or physical disability.”

Page 48:7

Delete the line in the English text which reads as follows:

“The question being put on the amendment of Mr. Corbin, it”

and substitute the following:

“The question being put on the amendment, as amended, of Mr, Corbin, it”

[Page 4]

ORDER OF REFERENCE

Wednesday, February 4, 1981

ORDERED-That, notwithstanding any previous Order, the Special Joint Committee on the Constitution of Canada shall complete its work and make its final report not later than February 13, 1981; and that a Message be sent to the Senate to acquaint Their Honours thereof.

ATTEST

C.B. KOESTER

The Clerk of the House of Commons


[Page 5]

MINUTES OF PROCEEDINGS

WEDNESDAY, FEBRUARY 4, 1981
(99)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 3:42 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Asselin, Austin, Connolly, Hays, Lapointe, Petten, Roblin, Rousseau and Steuart.

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

In Attendance: From the Research Branch of the Library of Parliament: Mr. John McDonough, Researcher.

Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister and Dr. B. L. Strayer, Assistant Deputy Minister, Public Law.

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 Committee resumed consideration of the motion of Mr. Irwin that Clause 38 of the proposed Constitution Act, 1980 is amended by

(a) Striking out lines 45 and 46 on page 10 and substituting the following:

“38. (1) the legislative assemblies of seven or more provinces that”; and

(b) Striking out lines 14 to 33 on page 11 and substituting the following:

“(3) Where copies of an alternative have been deposited as provided by subsection (2) and, on the day that is two years after this Act, except Part V, comes into force, at least seven copies remain deposited by provinces that have, according to the then latest general census, combined populations of at least eighty per cent of the population of all the provinces, the government of Canada shall cause a referendum to be held within two years after that day to determine whether

(a) paragraph 41(1)(b) or any alternative thereto approved by Parliament and deposited with the Chief Electoral Officer at least ninety days prior to the day on which the referendum is held, or

(b) the alternative proposed by the provinces, shall be adopted.”

[Page 6]

By unanimous consent, the amendment was amended, by deleting the word “Parliament” therein and substituting the following:

“resolutions of the Senate and House of Commons”

After debate, the question being put on the amendment, as amended, it was agreed to on the following division:

YEAS:

The Honourable Senators

Austin
Connolly
Hays
Lapointe
Petten
Rousseau
Steuart

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Henderson
Irwin
Lapierre
Tobin—14

NAYS:

The Honourable Senators

Asselin
Roblin

Messrs.

Beatty
Epp
Fraser
McDermid
McGrath
Nystrom
Robinson (Burnaby)—9

Clause 38, as amended, carried, on division.

Clause 39 carried, on division.

On Clause 40 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 40 of the proposed Constitution Act, 1980 be amended by striking out lines 45 to 48 on page 11 and lines 1 to 4 on page 12 and substituting the following:

“40. (1) Every citizen of Canada has, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, the right to vote in a referendum held under subsection 38(3).

(2) If a referendum is required to be held under subsection 38(3), a Referendum Rules Commission shall forthwith be established by commission issued under the Great Seal of Canada consisting of

(a) the Chief Electoral Officer or” Canada, who shall be chairman of the Commission;

(b) A person appointed by the Governor General in Council; and

(c) A person appointed by the Governor General in Council

[Page 7]

(i) On the recommendation of the governments of a majority of the provinces, or

(ii) if the governments of a majority of the provinces do not recommend a candidate within thirty days after the Chief Electoral Officer of Canada requests such a recommendation, on the recommendation of the Chief Justice of Canada from among persons recommended by the governments of the provinces within thirty days after the expiration of the first mentioned thirty day period or, if none are so recommended, from among such persons as the Chief Justice considers qualified.

(3) A Referendum Rules Commission shall cause rules for the holding of a referendum under subsection 38(3) approved by a majority of the Commission to be laid before Parliament within sixty days after the Commission is established or, if Parliament is not then sitting, on any of the first ten days next thereafter that Parliament is sitting.

(4) Subject to subsection (1) and taking into consideration any rules approved by a Referendum Rules Commission in accordance with subsection (3), Parliament may enact laws respecting the rules applicable to the holding of a referendum under subsection 38(3).

(5) If Parliament does not enact laws respecting the rules applicable to the holding of a referendum within sixty days after receipt of a recommendation from a Referendum Rules Commission under subsection (4), the rules recommended by the Commission shall forthwith be brought into force by proclamation issued by the Governor General under the Great Seal of Canada.

(6) Any period when Parliament is prorogued or dissolved shall not be counted in computing the sixty day period referred to in subsection (5).

(7) Subject to subsection (1), rules made under this section have the force of law and prevail over other laws made under the Constitution of Canada to the extent of any inconsistency.”

After debate, the question being put on the amendment, it was agreed to on the following show of hands: YEAS: l3; NAYS: 7.

Clause 40, as amended, carried, on division.

On Clause 46 of the proposed Constitution Act, 1980

Mr. Irwin moved,—that Clause 46 of the proposed Constitution Act, 1980 be amended by striking out lines 4 to 11 on page l4 and substituting the following:

“46. (1) Every citizen of Canada has, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, the right to vote in a referendum held under section 42.

(2) Where a referendum is to be held under section 42, a Referendum Rules Commission shall forthwith be established by commission issued under the Great Seal of Canada consisting of

[Page 8]

(a) The Chief Electoral Officer of Canada, who shall be chairman of the Commission;

(b) A person appointed by the Governor General in Council; and

(c) A person appointed by the Governor General in Council

(i) On the recommendation of governments of a majority of the provinces, or

(ii) If the governments of a majority of the provinces do not recommend a candidate within thirty days after the Chief Electoral Officer of Canada requests such a recommendation, on the recommendation of the Chief Justice of Canada from among persons recommended by the governments of the provinces within thirty days after the expiration of the first mentioned thirty day period or, if none are so recommended, from among such persons as the Chief Justice considers qualified.

(3) A Referendum Rules Commission shall cause rules for the holding of a referendum under section 42 approved by a majority of the Commission to be laid before Parliament within sixty days after the Commission is established or, if Parliament is not then sitting, on any of the first ten days next thereafter that Parliament is sitting.

(4) Subject to subsection (1) and taking into consideration any rules approved by a Referendum Rules Commission in accordance with subsection (3), Parliament may enact laws respecting the rules applicable to the holding of a referendum under section 42.

(5) If Parliament does not enact laws respecting the rules applicable to the holding of a referendum within sixty days after receipt of a recommendation from a Referendum Rules Commission under subsection (4), the rules recommended by the Commission shall forthwith be brought into force by proclamation issued by the Governor General under the Great Seal of Canada.

(6) Any period when Parliament is prorogued or dissolved shall not be counted in computing the sixty day period referred to in subsection (5).

(7) Subject to subsection (1), rules made under this section have the force of law and prevail over other laws made under the Constitution of Canada to the extent of any inconsistency.”

Mr. Nystrom moved,—that the proposed amendment to clause 46 of the proposed Constitution Act, 1980 is amended by striking out sub-clauses (2) to (7) and substituting the following:

“(2) Subject to subsection (1), the Governor General may, by proclamation issued under the Great Seal of Canada, on the recommendation of a Referendum Rules Commission established under this section, make rules applicable to the holding of a referendum under section 42.

(3) Where a referendum is to be held under section 42, a Referendum Rules Commission shall

(a) forthwith be established to recommend the rules applicable to the holding of that referendum; and

[Page 9]

(b) make its recommendation by majority decision, within sixty days after its establishment.

(4) A Referendum Rules Commission shall consist of

(a) The Chief Electoral Officer of Canada, appointed by resolution of the House of Commons, who shall be chair-man of the Commission;

(b) A person appointed by the Governor General in Council;

(c) A person appointed by the Governor General in Council;

(i) on the recommendation of the governments of a majority of provinces, or

(ii) if the governments of a majority of provinces do not recommend a person within sixty days after the Chief Electoral Officer requests such a recommendation, on the recommendation of the Chief Justice of Canada from among persons recommended by the governments of the provinces within thirty days after the expiration of that sixty day period, or, if none is so recommended, from among persons knowledgeable in the holding of elections.

(5) Rules made under this section article:

(a) May include penalties for the contravention thereof;

(b) Have the force of law; and

(c) Prevail over other laws, except the Canadian Charter of Rights and Freedoms, to the extent of any inconsistency.”

After debate, the question being put on the sub amendment, it was negatived on the following division:

YEAS:

Messrs.

Nystrom
Robinson (Burnaby)—2

NAYS:

The Honourable Senators

Asselin
Austin
Connolly
Hays
Lapointe
Petten
Roblin
Rousseau
Steuart

Messrs.

Bockstael
Campbell (Miss)
(South West Nova)
Beatty
Corbin
Epp
Irwin
Lapierre
Mackasey
McDermid
McGrath
Tobin—20

After further debate, the question being put on the amendment it was agreed to on the following show of hands: YEAS: 13; NAYS: 9.

[Page 10]

Clause 46, as amended, carried, on division.

On Clause 47 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 47 of the proposed Constitution Act, I980 be amended by renumbering clause 47 as sub clause 47(1) and adding immediately after line 22 on page 14 the following:

“(2) The procedures prescribed by section 4l or 42 do-not apply in respect of an amendment referred to in section 43.”

After debate, the question being put on the amendment, it was agreed to.

Mr. McGrath moved that the proposed Constitution Act, 1980 be amended by

(a) Adding thereto immediately after clause 47 the following clause:

“48. Notwithstanding section 47, and amendment to section 3 of the Constitution Act, 1871 and an amendment to this section may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province”; and

(b) Renumbering the subsequent clauses accordingly

After debate, the question being put on the amendment, it was negatived on the following division:

YEAS:

The Honourable Senators

Asselin
Roblin
Tremblay

Messrs.

Epp
Beatty
Fraser
McDermid
McGrath
Nystrom
Robinson (Burnaby)—10

NAYS:

The Honourable Senators

Austin
Connolly
Hays
Lapointe
Petten
Rousseau
Steuart

Messrs.

Allmand
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Irwin
Lapierre
Mackaey—14

Clause 47, as amended, carried.

On clause 48 of the proposed Constitution Act, 1980

[Page 11]

Mr. Epp moved,—That Clause 48 of the proposed Constitution Act, 1980 be amended by striking out line 26 on page 14 and substituting the following: “government of Canada or the”.

After debate, by unanimous consent, the amendment was withdrawn.

Clauses 48 and 49 carried.

On Clause 50 of the proposed Constitution Act, 1980

Mr. Robinson (Burnaby) moved that Clause 50 of the proposed Constitution Act, 1980 be amended by

(a) Striking out line 31 on page 14 and substituting the following:

“50.(1) Subject to subsection (2), an amendment to the Constitution of”; and

(b) Adding immediately after line 10 on page 5 the following:

“(2) The procedure prescribed by section 42 shall not be used in respect of an amendment to the Canadian Charter of Rights and Freedoms.”

After debate, the question being put on the amendment, it was negatived on the following division:

YEAS:

The Honourable Senators

Asselin
Roblin
Tremblay

Messrs.

Beatty
Epp
McDermid
McGrath
Nystrom
Robinson (Burnaby)—9

NAYS:

The Honourable Senators

Austin
Connolly
Hays
Lapointe
Petten
Rousseau
Steuart

Messrs.

Allmand
Bockstael
Campbell (Miss) (South West Nova)
Corbin
Irwin
Lapierre
Mackasey—14

Mr. Epp moved that Clause 50 of the proposed Constitution Act, 1980 be amended by

(a) Striking out line 34 on page 14 and substituting the following:

“procedure prescribed by section 41:”;and

(b) Striking out paragraph 50(a) on page 14 and substituting the following:

[Page 12]

“(a) the office of the Queen and Her status as head of state of Canada and of the provinces and the office of the Governor General and the Lieutenant Governor of a province;”

At 5:59 o’clock p.m., the Committee adjourned to the call of the Chair:

EVENING SITTING
(100)

The Special Joint Committee on the Constitution of Canada met this day at 8:18 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The honourable Senators Asselin, Austin, Frith, Grosart, Hays, Lapointe, Petten, Rousseau, Steuart and Tremblay.

Representing the House of Commons: Messrs. Beatty, Bockstael, Broadbent, Miss Campbell (South West Nova), Mr. Corbin, Mrs. Côté, Messrs. Epp, Fraser, Hawkes, Henderson, Irwin, Joyal, Lapierre, McDermid, McGrath, McRae and Nystrom.

In attendance: from the Research Branch of The Library of Parliament: Messrs. Paul Martin and John McDonough, Researchers.

Appearing: The Honourable Jean Chrétien, Minister of Justice and Attorney General of Canada

Witnesses: From the Department of Justice: Mr. Roger Tassé, Deputy Minister and Dr. B. L, Strayer, Assistant Deputy Minister, Public Law.

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 Committee resumed consideration of the motion of Mr. Epp that Clause 50 of the proposed Constitution Act 1980 be amended by

(a) Striking out line 34 on page 14 and substituting the following:

“procedure prescribed by section 41:”; and

(b) Striking out paragraph 50(a) on page 14 and substituting the following:

“(a) the office of the Queen and Her status as head of state of Canada and of the provinces and the office of the Governor General and the Lieutenant Governor of a province;”

After debate, the question being put on the amendment, it was negatived on the following division:

YEAS:

The Honourable Senators

Asselin
Grosart
Tremblay

[Page 13]

Messrs.

Beatty
Epp
Hawkes
McDermid—7

NAYS:

The Honourable Senators

Austin
Frith
Hays
Lapointe
Petten
Rousseau
Steuart

Messrs.

Bockstael
Broadbent
Campbell (Miss) (South West Nova)
Corbin
Henderson
Irwin
Lapierre
McRae
Nystrom—16

Mr. Irwin moved,—That Clause 50 of the proposed Constitution Act, 1980 be amended by

(a) Striking out lines 35 to 37 of the French version on page 14 and substituting the following:

“a) la charge de Reine, celle de gouverneur général et celle de lieutenant-gouverneur;”

(b) Striking out lines 1 and 2 on page 15 and substituting the following: “Senate;

(f) The method of selecting Senators and the residence qualifications of Senators;”; and

(c) relettering the subsequent paragraphs accordingly.

After debate, the question being put on the amendment, it was agreed to on the following show of hands: YEAS: 15; NAYS: 4.

Clause 50, as amended, carried, on division.

On Clause 51 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 51 of the proposed Constitution Act, 1980 be amended by

(a) Renumbering clause 51 as subclause 51(1); and

(b) Striking out lines 15 to 17 on page 15 and substituting the following:

“2) Act, 1949 referred to in item 22 of Schedule I to this Act and Parts III and IV of this Act are repealed.

(2) When Parts III and IV of this Act are repealed, this section may be repealed and this Act may be renumbered consequential upon the repeal of those Parts and this section by proclamation issued by the Governor General under the Great Seal of Canada.”

After debate, the question being put on the amendment, it was agreed to.

Clause 51, as amended, carried.

Mr. Broadbent moved,—that the proposed Constitution Act, 1980 be amended by

[Page 14]

(a) Adding immediately after line l7 on page 15 the following headings and sections:

“PART VI

AMENDMENT TO THE
CONSTITUTION ACT, 1867

52. (1) The Constitution Act, 1867 (formerly named the British North America Act, 1867) is amended by adding immediately after section 92 the following heading and section:

Non-Renewable Natural Resources, Forestry Resources and Electrical Energy

92A. (1) in each province, the legislature may exclusively make laws in relation to

(a) exploration for non-renewable natural resources in the province,

(b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; and

(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy,

whether or not such production is exported in whole or in part from the province.

(2) In each province, the legislature may make laws in relation to the export from the province of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

(3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.

(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of

(a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and

(b) sites and facilities in the province for the generation of electrical energy and the production therefrom,

whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

[Page 15]

(5) The expression “primary production” has the meaning assigned by the Sixth Schedule.

(6) nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section.”

53. The said Act is further amended by adding the following Schedule:

“THE SIXTH SCHEDULE

PRIMARY PRODUCTION FROM
NON-RENEWABLE RESOURCES AND
FORESTRY RESOURCES

1. For the purposes of section 92A of this Act,

(a) production from a non-renewable resource is primary production therefrom if

(i) it is in the form in which it exists upon its recovery or severance from its natural state, or

(ii) it is a product resulting from processing or refining the resource, and is not a manufactured product or a product resulting from refining crude oil, refining upgraded heavy crude oil, refining gases or liquids derived from coal or refining a synthetic equivalent of crude oil; and

(b) production from a forestry resource is primary production therefrom if it consists of sawlogs, poles, lumber, wood chips, sawdust or any other primary wood product, or wood pulp, and is not a product manufactured from wood.””;and

(b) renumbering Part VI as Part VII, renumbering all subsequent sections accordingly and making such other changes in numbering as are consequential thereto.

After debate, Mr. Corbin moved,—that the proposed amendment to the proposed Constitution Act, 1980 adding a new section 52 be amended by

(a) striking out the portion of subsection 92A (1) following paragraph (c) that reads as follows:

“whether or not such production is exported in whole or in part from the provinces.”; and

(b) adding to subsection 92A (2) immediately after the words “make laws in relation to the export from the province” the following words:

“to another part of Canada”

By unanimous consent, Mr. McGrath moved,—That the proposed amendment to clause 51 of the proposed Constitution Act, 1980 adding Part VI be amended by adding immediately after the proposed new clause 92A of the Constitution Act, 1867 the following:

“92B. All land, mines, minerals and royalties within and arising from the seabed and subsoil of the internal waters, the territorial sea and the continental shelf adjacent or appurtenant to any province, all economic or proprietary rights in the non-renewable natural resources thereof, and

[Page 16]

all rights to produce energy from the waters, currents and tides thereof, shall belong to the adjacent province.

92C. (1) the area adjacent or appurtenant to a province shall, as between adjacent or opposite provinces, be that area within lines drawn by agreement in accordance with the principles of international law.

(2) Where a dispute arises between provinces as to which province is the adjacent province for the purposes of this part and no agreement can be reached between them within a reasonable period of time, the provinces concerned shall resort to arbitration, one member of the Arbitration Board being chosen by each province concerned and one other, or two others if there is an even number of provinces concerned, being chosen either by agreement of the members of the Board chosen by the provinces or, failing agreement, by the Chief Justice of Canada.

92D. For the purposes of this Part, “non-renewable natural resources” includes the non-renewable natural resources of the seabed and subsoil of the internal waters, territorial sea and continental shelf of the adjacent province and all rights of energy production from the waters, currents and tides thereof.”

After debate, at 10:30 o’clock p.m., the Committee adjourned to the call of the Chair.

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee


[Page 17]

EVIDENCE

(Recorded by Electronic Apparatus)
Wednesday, February 4, 1981

[Text]

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

We would like to resume consideration of the proposed amendment as moved by Mr. Irwin from the government party.

It is an amendment in relation to Clause 38.

On Clause 38—Provincial alternative procedure.

The Joint Chairman (Mr. Joyal): Last night when we adjourned, I had the honourable Senator Roblin on a question to the honourable the Minister of Justice in relation to the proposed amendment.

The honourable Senator Roblin.

But before Senator Roblin begins, I think I should point out that we are bound by the rules of the House of Commons and when this Committee is sitting I cannot allow pictures to be taken, unless prior and proper arrangements have been made.

Those, of course, are the rules of the House of Commons. I have to apply them until I am informed that they have been changed.

Senator Roblin.

Senator Roblin: Mr. Chairman, I am rather impressed that anyone should want to take our pictures.

Assuming that they do, I acknowledge the correctness of your ruling.

I would like to ask the Minister a question with respect to the capacity of the provinces to suggest an alternative amending formula. It is bound up with the question of when is an amending formula net an amending formula-the idea that we have the amending formula proper and then a sort of secondary amending formula which we are calling a referendum.

Supposing the provinces were to say, in respect of the proposition that they wanted to put to the people of Canada, that it consisted of such and such a pattern without a referendum factor attached, would the federal government agree that a proposition could be put to the people for their vote?

Hon. Jean Chrétien (Minister of Justice): I do not know. I would reply to that question if asked. But at this moment, in relation to the amending formula, they can make an offer on the amending formula. The referendum is a deadlock-breaking mechanism.

Senator Roblin: Well, that is very important, because you cannot really look at the amending formula without considering the deadlock-breaking mechanism. It is all part and parcel of one thing.

The Minister left me last night with a clear implication that the provinces would not have the right to present any proposal to the people with respect to the total amending formula, only the pattern, be it Victoria, Vancouver or whatever; and that a referendum was excluded from the reference.

[Page 18]

Now, I want to be clear about this, because I believe the Minister can tell me, without any reference to probabilities, whether a reference to the referendum would be excluded in accordance with the terms of this legislation.

Mr. Chrétien: It will be excluded.

Senator Roblin: So, if the provinces wanted to bind them selves to an amending formula of whatever character, but without the referendum provision attached, the position of the government is that they would not allow that proposition to be presented to the electors of Canada for their decision?

Mr. Chrétien: Unless the federal government agrees. But, according to the law, they are not obliged to.

Senator Roblin: The question about the federal government agreeing is hypothetical. I agree with the Minister on that point. I am willing to regard that as completely hypothetical.

So I take it that your answer is “no”, the question of a referendum as a permanent part of the amending formula is excluded from the reference that the provinces may make to the people of Canada.

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable Senator Roblin.

Las night I had the honourable Jake Epp who indicated an intention to put some questions to the honourable Minister of Justice in relation to the proposed amendment.

I would like to invite the honourable Jake Epp to this point to go on.

Mr. Epp: Thank you, Mr. Chairman. I do not propose to pursue the matter as of last night. The point I was making last night l have checked and it remains; that is, through Clause 38, you could change substantially Clause 41 and only retain for amendment purposes a referendum in Clause 42. I just wanted to make sure that everybody understood that.

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

In that I have no more speakers on the proposed amendment, I think I will call the vote.

Mr. Epp: Mr. Chairman, may we have a recorded vote?

The Joint Chairman (Mr. Joyal): Yes. As requested, there will be a recorded vote on the proposed amendment.

Mr. Irwin: Mr. Chairman, it s been brought to my attention that in Clause 38(3) (a) the third line, it would be better drafting to remove the word “Parliament” and insert “resolutions of the Senate and of the House of Commons” to conform with drafting throughout the document.

I understand that the parties have been polled on this and that there is agreement. If there is not, I would withdraw the suggestion. I need unanimous consent on that change.

Some hon. Members: Agreed, agreed.

Senator Roblin: Mr. Chairman, would the honourable member kindly restate the point. I missed it.

The Joint Chairman (Mr. Joyal): I am sorry, but there is a lot of noise around the table at this point, and it is very

[Page 19]

difficult to work in such a context where there are so many amendments and sub amendments and I would request the assistance and co-operation of all those who work either or behind or around the table, if possible, when such technical questions are put or when the vote is called, to help us to work in the proper context.

The suggestion, as made by Mr. Irwin, honourable Senator Roblin, was to make the correction that does not change the meaning of the proposed amendment. It is on the third line of paragraph (a) of subs clause (3) of the proposed English text.

I will read the text and then suggest to you the correction.

Paragraph (a) reads:

(a) Clause 41(1)(b) or any alternative thereto approved by Parliament

The suggestion would be “approved by a resolution of the Senate and of the House of Commons”.

[Translation]

Of course, we would have to make the change in the other version, which would become “approved by a resolution of the Senate and of the House of Commons”.

[Text]

Amendment agreed to: Yes, 14; Nays, 9.

The Joint Chairman (Mr. Joyal): I would like to come back on clause 38 as amended.

Clause 38 as amended agreed to.

On clause 39—Coming into force of Part V where referendum held.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 39.

The Chair has not been informed of any proposed amendment. If there is no question or intervention—Mr. Nystrom?

Mr. Nystrom: Mr. Chairman, I would just like to raise a question which I did raise a long time ago on Clause 39. I have no solution to offer for it whatsoever; therefore, we have not proposed any amendment.

But I think the Minister or his officials a couple of months ago said they would look into the question, namely that of the possibility of a national referendum to choose an amending formula, and the fact that this could be approved by a minority of persons voting in a referendum.

The Minister made some excellent arguments about what alternatives could we come up with. Well, I have come up with none. I am just wondering if he has come up with any.

The reason I ask that is that national referenda could be, of course, very divisive. We have had one on conscription, where the French-speaking Canadians voted one way and the Anglophones voted the other way.

It is possible that you could have an amending formula conceivably approved in this country, if one wants to be ridiculous, where you could have a “yes” vote in Ontario and a “no” vote in all the other provinces, because Ontario has 36 percent of the people. Therefore, you could conceivably have an amending formula approved by only one province and

[Page 20]

opposed by nine provinces because of the simple majority rule; or approved by English-Canadians and opposed by French-Canadians and so on, and so forth. I am just wondering whether the Minister or his officials have had an opportunity to look at some other option or are we stuck with this?

Mr. Chrétien: Well, we are like you; we have no other alternative.

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

In that there are no more speakers on that clause, I will call the vote.

Clause 39 agreed to.

On Clause 40—Rules for referendum.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 40. On that clause there is one amendment; it is a very complex and long amendment, and is identified as G-37, Clause 40, pages 11 and 12.

[Translation]

This amendment is identified as G-37, clause 40, pages 11 and, 12.

It is a rather complex and long amendment.

[Text]

If some honourable members do not have a copy of the proposed amendment, I will make sure that the Clerks provide them with one.

I would like to invite Mr. Irwin to move the amendment in the usual way.

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

I wish to move that Clause 40 of the proposed constitution act, 1980 be amended by striking out lines 45 to 48 on page 1l and lines 1 to 4 on page 12 and substituting the following:

Right to Vote

40. (1) Every citizen of Canada has, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, the right to vote a referendum held under Clause 38(3).

Establishment of Referendum Rules Commission

(2) If a referendum is required to be held under Clause 38(3), a Referendum Rules Commission shall forthwith be established by commission issued under the Great Seal of Canada consisting of

(a) the Chief Electoral Officer of Canada, who shall be chairman of the Commission;

(b) a person appointed by the Governor General in Council; and

(c) a person appointed by the Governor General in Council

(i) on the recommendation of the governments of a majority of the provinces, or

(ii) if the governments of a majority of the provinces do not recommend a candidate within thirty days after the Chief Electoral Officer of Canada requests such a recommendation, on the recommendation of

[Page 21]

the Chief Justice of Canada from among persons recommended by the governments of the provinces within thirty days after the expiration of the first mentioned thirty day period or, if none are so recommended, from among such persons as the Chief Justice considers qualified.

Duties of Commission

(3) A Referendum Rules Commission shall cause rules for the holding of a referendum under Clause 38(3) approved by a majority of the Commission to be laid before Parliament within sixty days after the Commissions established or, if Parliament is not then sitting, on any of the first ten days next thereafter that Parliament is sitting.

Rules for Referendum

(4) Subject to Clause (1) and taking into consideration any rules approved by a Referendum Rules Commission in accordance with Clause (3), Parliament may enact laws respecting the rules applicable to the holding of a referendum under Clause 38(3).

Proclamation

(5) If Parliament does not enact laws respecting the rules applicable to the holding of a referendum within sixty days after receipt of a recommendation from a Referendum Rules Commission under sub clause (4), the rules recommended by the Commission shall forthwith be brought into force by proclamation issued by the Governor General under the Great Seal of Canada.

Computation of Period

(6) Any period when Parliament is prorogued or dissolved shall not be counted in computing the sixty day period referred to in subclause (5)

Rules to Have Force of Law

(7) Subject to sub clause (1), rules made under this section have the force of law and prevail over other laws made under the constitution of Canada to the extent of any inconsistency.

Mr. Corbin.

[Translation]

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

Mr. Corbin: I move.

That Clause 40 of the proposed Constitution Act, 1980 be amended by striking out lines 45 to 48 on page 11 and lines l to 4 on page 12 and substituting the following;

“40(1) every citizen of Canada has, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, the right to vote in a referendum held under Clause 38(3).

(2) If a referendum is required to be held under Clause 38(3), a Referendum Rules Commission shall forthwith be established by commission issued under the Great Seal of Canada consisting of

[Page 22]

(a) the Chief Electoral Officer of Canada, who shall be chairman of the Commission;

(b) a person appointed by the Governor General in Council; and,

(c) a person appointed by the Governor General in Council

(i) on the recommendation of the governments of a majority of the provinces, or

(ii) if the governments of a majority of the province do not recommend a candidate within thirty days after the Chief Electoral Officer of Canada requests such a recommendation, on the recommendation of the Chief Justice of Canada from among persons recommended by the governments; of the provinces within thirty days after the expiration of the first-mentioned thirty day period or, if none are so recommended, front among such persons as the Chief Justice considers qualified.”

(3) A Referendum Rules Commission shall cause rules for the holding of a referendum under Clause 38(3) approved by a majority of the Commission to be laid before Parliament within sixty days after the Commission is established or, if Parliament is not then sitting, on any of the first ten days thereafter that Parliament is sitting.

(4) Subject to Clause (1) and taking into consideration any rules approved by a Referendum Rules Commission in accordance with Clause (3), Parliament may enact laws respecting the rules applicable to the holding of a referendum under Clause 38(3).

(5) If Parliament docs not enact laws respecting the rules applicable to the holding of a referendum within sixty days after receipt of a recommendation from a Referendum Rules Commission under subclause (4), the rules recommended by the Commission shall forthwith be brought into force by proclamation issued by the Governor General under the Great Seal of Canada.

(6) Any period when Parliament is prorogued or dissolved shall not be counted in computing the sixty day period referred to in subclause (5).

(7) Subject to subclause (1), rules made under that section have the force of law and prevail over other law made under the Constitution of Canada to the extent of any inconsistency.

Thank you.

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

[Text]

Mr. Epp: Mr. Chairman, I would like to ask the minister a number of questions on Clause 40.

As he knows, this clause is an attempt to bring about some formation of rules and also a referendum rules commission in terms of the referendum.

[Page 23]

Has he had endorsation from the provinces, and if so, how many and which ones that now support this amendment?

Mr. Chrétien: This amendment has been proposed some weeks ago in front of this Committee and it was a suggestion that was mentioned substantially in the presentation of Premier Blakeney, and we have not received any representation that I know of, positively or negatively, from any provincial government.

Mr. Epp: You have had no response, then, from any of them?

Mr. Chrétien: On that issue I have not seen any document arguing against or for it from any province.

Mr. Epp: Well, the problem was, as you will recall, Premier Blakeney when he was before this Committee, his argument was, first of all, there could not be an instant referendum. That is now being taken care of, at least there must be the 12 month delay. Premier Davis gave the same point of view in public statements that…

Mr. Chrétien: I should have mentioned Mr. Davis, too.

Mr. Epp: Those two I know specifically felt that you could not have what is referred to as the instant referendum.

You have a three person Commission that you are going to establish. The chairman is the chief electoral officer and then an appointee appointed by the federal government and one by the provinces.

How do you foresee this rules commission, will they have the opportunity or in fact have the power to draft the question?

Mr. Chrétien: The way I see it, the procedure is the Parliament of Canada will have voted the question, it would be a resolution of the Parliament of Canada a year before that will be calling for an amendment to the Canadian constitution.

Suppose we want to amend Section 92 of the British North America Act. The Government of Canada will come in front the entire Parliament and would say: we would like to change that section for another section. There would be a debate and it will be there and the governments of the provinces will have a year to reply. And if there is a call for a referendum, the question will be known by the vote of the House of Commons and it has to be in relation to the amendment to the constitution.

It is not a rule of referendum that would permit the government to have a referendum on anything, but it is in relation to the amendment to the constitution.

Of course, we arc saying the same discussion will come later on but this is in relation to Victoria or our proposition and theirs. But I guess that your argument would apply more appropriately to…

Mr. Epp: Clause 46.

Mr. Chrétien: The permanent referendum.

Mr. Epp: I am still worried, though, about the drafting of the wording. The last experience Canadians have had, while

[Page 24]

most of them did not have a direct vote as you did, Mr. Minister, in the last referendum held in Canada, there was a great debate. I am just being informed that maybe you did not have a direct vote either, there was a great debate about the 109 word resolution that not only was it too long but its very length obfuscated what was being asked and it should have been a direct question.

I would suggest that there was, and I am not trying to reflect on the referendum in Quebec on May 20 last, but there was no other provision in that referendum and I see no other provision in this referendum for anyone else other than the federal government to declare the wording, and surly if we are talking now about a federal state the idea to have as clear a wording as possible would be to the benefit of everyone rather titan have the power to use wording held by one side only.

Mr. Chrétien: The mechanism there is a year, the Canadian government placed in front of Parliament, the Senate and the House of Commons, a question. We debated and we voted. There is a year to debate. Of course it is presented by us in the House of Commons but it has to have a logical form because it has to be related to the amendment of the constitution.

I guess for the first referendum it is kind of a different thing; that is why my advisor tells me I should restrict my comments at this time, but perhaps if you can clarify it, we can.

So it will be a question put in front of parliament and a year later that question that has been put to the provinces will be put to the Canadian people.

Of course, it will be a question that we are putting first to the provinces.

Mr. Epp: But the provinces do not have any ability to change…

Mr. Chrétien: No, because we take the initiative.

Mr. Epp: Well, that is my point, Mr. Minister. You might change it after the provinces have put a lot of influence on you and you want to use that method, maybe you would have to refer it back to the House or the Senate but the fact remains that if the federal government decides to initiate it on its own, to pass it through parliament with its majorities in both houses, that the provinces in fact cannot influence the wording if you in fact do not agree; correct?

Mr. Chrétien: Yes, and I will tell you something: we have a Parliament of Canada and a government, we will have to take the responsibility for the nature of the question. I have to tell you from my little experience that the 109 word question in Quebec did not help the Quebec government because we had a lot of fun talking about the clarity of the question. Still today when I meet anybody who is strong on that issue I say: tell me, what was the question? It was not very clear so you pay a political price.

However, suppose that you have a discussion between the provinces and the federal government, suppose that they do not agree on the question, what do you do?

Mr. Epp: Well, I have an answer for that one.

[Page 25]

Mr. Chrétien: We are the Parliament of Canada and we take the responsibility as the parliament for all Canadians.

Mr. Epp: Mr. Minister, while you referred to the Quebec l09 word resolution, you have not dissuaded anyone that you yourself might someday not want a 109 word resolution?

Mr. Chrétien: I am telling you that it will be short and to the point.

Mr. Nystrom: 108.

Mr. Chrétien: We have to face our responsibility and the Parliament of Canada will vote on the question and if we are crazy enough to ask a crazy question, we will pay a big political price for it.

Mr. Epp: Mr. Chairman, I just want to point out…

Mr. Chrétien: And I am told that it is the amendment that has to be approved by referendum according to the text. Explain that, Mr. Tassé.

Mr. Tassé (Deputy Minister, Department of Justice): Well, we think, Mr. Chairman, that in effect looking at Clause 42, you would need to place the amendment to the people to get the approval of the people for the making of the amendment because Clause 42 says that an amendment to the constitution of Canada may be made by proclamation, and then it goes on. That has approved the making of the amendment. So if you read all of those words together I would think this clause requires that the actual amendment that is being proposed is in front of the people and that the vote is taking place on that particular amendment that has been approved by the Senate and House of Commons.

Mr. Epp: Mr. Tassé, I appreciate that comment, I think your interpretation is correct, that is why a guarantee of a short or long referendum question is quite academic.

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

Mr. Nystrom: The Minister said he would not be crazy enough to put a long question before the people and I am sure this Minister would not, but do not forget we are writing a constitution that binds people in the future, but that is really a discussion for Clause 46, right now we are on Clause 40 and this is just choosing between the two amending formulas, and my concern for the question is not as great here.

I want to commend the Minister on one thing: he has moved to have a referendum advisory commission. My concern, though, is that the policy of our caucus was that the commission should be a more neutral body, should have the authority to make the laws, to write the laws, to write the rules and that is where we differ, and your commission is advisory only and the relevant clause for…

Mr. Chrétien: It is more than advisory because they would prepare the rules and we can change it in Parliament, but with the delays we give to Parliament it is most likely that we will need a hell of a good reason to change it, and if we do not pass the legislation within 60 days, that becomes the law.

[Page 26]

The way Parliament works, 60 days is a very short period but in case the commission were to make a recommendation that was to be seen by the parliamentarians as not acceptable, that gives us a chance to have a second crack.

However, it is most likely that if they have a reasonable report we will not bother and it will become law. It is not only an advisory committee, it is more than that.

It is most likely that if they have a good recommendation, that we will not take the time of the House to approve or disapprove, we will just let it go.

Mr. Nystrom: Again, the Minister has answered my question, he says most likely we will take the recommendations and that is really my concern and again it is no reflection on the Minister but my relevant area of concern is Clause 40(4), it says that:

Subject to Subclause (1) and taking into consideration any rules approved by the referendum rules commission in accordance with subclause (3), Parliament may enact laws.

It is advisory really, and what I am saying is that if we are going to have a referendum choosing between a federal amending formula which is put up by the federal Parliament only one hand and a provincial amending formula put up by the provinces on the other hand, that the referee should be neutral; and even under the proposition that we are going to make on Clause 46 the referee would not be entirely neutral because we are going to recommend that the Chief Electoral Officer will be the Chairman, like you are here, and of course that is a federal appointee, and that one of the commissioners will be chosen by the federal parliament but the other commissioner will be chosen by the provinces; so really it is still two to one.

With that advantage I do not see any problem in giving this commission the real power to write the real rules, and I think that makes it more non-partisan. After all, we arc dealing in a federal state, Mr. Chairman, not a unitary state.

Mr. Chrétien: The Chief Electoral Officer is an official of the House of Commons.

Mr. Nystrom: I thought I said that he was appointed by the federal Parliament. If I said otherwise, then I correct myself.

Mr. Chrétien: Premier Blakeney suggested his name.

Mr. Nystrom: That is okay. I did not argue with the fact that…

Mr. Chrétien: I explained to you, I gave you the reason, it is just a safety valve; a 60 day period leaves very little room for the government, the House of Commons and the Senate to change it. It would have, in my judgment, to be a very bad recommendation that we will be faced with that will force the government and the House to act. It is not perfect but as I have said so many times perfection is the enemy of the good.

[Page 27]

Mr. Nystrom: It also depends on one’s definition of perfection.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Nystrom. I see that honourable members are ready for the question.

Amendment agreed to: yeas, 13; nays, 7.

Clause 40 as amended agreed to.

On Clause 46—Rule for referendum.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move to Clause 46 of the proposed resolution.

On Clause 46 the Chair has been informed of three amendments. The first amendment is a proposed amendment to delete the clause and as suggested earlier, I will invite those who would favour such an amendment to vote nay when the vote will be called on the clause. I would like to invite honourable members to set aside that amendment.

The next amendment is identified G-41, Clause 46, page 14.

[Translation]

The amendment is identified as G-41, clause 46, page 14. It is quite a long amendment, and there is also a subamendment to this amendment as N-38, Clause 46, page 14.

[Text]

There is a subamendment to that main amendment identified N-38, Clause 46, page 14. I would like to invite Mr. Irwin to move the main amendment and then invite Mr. Nystrom to move the subamendment in the usual way.

If some honourable members do not have a copy of the proposed amendment and subamendment, I will make sure that they get one from our Clerk.

Mr. Irwin.

Mr. Irwin: Mr. Chairman, are we dealing with G-41, Clause 46

The Joint Chairman (Mr. Joyal): I have called G-41, Clause 46, page 14.

Mr. Irwin: Thank you, Mr. Chairman.

I wish to move that Clause 46 of the proposed Constitution Act, 1980 be amended by striking out lines 4 to 1l on page 14 and substituting the following:

46. (1) Every citizen of Canada has, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, the right to vote in a referendum held under Clause 42.

(2) Where a referendum is to be held under Clause 42, Referendum Rules Commission shall forthwith be established by commission issued under the Great Seal of Canada consisting of

(a) The Chief Electoral Officer of Canada, who shall be chairman of the Commission,

(b) A person appointed by the Governor General in Council; and

[Page 28]

(c) A person appointed by the Governor General in Council

(i) On the recommendation of the governments of a majority of the provinces, or

(ii) if the governments of a majority of the provinces do not recommend a candidate within thirty days after the Chief Electoral Officer of Canada requests such a recommendation, on the recommendation of the Chief Justice of Canada from among persons recommended by the governments of the provinces within thirty days after the expiration of the first mentioned 30 day period or, if none are so recommended, from among such persons as the Chief Justice considers qualified.

(3) A Referendum Rules Commission shall cause rules for the holding of a referendum under Clause 42 approved by a majority of the Commission 1o be laid before Parliament within sixty days after the Commission is established or, if Parliament is not then sitting, on any of the first ten days next thereafter that Parliament is sitting.

(4) Subject to subclause (l) and taking into consideration any rules approved by a Referendum Rules Commission in accordance with subsection (3). Parliament may enact laws respecting the rules applicable to the holding of a referendum under Clause 42.

(5) If Parliament docs not enact laws respecting the rules applicable to the holding of a referendum within sixty days after receipt of a recommendation from a Referendum Rules Commission under subclause (4), the rules recommended by the Commission shall forthwith be brought into force by proclamation issued by the Governor General under the Great Seal of Canada.

(6) Any period when Parliament is prorogued or dissolved shall not be counted in computing the sixty day period referred to in subclause (5).

(7) Subject to subclause (1), rules made under this section have the force of law and prevail over other laws made under the constitution of Canada to the extent of any inconsistency.

Thank you, Mr. Chairman.

[Translation]

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

[Text]

M. Corbin: Merci, monsieur le président. Je propose

Que l’article 46 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 5 à 11, page 14, de ce qui suit :

«46.(1) Tout citoyen canadien a le droit de vote au référendum visé à l’article 42; ce droit ne peut être restreint que par une règle de droit, dans les limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.

(2) Dès que s’impose la tenue du référendum visé à l’article 42, il et constitué, par proclamation du gouverneur général sous le grand sceau du Canada, une commission référendaire composée :

[Page 29]

a) du directeur général des élections du Canada, président;

b) d’une personne nommée par le gouverneur général en conseil;

(3) d’une personne nommée par le gouverneur général en conseil :

(i) soit sur la recommdation des gouvernements de la majorité des provinces,

(ii) soit, si les gouvernements de la majorité des provinces ne présentent pas de candidat dans les trente jours suivant la demande que leur en fait le directeur général des élections du Canada, sur la recommandation du juge en chef du Canada, le candidate ainsi présenté étant choisi parmi les personnes recommandées par les gouvernements des provinces dans les trente jours suivant l’expiration du délai de trente jours ou, faute de recommandation, parmi les personnes que le juge en chef estime qualifiées.

(3) Dans les soixante jours suivant sa constitution, la commission référendaire fait déposer devant le Parlement les règles applicables à la tenue du référendum visé à l’article 42, qu’elle aura approuvées par décision majoritaire. Si le Parlement ne siège pas, ce dépôt s’effectue dans les dix premiers jours de séance ultérieurs.

(4) Sous réserve du paragraphe (1) et compte tenu des règles déposées conformément au paragraphe (3), le Parlement peut légiférer pour réglementer la tenue du référendum visé à l’article 42.

(5) Faute par le Parlement d’avoir légiféré, conformément au paragraphe (4), dans le délai de soixante jours suivant le dépôt des règles visées au paragraphe (3), celles-ci sont mises immédiatement en vigueur par proclamation du gouverneur général sous le grand sceau du Canada.

(6) Dans la computation du délai visé au paragraphe (5), ne sont pas comptés les jours pendant lesquels le Parlement est prorogé ou dissout.

(7) Sous réserve du paragraphe (1), les réserve du paragraphe (1), les règles arrêtées en vertu du présent article ont force de loi et l’emportent sur les dispositions incompatibles de toute autre règle de droit fondée sur la Constitution du Canada. »

[Translation]

Thank you.

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

[Text]

To that main amendment there is subamendment and I would like to invite Mr. Nystrom to move the subamendment. The subamendment has the number N-38, Clause 46, page 14 and it is a long subamendment, too. If some of the honourable members of the Committee do not have a copy I will make sure that they have a copy provided by our Clerk.

Mr. Nystrom.

Mr. Nystrom: Once again, it is as long as the other one and I apologize for the length.

[Page 30]

I move that the proposed amendment to Clause 46 of the Move that the proposed amendment by clause 46 of the proposed constitution act, 1980 be amended by striking out proposed Constitution Act, 1980 be amended by striking out subclauses (2) to (7) and substituting the following: subclauses (2) to (7) and substituting the following:

(2) Subject to subclause (l), the Governor General may, by proclamation issued under the Great Seal of Canada, on the recommendation of a referendum rules commission established under this section, make rules applicable to the holding of a referendum under Clause 42.

(3) Where a referendum is to be held under Clause 42, a referendum rules commission shall

(a) forthwith be established to recommend the rules applicable to the holding of that referendum; and

(b) make its recommendation by majority decision, within sixty days after its establishment.

(4) A referendum rules commission shall consist of

(a) The Chief Electoral Officer of Canada, appointed by resolution of the House of Commons, who shall be chairman of the commission;

(b) A person appointed by the Governor General in Council; and

(c) A person appointed by the Governor General in Council,

(i) On the recommendation of the governments of a majority of provinces, or

(ii) If the governments of a majority of provinces do not recommend a person within sixty days after the Chief Electoral Officer requests such a recommendation, on the recommendation of the Chief Justice of Canada from among persons recommended by the governments of the provinces within thirty days after the expiration of that sixty day period, or, if none is so recommended, from among persons knowledgeable in the holding of elections.

(5) Rules made under this clause

(a) may include penalties for the contravention thereof;

(b) have the force of law; and

(c) prevail over other laws, except the Canadian Charter of Rights and Freedoms, to the extent of any inconsistency.

Il est proposé

Que le projet de modification de l’article 46 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux paragraphes (2) à (7), de ce qui suit :

« (2) Sous réserve du paragraphe (1), le gouverneur général peut, par proclamation sous le grand sceau du Canada et sur la recommandation de la commission référendaire prévue au présent article, établir les règles applicables à la tenue du référendum visé au paragraphe (2).

[Page 31]

a) d’une part, de recommender les règles applicables à la tenur de ce référendum,

b) d’autre part, de présenter sa recommandation, qu’elle aura approuvée par décision majoritaire, dans les soixante jours suivant sa constitution.

(4) La commission référendaire se compose :

a) du directeur general des élections du Canada, nommé par résolution de la Chambre des communes, président;

b) d’une personne nommée par le gouverneur général en conseil;

c) d’une personne nommée par le gouverneur général en conseil;

(i) soit sur la recommendation des gouvernements de la majorité des provinces,

(ii) soit, si les gouvernements de la majorité des provinces ne recommandent personne dans les soixante jours suivant la demande que leur en fait le directeur général des élections, sur la recommandation du juge en chef du Canada, la personne ainsi recommandée étant choisie parmi celles qu’auront recommandées les gouvernements des provinces dans les trente jours suivant l’expiration du délai de soixante jours ou, faute de recommandation, parmi celles qui sont compétentes en matière de tenue d’élections.

(5) Les règles établies en application du présent article :

a) peuvent prévoir des peines sanctionnant la transgression de leurs dispositions;

b) ont force de loi;

c) l’emportent, exception faite de la Charte canadienne des droits et libertés, sur les dispositions incompatibles de toute autre règle de droit.

I do not think I would like to repeat that, Mr. Chairman.

A brief argument as to why this subamendment is being moved. I will be brief because it is a repetition of the argument made before the Committee a few weeks ago.

Mr. Chairman, the only significant difference between my subamendment and that moved by the Minister is that the Referendum Rules Commission will have the force of law.

I do that because we are a federal state, and we are, in the amending formula, making a provision for amending the constitution by referendum.

If we are going to amend the constitution by referendum which can touch on the division of power or can be solely on provincial powers, what we argue on our part is that the referee must be neutral, the referee must be above and beyond the power and exclusive control of either the provinces or of the federal government.

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It is not a referendum which should be instigated and run solely and uniquely by the Parliament of Canada, but must be one which is a Canadian referendum, reflecting the fact that we are a federal state.

As I said before, when I was arguing the case, there still is going to be a built-in bias here in favour of the federal order of power: the Chief Electoral Officer is the President of the Commission and appointed by Parliament, Obviously on the recommendation of the Cabinet of the day or of the Prime Minister of the day.

A second member of the Commission is appointed by Parliament. So that there are two federal appointees on the three- person commission and only one person is appointed by the provinces. We, of course, accept that because that is the motion we move—that we still recognize that the sum of the parts is still greater than all the parts.

We are more than just a community of communities and much more than a string of provinces. We are a nation, and must be a nation; we fully recognize that, and that is why we have this two to one bias.

But what we are saying is that, all that being said, we must make sure when we establish this body that the provinces have direct input into the body, that the rules that they establish should have the force of law. I think that is only fair.

I know the government today, especially the Minister of Justice in charge would not want to manipulate the rules; but we have no guarantee that a future government in three or four years, or even 40 or 50 years, because of the climate in the country and other divisions in the country which could, hypothetically, be there, may not indeed want to manipulate the rules and may, indeed, want to manipulate the question.

I find that a thoroughly dangerous thing to enshrine in a constitution.

In conclusion, therefore, the amendment I move today is just an extra safety valve to make the rules fairer and to reflect the federation a little more accurately and to mirror what the overwhelming majority of Canadians would want.

It takes nothing away from federal powers or from the power of Parliament or the federal government being able to initiate a referendum.

It takes nothing whatsoever away from their powers. All it says is that if you are going to have a ball game then you should have a referee who is not appointed by one of the two teams. I am sure my friend, the Senator from Newfoundland, would agree with that absolutely reasonable approach, because I am sure if I did not move it, he would do so himself.

Thank you very much.

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

The honourable Jake Epp.

Mr. Epp: Thank you, Mr, Chairman.

[Page 33]

Speaking both to the amendment and the subamendment, I will do both—that is the NDP subamendment and the government’s amendment.

As I said yesterday on behalf of our party, we feel the referendum procedure is a cudgel over the heads of Canadian citizens and the partners in the federation. We are opposed to the proposal.

While in either one of the amendments one could argue that there is some merit in what they are trying to achieve, there is no merit in the over-all purpose. Therefore, we will be voting against both.

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable Jake Epp.

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

I have a couple of questions for the Minister, if I may, on this Subject.

In view of the fact that the Referendum Rules Commission has been structured in such a way as apparently at least to attempt to give some provincial input while at the same time maintaining over-all federal controlling influence on it, in effect, because the federal government appoints one representative and also the Chief Electoral Officer is appointed by Parliament; in view of that at least apparent independence and the safeguard for the federal interest in that Commission, what is the reason, Mr. Minister, through you, Mr, Chairman, for insisting that this Commission report back to the federal parliament?

Mr. Chrétien: I have explained that many times. We made the intervention of Parliament only a slight possibility in case we were faced with a real problem, because there are only 60 days. We would need very strong and good reason to move.

In our judgment, it would be imprudent not have the last minute recourse in the event that there was some problem. The government of the day and Parliament of the day would have to take up their responsibility.

Mr. Robinson: Well, what sort of problems are you envisaging?

Mr. Chrétien: I do not know. For instance, it might be that the report could be very controversial, supposing, for the sake of argument, that there is a dissentient voice which makes very good points, you have a two to one situation, and it is very controversial and so on; then, Parliament will be forced to take its responsibility to approve or disapprove.

Mr. Robinson: For example, if the federal governments appointee were to dissent, what you are saying is that Parliament could then adopt the dissent of that particular federal government nominee?

Mr. Chrétien: The Government could have a new rule.

Mr. Robinson: It could adopt the dissent of the federal nominee.

Mr. Chrétien: Or if it is the provincial nominee, in the light of public opinion and on the publication of that document

[Page 34]

because one is appointed by the federal government and the other is an official of the parliament; there is a controversy which gives us another chance to come back, in my judgment there will have to be a major crisis—it might very well be that the Chief Electoral Officer is the one who disagrees.

Mr. Robinson: Well, if that is the case, why should it only be Parliament to which this body would report? Why should there not be some sort of provincial forum to which this body would report?

Mr. Chrétien: As I say, there comes a time when a decision has to be made and someone has to discharge their responsibilities.

Mr. Robinson: Mr. Minister, why should it only be the federal government that ultimately can write the rules on this referendum question?

Mr. Chrétien: Because I have said to you that it is a referendum which affects all Canadians.

All Canadians are represented in one body—the House of Commons of Canada. We have to take up that ultimate responsibility.

When you look at the complexity of the process, it might take two years before a decision is made two and a half years before the people of Canada are called upon to accept or reject an amendment to the Canadian constitution.

There are ample places for debates and arguments in the House of Commons a couple of times, and in the assemblies and meetings of first ministers and what not.

I think there are sufficient safeguards.

But if this Commission were to produce a very controversial report, the elected people of Canada will have to decide.

Mr. Robinson: Mr. Chairman, just to conclude, what the Minister is saying is that if the report is controversial—say, for instance, it is a referendum on provincial powers—that it is not a body which is representative of both the provincial and federal governments which will be able to resolve that controversy, but it is the federal Parliament itself-by a majority, the federal Parliament which will resolve that question.

I suggest, Mr. Chairman, that if there is to be an independent body as indeed there is in this proposal, that the purpose of that independent body is totally negated by holding a club over the head of that independent body and suggesting that if we do not like what you are saying, we, in the federal Parliament, will then over-rule it if we want to.

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

I see that honourable members are ready for the vote on the proposed subamendment.

Mr. Nystrom: May we have a recorded vote, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Yes.

Subamendment negatived: yeas, 2; nays, 20.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to come back on the main amendment,

[Page 35]

the one moved on behalf of the government party. If there are no questions or further interventions on the main amendment, the Chair will call the vote on the main amendment.

Mr. Robinson.

Mr. Robinson: Mr. Chairman, if I may, one question through you to the Minister.

On the question of who may vote in this proposed referendum, I did ask the Acting Minister of Justice whether or not the “reasonable limits prescribed by law as can be demonstrably justified in a force and democratic society” would enable federal prisoners to cast a vote in a general election?

It was the view then of the Acting Minister of Justice that at least there was a good possibility that this may be interpreted in this way. I think Mr. Tassé would agree that this might very well be interpreted to extend the right to vote to federal prisoners.

Would you agree, Mr. Minister, that this particular clause in the section on a referendum might also mean that if there were to be a referendum federal prisoners would be entitled to vote in that referendum?

Mr. Chrétien: I have nothing to add to what Mr. Tassé and Mr. Kaplan have said. I think the same reasonable clause might apply there.

Mr. Robinson: So that federal prisoners may indeed be able to vote in this referendum process?

Mr. Chrétien: The answer is the same for that as on the previous occasion when you asked the question.

Mr. Robinson: Is the answer yes?

Mr. Chrétien: Yes; oui.

Mr. Robinson: Thank you.

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

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like then to invite the honourable members to come back on the main Clause 46 as amended.

Clause 46 as amended agreed to on division.

The Joint Chairman (Mr. Joyal): I would then like to invite honourable members to move on Clause 47.

On Clause 47—Limitation on use of general amending formula.

Mr. Epp: Mr. Chairman, on a point of order.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp on a point of order.

Mr. Epp: Mr. Chairman, I see that we are moving with a pace that Mr. Bockstael has wished for a long time.

Mr. McGrath: That is not to suggest a lack of diligence either.

Mr. Epp: But I do have one concern, and that is if rumours are to be given any credence around this table, there is a

[Page 36]

rumour around, namely that the Leader of the New Democratic Party is going to be moving a motion on resources at sometime. I understand that that most likely spot would be after Clause 5l, prior to Part VI, that would be a new Part VI and the old Part VI would be renumbered Part VII.

If we continue with the Bockstael speed, I am just wondering at what stage, Mr. Chairman, we could have in fact that amendment so we could do some studying and research on the resources amendment because I will not entertain an amendment, receiving it one minute and decide on it, to debate it, an important amendment such as that, the next.

Mr. McGrath: The same point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Honourable James McGrath on the same point of order.

Mr. McGrath: I find myself, Mr. Chairman, at the considerable disadvantage of having moved an amendment to an amendment that I have not seen. My amendment, pending translation, will be circulated today and it was with the understanding that the New Democratic amendment would be circulated as well, but I understand that the Chair has it but that it is still restricted at the present time and we are just wondering if, given the fact that my amendment to the New Democratic Party amendment has now been filed with the table, if perhaps that may move the honourable gentlemen and the New Democratic Party to step up the process of letting us have the advantage of seeing what they propose.

Mr. Chrétien: There is nothing we can do about it the freedom of information act has not been passed yet.

Mr. Epp: The Combines Act is in effect.

The Joint Chairman (Mr. Joyal): Mr. Nystrom on that very point of order as raised by honourable Jake Epp and emphasized by honourable James McGrath.

Mr. Nystrom: I understand some of the concern of the Conservative Party, they are extremely nervous on this issue. I shall do my utmost to expedite the matter.

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

I would like then to invite honourable members to move on Clause 47 as already called, and on that Clause 47 the Chair has been informed of three amendments that will be dealt with separately.

The first one is the amendment numbered CP-21, Clause 47, page 14.

It is an amendment moved on behalf of the Conservative Party, the Official Opposition, and l would like to invite honourable Jake Epp to move the amendment in the usual way.

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, before I am going to move CP—21, Clause 47, members will notice that the line “other than Clause 41” was moved on the basis of our amendment to Clause 41, and without the general wisdom that has been around the Committee, the Committee decided not to accept

[Page 37]

our Class 41 amendment and therefore I feel that that part docs not apply, and yet the point that I want to make is that we do not like that the amending formula can be changed by the referendum rules, but having said that I think at this stage that amendment now docs not apply and therefore I will withdraw it.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp.

Mr. Epp: That is moving with Bockstael speed.

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

The next amendment is the amendment numbered G-42, Clause 47, page 14.

[Translation]

It is the amendment numbered G-42, Clause 47, page 14; it has been moved on behalf of the government party and I would like to invite

[Text]

Mr. Ron Irwin to move the amendment in the usual way.

Mr. Irwin: Thank you, Mr. Chairman.

I wish to move that Clause 47 of the proposed constitution act, 1980 be amended by renumbering Clause 47 as subclause 47(1) and adding immediately after line 22 on page 14 the following:

(2) The procedures prescribed by Clause 41 or 42 do not apply in respect of an amendment referred to in Clause 43.

Thank you, Mr. Chairman.

[Translation]

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

Mr. Corbin: Mr. Chairman, I move

That Clause 47 of the proposed Constitution Act, 1980 be amended by renumbering Clause 47 as subclause 47(1) and adding immediately after line 22 on page 14, the following:

“(2) the procedures prescribed by Section 41 or 42 do not apply in respect of an amendment referred to in Section 43.”

Thank you.

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

[Text]

Mr. Chrétien: Mr. Chairman, this is an amendment that is to make sure that the Act of Union of Newfoundland, or other provisions of the same nature that affect one province in Canada, cannot be amended other than with the consent of the province involved in the matter.

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

I understand that honourable members have no further intervention on that very amendment.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like then to invite honourable members to move on the last amendment to Clause 47. It is an amendment numbered CP-21.1, new clause after Clause 47, page 14.

[Translation]

It is an amendment numbered CP-21.1, new clauses after Clause 47, page 14.

[Text]

It is an amendment moved on behalf of the Official Opposition and I would like to

[Page 38]

invite honourable Jake Epp or honourable James McGrath to move the proposed amendment.

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

I move that the proposed constitution act, 1980 be amended by:

(a) Adding thereto immediately after Clause 47 the following clause:

48. Notwithstanding Clause 47 and amendment to Clause 3 of the constitution act, 1877 and an amendment to this section may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province.

(b) Renumbering the subsequent clauses accordingly.

And Mr. Chairman, in the spirit that animates our federation I am going to ask my colleague Senator Asselin to read it en français.

[Translation]

The Joint Chairman (Mr. Joyal): Of course.

Senator Asselin.

Senator Asselin: I move that the proposed Constitution Act, 1980 be amended by

(a) Adding thereto immediately after Clause 47 the following clause:

48. Notwithstanding Section 47, an amendment to Section 43 of the Constitution Act, 1871 and un amendment to this section may be made by proclamation issued by the Governor General under the Great Steal of Canada only where so authorized by resolutions of the Senate and the House of Commons and of the legislative assembly of each province.” And;

(b) Renumbering the subsequent clauses accordingly.

The Joint-Chairman (Mr. Joyal): Thank you, Senator Asselin.

[Text]

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

I shall, in the interests of expediting the work of the Committee, endeavour to be brief, although I do not want that in any way to be construed as minimizing what I consider to be the importance of this amendment.

Mr. Chairman, this amendment is offered in the same vein, with the same concerns as the amendment that we proposed regarding Newfoundland’s historic or constitutional rights to denominational education under the terms of the union between Newfoundland and Canada. The question, of course, arises as to why we would move this particular amendment. The answer is very simple, Mr. Chairman:

The boundary between Newfoundland and Quebec is the only disputed boundary in Canada, the only disputed inter-provincial boundary in Canada.

The historical reason for this, of course, is in 1927 Canada and Newfoundland were self-governing dominions and an appeal was lodged with the Imperial Privy Council to settle

[Page 39]

what was known as the Labrador questions, that is, the delineation of the boundary between Newfoundland and Canada. And I emphasize, between Newfoundland and Canada, because at that time we were not talking about provincial boundaries, we were talking about national boundaries, and that is important, Mr. Chairman.

In any event, we were talking about national boundaries; the case for Canada, more particularly the case for the Province of Quebec, was made by the Dominion of Canada before the Privy Council and the case for Newfoundland, of course, was made by the Government of Newfoundland.

Well, as a result of the hearing a boundary was established by the imperial Privy Council and to this day it has not been accepted by the Government of Quebec. And, too, in all fairness l may say by successive governments in Quebec; not only the present government, but previous governments as well.

I am not prepared to argue the merits of that case, Quebec’s case. I suppose that should be reserved for another time if indeed another time is warranted because, as far as we are concerned as Newfoundlanders the case is closed, there is nothing left to argue, there is nothing left to debate. That is our position and that is the position that we as a province hold firm under the contractual obligations assumed by the rest of Canada when we entered into the union in 1949.

Term 2 of the Terms of Union between Newfoundland and Canada covers the boundaries. It states:

The Province of Newfoundland shall comprise the same territories as at the date of union. That is to say, the island of Newfoundland and the islands adjacent hereto, the Coast of Labrador as delineated in a report delivered by the Judicial Committee of His Majesty’s Privy Council on the First Day of March, 1927, and approved by His Majesty in Privy Council on the 22nd Day of March, 1927, and the islands adjacent to the said coast of Labrador.

That of course is Term 2 of the Terms of Union. The amendment refers to Clause 3 of the Constitution Act, and I am merely reading these sections, Mr. Chairman, for the purpose of those who are listening and perhaps for those who will be reading these reports and I think that is probably useful and I am not doing it merely to take the time of honourable members.

Section 3 of the British North America Act reads as follows…

Senator Connolly: Section 3 of what year?

Mr. McGrath: Section 3, 1871. Thank you very much, Senator Connolly. It reads as follows:

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 provisions respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any province affected thereby.

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That is the end of the quotation from the British North America Act, 1871.

Mr. Chairman, we are concerned, and I say “we”, I speak for my colleagues on this side of the table because they share that concern to the extent they agreed to sponsor this amendment, and for that I am grateful to them.

I cannot speak for my other Newfoundland colleagues around this table, they have to speak for themselves, but certainly we as a province, and I can say that because concern has been expressed by the government of Newfoundland on behalf of the people of Newfoundland, expressed concern over the impact on our Terms of Union of the amending formula that is now before us. During discussion on Clause 42 I expressed that concern in as forceful a way as I could. I said at that time, and I repeat now, the veto that Quebec will have under the amending formula can be used to force the Government of Canada to re-open the boundary question. That is my opinion.

Other clauses as well can impact on that question unless there are precautions taken which will eliminate any doubt whatsoever. This is a loop hole that has to be closed.

I do not want to hear arguments from learned counsel at the table saying: well, in their opinion this is not so. I think that the position should be as long as there is doubt, let us address it because we are talking about the constitution of the country.

One province has expressed grave doubts about what we are doing here with respect to the Terms of Union and the boundary between Newfoundland and Quebec. That was the spirit, I submit, that animated the government in moving the amendment to my amendment on the denominational education question after it had already expressed itself by saying they had no doubt, the Minister when he came here said it was not our intention, that this was covered, there is an exchange on the record of our third set of proceedings between Mr. Tobin, who unfortunately is not here, and Mr. Chrétien, and at that time it was made very clear by Mr. Chrétien that what the government proposed would in no way affect Newfoundland’s denominational education rights under Term 17. And of course we know that changed.

It changed twice. It changed with an amendment proposed by the government and then it changed with the government agreeing to amend an amendment that I proposed, and of course we now have that enshrined in the bill before us and who gets credit for that is not important, the fact is we agreed to do it. That is the important thing.

In the same spirit, Mr. Chairman, I would hope that the same amendment will lend itself to the Committee, more particularly that it will lend itself to the government, If the government is going to be consistent, then I would submit that they would accept this amendment because it follows logically

[Page 41]

that the same concerns we have expressed here are not dissimilar to the concerns that we expressed under the denominational education provisions of the Terms of Union and its impact on Section 93 of the British North America Act. If the government cannot accept it, then I appeal to my colleagues opposite. If the government is to say to us: well then, it really does not make much difference; we have had that explanation before, if it does not make much difference then whatever credibility I have, Mr. Chairman, I lay it on the line to appeal to my colleagues opposite to accept the arguments that I put forward in the most honest sincere way I possibly can, not in any partisan way, not in any way to gain any partisan advantage but merely to reaffirm in the constitution of the country what is protected in the present constitution, namely the boundary between Quebec and Newfoundland.

On that, Mr. Chairman, I rest my case.

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

I wonder if the honourable Minister of Justice would not like to comment.

Mr. Chrétien: I think this has been debated many, many times and I appreciate the concern of the honourable Mr. McGrath on this problem and there is a mechanism that was provided for the British North America Act in 1871 in relation to the change of the borders of the provinces, and in fact there would be no change in the border of any province without the consent of that province.

It is very clear, it is one of those amendments that we extracted from the British Parliament without the consent of the provinces. I do think that this is a case for every province.

We cannot change the border of any province without the consent of that province. In the case of Newfoundland I can make the case that the official recognition of that dispute about Labrador was recognized at that time that Mr. St. Laurent accepted the Act of Union where it made it very clear in terms of the national government in Canada that the border of Newfoundland between Labrador and Quebec was as it is today. And it had been recognized de facto at the time of union by the national government and we cannot change it without the consent of the Government of Newfoundland.

So I do think that there is maximum protection in that this is the rule that applies to every province, so I do not, we do not need it, we have the maximum protection as it is and there is no other clause in the constitution that has stronger protection than the one on the borders of the provinces.

So for that we do not need that amendment and we cannot accept it.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp.

Mr. Epp: Well, Mr. Chairman, I will not be very lengthy and I want to reiterate my support for the position taken by my colleague, Mr. McGrath.

I believe I can speak from personal experience that Mr. McGrath, as well as members that I have spoken to, are deeply concerned about the continual sore that seems to crop up from time to time regarding Labrador and its inclusion with Newfoundland. I know it goes beyond even that argument into

[Page 42]

transmission of hydro electric power, but fundamental to it is the position that Mr. McGrath has established for us today.

The Minister talks about maximum protection. It is obviously not maximum protection, it is Mr. McGrath’s amendment that gives it maximum protection because if there were any doubt then I do not think that I would agree with the Minister that the amendment is not needed, but if one reads the clause and if one reads the amendment, one finds very quickly that maximum protection is inherent in the amendment and not in the Clause.

And I am concerned, Mr. Chairman, that the Minister would want to dismiss so out of hand an amendment which we believe is put forward in a non-partisan manner, one which we believe protects the status quo, one which without question, Mr. Chairman, would not threaten a smaller province like Newfoundland.

When I take a look at the amending formula that the Minister wants to insist on in Clause 41, where does that leave Newfoundland as against the power of a province that has a veto? And that is inherent in the situation now with the passage of Clause 41.

I hope that the Minister is listening to his Senate friend from the same party that there is a lot of merit in Mr. McGrath’s amendment, quite apart from the fact that he as a Conservative has moved it, I believe it should be commended to all members as a clause that defends the Newfoundland interest rather than any party.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp.

The honourable Minister of Justice.

Mr. Chrétien: I made the point, I do not want to belabour it. I said that we, the national government, have made our views clear on that and the border of Labrador, between Labrador and Quebec is settled and the amendments, the possible amendment of that border cannot be done in a different fashion than if, for example, Ontario and Quebec wanted to change their border and Manitoba and Saskatchewan wanted a change, and Alberta and British Columbia and so on.

It is all the same problem for all the provinces and I do not see why in that circumstance we should give a special status to that problem. It is clear it cannot be amended without the approval of the concerned province and the national government and there is a special section of the British North America Act of 1871 to that effect and that is that no border of any province can be changed without the consent of the concerned province, and the interests of other provinces are exactly the same. Every other province might argue that they have that problem. It is probably not the case with Prince Edward Island, but any other province that adjoins another province.

So I think that the protection is as good for Newfoundland and Labrador as it is for any other province, so that honourable Mr. McGrath can be reassured.

[Page 43]

Senator Connolly: May I ask the Minister a question?

The Joint Chairman (Mr. Joyal): Honourable Senator Connolly.

Senator Connolly: I may be missing something, but does not Clause 43 of the proposal that we have before us fortify the position and, without referring to Section 3 of the constitution act of 1871, does it not really do what Mr. McGrath suggests?

Mr. Chrétien: Clause 43, like we mentioned, has been put there for that and to make it sure, create no doubt in the minds of anybody that if you want to change the border of a province you have to have the consent of the concerned province.

Mr. Mackasey: And you would have to use Clause 43 by virtue of what Clause 47 says, no choice.

Senator Connolly: Well, that is my understanding of it.

The Joint Chairman (Mr. Joyal): Honourable James McGrath.

Mr. McGrath: I would like to point out, Mr. Chairman, that the key word in Clause 43 is “may” that is what concerns us. The key phrase is “may be made”; “may by proclamation” and of course the catch all amending procedures of Clause 47 concern us as well.

Senator Connolly: But the “may be” refers to the proclamation. It goes on:

Where so authorized by resolution of the Senate and the Commons and of the legislative assembly of each province to which the amendment applies.

I am not arguing the point with you. I really thought that when I read that against your proposed amendment that this does as much as you want. I hoped it would.

The Joint Chairman (Mr. Joyal): The honourable James McGrath.

Mr. McGrath: Mr. Chairman, to Senator Connolly for whom I have great respect as being a fair minded man, let me just say this. It does not satisfy me; it does not satisfy the Government of Newfoundland; and it does not satisfy many people in Newfoundland; because we sec day after day the Province of Quebec and not only this government but preceding governments as well, publishing maps of Quebec which has included within the boundaries of Quebec 110 thousand square miles of the territory of Newfoundland which happens to be the Labrador portion of the province. That continuing provocation goes on day after day after day.

We see correspondence, Mr. Chairman, and this may not seem like a big thing, but the cumulative effect I can assure honourable members is rather big. We see correspondence between various points in Labrador and Ottawa from federal government departments whereby people are addressed as Labrador City, Nouveau Quebec, from departments of the federal government. That is a continuing sore point, given the

[Page 44]

historical background I tried to briefly lay on the table of the committee.

The other point I make, and it was alluded to by my friend Mr. Epp is that we have the standing, running sore in my opinion, the standing running sore of Confederation whereby the Province of Quebec with the quiet acquiescence of this government refuses to give Newfoundland a corridor through Quebec under the provisions of the BNA Act to transmit our power to markets in New York. That is not right.

Mr. Chrétien: It is irrelevant, completely.

Mr. McGrath: it is very relevant, Mr. Chairman, because I want to say to the Minister that we know the politics of the confederation; we know the way things are; we did not press this matter in the House because there was a referendum coming up in Quebec on May 20. We are just as good Canadians as anybody. We did not want to do or say anything to hurt the clause of Confederation or to further the cause of separatism, but that has been settled, that matter has been settled. Our rights under the existing constitution have been flagrantly denied us by this government, and I submit to you that the disputed boundary or the boundary that Quebec disputes between Quebec and Newfoundland is a matter of no mean significance in terms of the motivation of the federal government in not stopping in and granting us the same rights as western provinces have to transmit their gas energy through the other provinces without the acquiescence of these provinces.

That is what it is all about, Mr. Chairman, We are a small province. We have only seven seats in the House of Commons and six seats in the Senate against 70 seats from Quebec in the House and I do not know how many in the Senate; plus the veto power that we are now building into the constitution for Quebec. What chance do we have? What chance do we have unless the rights that we enjoyed heretofore are reaffirmed in the constitution?

Now look, Mr. Minister, you are not trying to mislead me, because I have too much respect for you for that, but I say to you that the same arguments that you gave me a few moments ago, you gave me on the concern that we raised regarding the denominational education rights. You said that you were satisfied, and you were going by the advice from your table officers and you were going by the advice of the law officers of the Crown, and you said you were satisfied that these concerns, that this would never happen, that the Government of Canada would never change Newfoundland’s historic constitutional denominational education rights. That position was made almost word for word to the position that we just received now from the Minister regarding his objections to this provision.

I am sorry Mr. Tobin is not here. He has been here all day. I would have hoped that he would have been here today to lend me some support because the ink was not even dry on the amendment to the amendment that we passed that night when Mr. Tobin went out of here, and took credit for it. That is fine, that is fair enough, and I will not quarrel with that. All I ask is

[Page 45]

that he stay around and support his Colleagues when they have other provincial interests that they want to put forward. I note that he knew that this amendment was coming on today and he did not see fit to stay behind.

But, Mr. Chairman, I say this to you. All we are asking is to have our rights reaffirmed. We are not asking for very much. It is not going to affect any other province. No other province has that problem. It is not going to affect the constitution of Canada. There is not going to be any great concessions from the Government of Canada; it is not going to mean my election or re-election or defeat. It is not going to affect my future, but it could affect the future of my province, and that is no mean thing as far as I am concerned, I do not divorce my responsibility to my province with my responsibility to my country. I see the two of them as being coequal. Being a good Newfoundlander is not inconsistent with being a good Canadian or being a good Quebecker is not inconsistent with being a good Canadian.

I say to you. Mr. Chairman, that I move that amendment, I do not mind telling you I got out of my sickbed in order to be here to make these arguments. I feel very strongly about it, so strongly about it that I appeal to my colleagues. It is not going to make much difference; we know that, we have heard that from the Minister. If it is not going to make very much difference, why not let us have it?

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable James McGrath. The honourable Minister of Justice.

Mr. Chrétien: I understand the honourable member but I repeat that the border of Newfoundland is secure under this constitution completely and it cannot be altered without the consent of the Newfoundland government. It is the same rule that applies to all the borders of all the provinces.

In terms of the obligation of the national government as a national government to make sure that the resources of any province being transferred to other parts of Canada, we have always assumed our responsibility. In an exchange of letters between the Prime Minister of Canada and the Premier of Newfoundland we said that when there is firm obligation we will deliver our constitutional obligation to make sure that the resources can go to the market. In fact, there are some discussions going on at this time with the officials of the Newfoundland Government and they will be in town next Monday; but this has nothing to do with this amendment that we are faced with today. It is completely irrelevant. We gave our commitment that we will help the Province of Newfoundland if they have a market for their hydro-electric power from Lower Churchill to go to the market, and this is clear and it is an obligation. The honourable member spoke about the pipelines and so on. We have done it for gas, we have done it for oil, and we will do it for electricity. This is our obligation and we will live up to it, but we do not have to cope with a hypothetical question. We recognize we have the obligation to do so and we will use our constitutional power to achieve it: but if it can be done with the agreement of the provinces concerned, the Province of Quebec, it is better and it is

[Page 46]

cheaper. If there is a confrontation there, the national government, I am glad that the honourable member speaks about the national obligation, that is a good example where we need a strong federal government and we will deliver our obligations; but not in a hypothetical way; when there will be a contract between a buyer and the Province of Newfoundland, if there is a stalemate between Quebec and them we will have to face up to our obligations. We said that completely, clearly, in a letter that the Prime Minister sent to the Premier of Newfoundland. But this problem has nothing to do with the present amendment at all.

Mr. Mackasey: I know I am going to get shot but I must ask a question. I will probably get a letter or a note telling me not to, but I am going to.

Mr. Minister. I would like to ask a question through you to your officials, if I may, because I am persuaded at least by the sincerity of Mr. McGrath who, if he got out of his sickbed must have some fears. Are there any conditions under which any combination of formulae in this document could result in the boundary between Newfoundland and the bordering province being changed without the consent of the Newfoundland legislature any combination?

Mr. Chrétien: There is one combination.

Mr. Mackasey: Which is it?

Mr. Chrétien: If all of the provinces were to agree that the border that exists might be changed by the national government under the amending formula.

Mr. Mackasey: That is true today.

Mr. Chrétien: It is true today. Anything in Canada can be changed.

Mr. Mackasey: I am not talking about that one, apart from the amending formula.

Mr. Chrétien: Today we could do that just in going to London.

Mr. Mackasey: But apart from that, there is none.

The Joint Chairman (Mr. Joyal): Honourable Senator Petten, followed by honourable Perrin Beatty and Senator Roblin.

Senator Petten: Mr, Chairman, when the DEC appeared before us and prior to that l was quite concerned about the denominational education in Newfoundland. I will not dwell on that, Mr. Chairman, but I just want to make a very quick point and not delay the proceedings of the Committee. I felt strongly about it, and I was happy when the thing turned out as it did, the government gave us that over-all amendment that not only covers Newfoundland but covers all the denominational schools in Canada; and for Newfoundland it also gave us that extra for the Pentecostal assemblies until we patriate the constitution and then can look after item 17.

So I say to my good friend, the honourable Jim McGrath from Newfoundland, on this one as far as the border is

[Page 47]

concerned, I have discussed it with the officials and, Mr. Chairman, l have discussed it with the Minister and I am satisfied that the situation is all right. We are okay there. That is it.

Mr. McGrath: The same officials who said the same thing about the DEC, the denominational education amendment.

Senator Petten: I said what I said. That is it.

The Joint Chairman (Mr. Joyal): I will recognize all of the honourable members who want to speak in the debate, provided that they answer to the call of the Chair.

Honourable Perrin Beatty, followed by honourable Senator Roblin.

Mr. Beatty: Mr. Chairman, I would like to put a question to the Minister. I have listened to the Minister’s argument very carefully and, if I understand it correctly, the gist of it is that Mr. McGrath’s amendment is not necessary. Obviously Mr. McGrath disagrees with him.

I put this question to the Minister. What damage would be done by agreeing to Mr. McGrath’s amendment. If your argument is that it is redundant or unnecessary could you explain to the Committee what damage could be done by incorporating it in the constitution? What compelling reason is there to vote against it?

Mr. Chrétien: There is that great situation that does not exist for any other right in the constitution. We had the problem of the denominational schools and so on and we have a rule that applies to all the rights that we want to protect, special circumstances and so on, and I have to give this same answer to that problem that I gave to the other problems. I do not see why this is more important than the others. It is the same thing that applies. One can always, as I said, argue that it might be possible; of course, everything might be possible in Canada. We might in the future if some government decides that there would be no more federal government or no more provincial governments. That is a hypothesis that one has to say by national referendum that we could abolish the national government or abolish the provincial government. You can have all those so called possibilities but if the people are sovereign there is always that possibility.

I do not think that there are any clauses in the constitution that receive that kind of amendment Mr. McGrath is asking for.

Mr. Beatty: Mr. Chairman, perhaps I could repeat my question because I listened very closely to the Minister‘s answer. What he said again was that it was not necessary or that there was not a precedent in other areas of the constitution. My question was not whether or not the Minister thought it was necessary. He had already said that he thought that it was not. My question was what damage would be done to the national interest, the interest of Canada, by agreeing to Mr. McGrath’s amendment.

Mr. Chrétien: There are a lot of amendments that have been proposed that we had to turn down because they were unnecessary and as the legal adviser of the government, you know, we refused a lot of stuff coming from Mr. Robinson, and for example, that I said it is unnecessary. At one time he had a lot of

[Page 48]

arguments and hypothesis and this and that and we had to say no, that is enough, we cannot go, we do not have to go that far. The same argument could have been put forward by Mr. Robinson for all of the motherhood that he could dream up and I said no, it is a charter; we have to put the essentials there. What Mr. McGrath is asking, he has all the protection he was calling for, and this is unnecessary. It is the same rationale that we had for a lot of other types of amendments.

Mr. Beatty: Mr. Chairman, let me put the question this way and try for the third time to see whether or not I can get a satisfactory answer.

Do I understand the Minister correctly that the Minister is unable to cite a single possible bit of damage that could be done to the national interest, as a consequence of accepting Mr. McGrath’s amendment. Do I understand that is the case?

Mr. Chrétien: The same question, I do not want to answer it again.

Mr. Beatty: I would appreciate a yes or no answer. Am I correct in saying that you cannot think of a single possible damage that would be done to the national interest by accepting Mr. McGrath’s amendment.

Mr. Chrétien: There is no such clause for anything in the constitution, and you will create a special category for that problem that is not needed. We said no to a lot of that type of amendment before that was not necessary, and it is not necessary. There is enough protection there for anything else.

The answer is that you will create a problem because after that, they will say why is this not for other things, and that will be a major problem.

Mr. Beatty: Mr. Chairman, the Minister has made it very clear that he is incapable of citing damage that could be done by Mr. McGrath’s amendment. Mr. McGrath and the Minister differ on one fundamental area. Mr. McGrath says that he believes that it is essential that the territorial integrity of Newfoundland be respected in the constitution, that there is doubt and concern in the minds of many Newfoundlanders. Mr. Chrétien says that there is not a concern here, it is not a problem with the constitution the way it is.

But Mr. McGrath has cited what could be positive benefit as a result of the amendment he is proposing. The Minister has cited no conceivable damage that could be done to Canada by accepting Mr. McGrath’s amendment. It is clear that no question is more fundamental to any of the provinces of Canada than the integrity of their boundaries.

Mr. Chairman, on the strength of the Minister’s answers and on the strength of the representations made by Mr. McGrath, I support Mr. McGrath’s amendment and I believe that every member of the Committee has a responsibility to give Mr. McGrath the support which he deserves. Thank you, Mr. Chairman.

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

The honourable Senator Roblin indicated to me…

[Page 49]

Senator Roblin: I did, Mr. Chairman, but if you will be kind enough to give me a second, there is just one point that I want to make.

I want to ask the Minister whether on behalf of the government he is ready to officially recognize the unchangeability of the present boundary between Quebec and Newfoundland and advise the Committee as to the government’s policy at the present as to its inviolability.

Mr. Chrétien: I said before that the borders of Labrador and Quebec are firm in the mind of the federal government at this time. It was recognized when we accepted Newfoundland into Confederation in 1949. We did recognize the validity of the present borders.

Senator Roblin: The Minister qualified his statement by saying “at this time”. Would he like to delete that qualifying phrase?

Mr. Chrétien: It is still the policy of the Government of Canada.

Senator Roblin: Thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Senator Roblin. I see that honourable members are ready for the question and I understand that the honourable McGrath would require a recorded vote.

Mr. McGrath: Yes, Mr. Chairman, we would like to have a recorded vote. While members are coming in, I would just like to correct the record in one particular instance where the Minister said that the position of the Government of Canada with respect to the transmission of Newfoundland power through a Quebec corridor is dependent upon a demonstration of Newfoundland achieving markets.

I might add that no such condition was placed on the transmission of western gas through the provinces to Quebec or the Maritimes, and indeed if a province required such a corridor then the Government of Canada has no alternative but to invoke the constitution and accept its responsibilities in this regard. It has failed to do so, and its failure to do so stands out as a grave injustice to the people of Newfoundland because there has been, I might add, in conclusion, this will be my final word, there has been a letter of intent from the power authority of the State of New York to the Government of Newfoundland. That is the hands of the Government of Canada. It has been since last September yet we still have not had any move from the Government of Canada in this regard. I say that is to their eternal shame.

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

Amendment negatived; yeas, 10; nays, 14;

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to come back on Clause 47.

Clause 47 as amended agreed to.

On Clause 48-Amendments by Parliament.

[Page 50]

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 48. The Chair has been informed of one amendment, numbered P.C.-22, Clause 48, page 14.

[Translation]

It is an amendment numbered CP-22, Clause 48, page 14. This amendment has been put by the Official Opposition

[Text]

and I would like to invite the honourable Jake Epp to move the proposed amendment.

Mr. Epp: Thank you, Mr. Chairman.

Mr. Chairman, I would move that Clause 48 of the proposed constitution act, 1980 be amended by striking out line 26 on page 14 and substituting the following:

Government of Canada or the

[Translation]

The Joint Chairman (Mr. Joyal): Honourable Senator Asselin.

Senator Asselin: Mr. Chairman, I move:

That Clause 48 of the proposed constitution act, 1980, be amended by striking out line 26, on page 14, and substituting the following:

“Government of Canada or the”.

[Text]

The Joint Chairman (Mr. Joyal): The honourable Jake Epp.

Mr. Epp: Mr. Chairman, you will recall the debate yesterday on Clause 44 and what we had dubbed as the majority attainment amendment namely, that the government had withdrawn its old Clause 44 and had retained the integrity of the Senate.

This amendment would assure that the role and scope of the Senate could not be changed simply through the House or a federal initiative.

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable Jake Epp.

The honourable the Minister of Justice.

Mr. Chrétien: We cannot accept this amendment because there are some internal problems which have to be resolved in the House of Commons and Senate by us.

Take for example, if we were to accept the amendment, if there were to a change in the quorum of the Senate, we will have to consult the provinces

So I think, now we have dropped Clause 44, I would like to say that this amendment is absolutely unnecessary and could make it extremely difficult for us to operate. I think we should be able to operate in Ottawa by Ottawa people.

The Joint Chairman (Mr. Joyal): The honourable Mr. Epp.

Mr. Epp: Mr. Chairman, I accept the Ministers explanation on the same basis as I have done with one earlier, namely the change in Clause 4l, and now the change in Clause 44.

I believe the Ministers explanation is correct, and if there is unanimous consent I will withdraw the amendment.

The Joint Chairman (Mr. Joyal): Seeing that there is unanimous consent, the amendment is withdrawn.

Before calling the vote on Clause 48, the honourable Senator Roblin.

[Page 51]

Senator Roblin: Mr. Chairman, may I ask a question of the Minister on Clause 48, we find the expression “the Senate” but Clause 48 is subject to Clause 50. In Clause 50 under (d) we find the constitution could not be amended unilaterally, if I may put it that way, with respect to the powers of the Senate.

I wonder if the Minister could explain just what the powers of the Senate involve, and what I had in mind in particular, is the numbers, because it seems to me that under Clause 48, the government could reduce or increase the number in the Senate in any way it wished under that clause, even though the powers might not be affected.

I think the question of representation in the Senate is important—the number of Senators allotted to each province or whatever, is important and perhaps ought not to be excluded from the definition of powers. Could the Minister comment on that problem?

Mr. Chrétien: You know, to ask me about numbers, I think to change the number of Senators within each province we will have to go through the amending formula.

Senator Roblin: Could someone explain that to me a little more clearly, please? I have not quite understood the point.

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

Mr. Strayer: Clause 50 requires the use of the general amending formula for the things itemized therein, and (d) refers to the power of the Senate; (e) refers to the number of members by which a province is entitled to be represented in the Senate. So that would involve the provinces in the general amending formula to change the number of Senators representing provinces.

Senator Roblin: I now see that, Mr. Chairman, And I am sorry I was a little dense on the matter.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Senator Roblin.

Clause 48 agreed to.

The Joint Chairman (Mr. Joyal): On Clause 49, the Chair has not been informed that there has been any amendment in relation to that clause. Unless there is an intervention the Chair will call the vote on Clause 49.

Clause 49 agreed to.

On Clause 50-Matters requiring amendment under general formula.

The Joint Chairman (Mr. Joyal): On Clause 50, the Chair has been informed of three amendments. The first amendment is the amendment N-39, Clause 50, pages 14 and 15.

I would like to invite Mr. Robinson to move the amendment in the usual way.

Mr. Robinson: Mr. Chairman, I would like to propose the following motion with respect to Clause 50 of the proposed constitution act moved that Clause 50 of the proposed constitution act, 1980 be amended by:

(a) striking out line 31 on page 14 and substituting the following:

[Page 52]

50. (1) Subject to subclause (2) an amendment to the constitution of

and (b) adding immediately after line 10 on page 15 the following:

(2) The procedure prescribed by Clause 42 shall not be used in respect of an amendment to the Canadian Charter of Rights and Freedoms

[Translation]

Mr. Chairman, it is moved:

That Clause 50 of the proposed constitution act 1980 be amended by:

a) striking out line 3l, on page l4, and substituting the following:

“50(1) Subject to subclause (2) an amendment to the constitution of;”

b) adding immediately after line l0, on page l5, the following:

“(2) The procedure prescribed by Section 42 Shall not be used in respect of an amendment to the Canadian Charter of Rights and Freedoms.”

[Text]

Mr. Chairman, Clause 50 sets out certain procedural requirements for an amending formula. Senator Asselin has suggested that perhaps we might like to slip in another reference to the Senate in this particular amendment. I do not propose to take him up on that suggestion.

But I would like to explain, that the purpose of this amendment is to ensure that the fundamental rights and freedoms of Canadians as outlined in the Canadian Charter of Rights and Freedoms can only be changed, either added to, or subtracted from, through the regular amending process, and that they cannot be touched through the use of the referendum process.

Mr. Chairman, I am not going to make the arguments which have already been made by a number of witnesses who have appeared before this Committee and which I, myself made in connection with an earlier clause to the Minister.

I will simply say that it is my submission—and the submission of many witnesses who have appeared before us, including the Canadian Civil Liberties Association and others that one of the fundamental purposes of a Charter of Rights and Freedoms is to protect unpopular minorities.

Mr. Chairman, the effect of the amendment would be to ensure that at no time a simple majority, 5l per cent of Canadians with the regional majorities which, as I say, with great respect—regional majorities—are irrelevant in the consideration of fundamental rights and freedoms; they belong to all Canadians irrespective of regions: if this amendment is not to be accepted, what we are saying is that the referendum process through a 5l per cent majority, can take away the rights of minorities.

Mr. Chairman, I suggest, as I have suggested before, that this is the very antithesis of the purpose and represents the negation of the purpose of a Charter of Rights which is to protect minorities.

Mr. Chairman, I hope that the government will be prepared to accept this amendment, or at the very least, to consider the

[Page 53]

possibility of greater majority requirement to affect the Charter of Rights and Freedoms, such as a two-thirds majority if they are to be subjected to a referendum.

But, Mr. Chairman, I suggest that to allow the referendum process to affect these fundamental rights and freedoms of Canadians is a most inappropriate and unwise use of that particular instrument.

Thank you.

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

Mr. Robinson, The honourable the Minister of Justice.

Mr. Chrétien: Mr. Chairman, I do not think I can add to the many interventions on that subject.

As I have indicated earlier on the question of a referendum, all the rights in the constitution are equal before the people. I see no reason why we should change it at this time. As I have replied before, it is not advisable to give a special status to the Charter—it is well covered by the amending formula and it would be very difficult to change anything there.

In the final analysis, I have every confidence in the people of Canada.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister. Do I see other interventions on the proposed amendment?

Mr. Robinson, to conclude.

Mr. Robinson: Thank you, Mr. Chairman.

I did have a question for the Minister, although you, Mr. Chairman, I would like to know how the Minister answers the concern which has been expressed by a number of witnesses that, particularly in dealing with an amendment which may attempt to take away rights or freedoms, that when these rights and freedoms affect minorities, how can you justify permitting 5l per cent of Canadians to affect those minority rights?

Mr. Chrétien: I think it is a simplistic question because in the end you have to go through a very lengthy process of public discussion in Canadian society. Now, I do not wish to go through the entire mechanism that we have already discussed. But we go to the House of Commons; it has to be debated in all the assemblies of Canada; you need a certain number, depending on the amending formula to agree or disagree. There is another delay before you pass it.

So in my view, if we were to do that, it would necessitate a debate which would be the minimum.

Before problems occur there will be a debate in the House of Commons. There is a year, and after that there is a referendum and so on and so forth. So it is two years.

The types of fear that people sometimes have are things which sometimes emerge on the spur of the moment where people take a very nasty view or approach to a particular matter, or the bad instincts of the people emerge.

But when there is a lapse of time of the sort we have mentioned, possibly two years, for instance, then it has a very great chance of evaporating.

[Page 54]

Of course there is the theoretical question of if we could have a referendum the day after or the month after; but now, in our democratic system, there is so much that has to intervene, that even despite the theoretical questions, in practice the emotion of the day, as you know, how many times those things happen—the ugly side of the collective personality emerges on the spur of the moment—but after long debate and the democratic institutions coming into play and being involved, the chances of this happening are very slim.

Mr. Robinson: I have no other intervention other than to point out to the Minister that with respect, for example, to the Canadians of Japanese origin, that was not a case of one or two months; unfortunately, that sorry episode in Canadian history lasted over a number of years, and had there been a referendum on whether or not the actions of the government of the time were correct, I suspect that referendum might very well have passed.

Thank you very much, Mr. Chairman.

Mr. Chrétien: I would like to reply and I will be short.

The big difference is that at that time it was an Order in Council of the government; now it will take two years before this same rule could be applied—and that makes a big difference!

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

I see that honourable members are ready for the question on the proposed amendment.

A recorded vote is requested.

Amendment negatived: Yeas, 9; Nays, 14.

The Joint Chairman (Mr. Joyal): I would like to then invite honourable members to move on a next amendment. It is the amendment identified CP-23, Clause 50, page 14.

Mr. Epp: Mr. Chairman, before we call that motion I have got to raise a point of order.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp on a point of order.

Mr. Epp: Mr. Chairman, I raised this point of order earlier, as I think it is becoming quite evident to the members of the Committee, we will likely be at Clause 52 this evening.

We still do not have the amendment of the New Democratic Party to the resources question. That is to come just prior to the old Part VI. There is no way that I can entertain a major amendment, to have it presented to me and after e very brief time to pass judgment on it. I just do not think it is correct, I do not think it is the manner in which this Committee has operated over those long months and it is just not acceptable to me, Mr. Chairman, and I am raising it now so that this debate will not be such that when 6 o’clock comes I cannot finish the debate and that is why I am raising it at this point.

The Joint Chairman (Mr. Joyal): Honourable Bryce Mackasey.

Mr. Mackasey: May I ask—almost said Senator Epp. I would ask Mr. Epp a question.

[Page 55]

The Joint Chairman (Mr. Joyal): I see, honourable Bryce Mackasey, that there is a lot of confusion around this table on the right titles of the honourable members of this Committee.

Mr. Mackasey: Freudian slip, Mr. Chairman.

Mr. Epp, you make a valid case for having an opportunity of discussing the amendment. To be specific, how much time do you feel is fair and necessary to do adequate justice to the debate, this very major debate?

Mr. Epp: I cannot answer that, Mr. Mackasey. Maybe you could tell me the length and scope of it.

Mr. Mackasey: I am not being facetious, I…

Mr. Epp: I do not know. I read, for instance, in press reports that the government now has accepted international trade with federal paramountcy. If that is the case, that is obviously a major change from what we have heard earlier and that is why I am asking the question.

The Joint Chairman (Mr. Joyal): Maybe I should invite honourable-I should say Mr. Nystrom.

Mr. Mackasey: That would be a long debate.

The Joint Chairman (Mr. Joyal): To answer the request as put through by honourable Jake Epp.

Mr. Nystrom.

Mr. Nystrom: I certainly understand the frustration of senator Epp and I will do what I can, let us put it that way, I will do what I can to accede to his wishes.

Senator Asselin: When will it be?

Mr. Nystrom: At the earliest possible moment.

Senator Asselin: What does that mean?

Mr. McGrath: That means a phone call to Honolulu.

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

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, I am not trying to be difficult or obtuse about it, or obstructionist, but I would think that if we get to Clause 52 today and the amendment is of the length and scope and nature that we have been led to believe, that I will reserve the caveat I will move at that time, that now we have the amendment at whatever time this evening, that the matter be held over to be discussed tomorrow morning or whatever time is suitable.

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

I would like then to invite honourable Jake Epp to move the amendment that I have already called, CP-23, Clause 15, page 14, and advise honourable members that the French version is numbered . . . et la version française se lit P.C.-23, article 50, page 14.

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, thank you. I will go through the amendment more slowly than the others because there are changes in the wording in view of past clauses, or action taken

[Page 56]

on past clauses, so there will have to be words deleted relative to the amendment that you have before you. That is that Clause 50 of the proposed constitution act, 1980 be amended by

(a) Striking out line 34 on page 14 and substituting the following:

Procedure prescribed by Clause 41:

(b) Striking out paragraph 50(a) on page 14 and substituting the following:

(a) The office of the Queen and her status as head of state of Canada and of the provinces and the office of the Governor General and the Lieutenant Governor of a province;

And then, Mr. Chairman, the remainder of that amendment again should be struck because we have already taken care of the Senate in Clause 44 earlier. I hope that is clear, Mr, Chairman; if you want me to reread it in its entirety, I will.

Is that clear?

The Joint Chairman (Mr. Joyal): I think it is clear for everyone around this table and I understand that honourable Senator Tremblay would have the appropriate correction on the French version.

[Translation]

The Honourable Senator Tremblay has the floor.

Senator Tremblay: I think I do. However, I would appreciate your correction in case one is needed. Moved:

That Clause 50 of the proposed Constitution Act, 1980 be amended by

(a) striking out line 34 on page 14 and substituting the following:

“procedure prescribed by clause 41”

(b) substituting the following:

striking out paragraph 50(a) on page 14.

which means that the following words “la version anglaise de”, and “et à la modification de la version française de cet alinéa” have been struck out in French, The new clause reads thus as follows:

[Text]

b) substitution, à l’alinéa 50a), page 14, de ce qui suit:

«a) la charge de Reine et son statut de Chef d’état du Canada et des provinces, la charge de gouverneur général et celle de lieutenant-gouverneur;»

[Translation]

So therefore sub-clause (c) has been struck out altogether as well as the amendment which was proposed and concerned the Senate; the former clause Clause 44 has been struck out altogether.

Thank you.

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

[Text]

Honourable Jake Epp on the substance of the amendment.

Mr. Epp: Thank you, Mr. Chairman.

It gives me great pleasure, Mr. Chairman, to move this amendment and I am convinced that it will enjoy the support of all members around the table.

[Page 57]

Mr. Chairman, what the amendment does, one takes a look at the original, it would allow for the amendment of the Office of the Queen and what it does not do, that is the original clause, it does not clearly specify the office and the status of the Monarch in the country.

In fact, Mr. Chairman, many of us have been concerned over the years at the attempts by especially this government to reduce the role of the monarchy and also to substitute in terms of the status of the Queen, that in fact the head of state is not Her Majesty but rather, the Governor General. What this amendment does is clarify in our constitution very precisely that Her Majesty is the head of state of Canada, no one else, as well as of the provinces. And I believe it is important, Mr. Chairman, if we want to retain that which we have built upon, namely a constitutional monarchy, and if Canadians do not want a republican system, which I do not, which I hope members on both sides of the table do not want, then this amendment would guarantee that Canada remains a constitutional monarchy.

It also speaks to the sovereignty of the nation, and I believe if one had looked at our amendments starting with the affirmation of the sovereignty of God through the powers coming through the Crown, the protection of the Crown, then this clause, what it does, it finally clarifies the role of the monarchy in Canada.

Now, I am concerned, Mr. Chairman, that when members of Parliament take the oath or solemnly affirm, they affirm fidelity and allegiance to the monarchy, and every member who sits in the House of Commons has done that, every Senator has done that, otherwise they cannot take their seat.

Yet I am discouraged to read that a member sitting at this table who has taken that oath feels that, through clause 50 and through clause 42, that Canadians, within two years of the passing of this abomination, that they will be rid of the monarchy, quote unquote. That man is Mr. Lapierre.

Mr. Chairman, that is one of the fears that many Canadians have and that is through clause 42, through the referendum procedure, not only will the monarchy be removed but then the very essence of the constitutional monarchy is gone, and Mr. Lapierre understands that and I understand that and I am trying to make sure that that objective will be prevented.

So, Mr. Chairman, I believe that the rights that we enjoy through the parliamentary system, the right through common law, the rights that are protected through the Crown, that is important that in our constitution we guarantee the role and status of the monarchy. And I for one want to retain that heritage. I for one want to retain the constitutional monarchy and I want to avoid and prevent any means whereby the constitution could be amended in such a way that in fact a republican system of government could be introduced through this clause and that is why the amendment.

The Joint Chairman (Mr. Joyal): Thank you very much, Honourable Jake Epp.

Mr. Nystrom.

[Page 58]

Mr. Nystrom: Just to speak on a point of order, Mr. Chairman, it does not concern Mr. Epp’s amendment, but I think Mr. Epp made a reasonable request a few minutes ago and after considerable deliberation and due thought and due reflection and out of consideration for my colleagues we have decided to circulate the resource amendment.

Mr. McGrath: I have just read it, Mr. Chairman, and I would classify it as a marriage contract between the New Democratic Party and the Liberals.

Mr. Epp: Mr. Chairman, I want to thank Mr. Nystrom…

Mr. Chrétien: For the same terms in the provinces in the summer.

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

On the very amendment as moved by honourable Jake Epp, I would like to invite honourable Bryce Mackasey.

Mr. Mackasey: Mr. Chairman, it is 6 o’clock so I would rather use the next few minutes that may be needed to circulate the resource document and proceed at 8 o’clock.

The Joint Chairman (Mr. Joyal): I see that honourable members would agree at this point to adjournment until 8 o’clock this evening.

[Translation]

The meeting is adjourned until 8 o‘clock to night.

EVENING SITTING

The Joint Chairman (Mr. Joyal): Before I invite the honourable members of the Committee to come back on the amendment as moved by the honourable Jake Epp it is my pleasure on behalf of honourable Senator Hays and I am quite sure on behalf of all of the honourable members of this Committee to welcome the Leader of the New Democratic Party, Mr, Broadbent. We are pleased to have you with us.

When we adjourned for dinner tonight, we had an amendment moved by honourable Jake Epp to Clause 50 and Honourable Jake Epp had moved the amendment in the usual way. I had honourable Bryce Mackasey on my list but I see that honourable Bryce Mackasey is not attending our meeting at this point.

I see that Mr. Jean Lapierre would like to speak on the amendment.

[Translation]

Mr. Lapierre.

Mr. Lapierre: Thank you, Mr. Chairman. I am almost making a point of order, since a little earlier, during our discussion before dinner, Mr. Epp mentioned some words deemed to be mine, related to monarchy. I would like him to understand that my personal conception of a modern Canada reflects the feelings of my generation, or at least so I believe. This conception would imply, sooner or later, the acknowledgement of a Canadian head of state.

When it is said that I would want to abolish monarchy within two years, I would like to stress that I believe in this system of constitutional monarchy. I am not a republican for

[Page 59]

that, except that with all due respect, even if I dare say that The present Queen is absolutely charming and gracious, I would personally prefer having a Canadian head of state. Therefore, my oath of allegiance cannot be questioned because until further notice, we still have the same Queen and I have here my oath of allegiance, as must be done in order to sit in this House.

The Joint Chairman (Mr. Joyal): The Honourable Minister of Justice.

[Text]

Mr. Chrétien: Mr. Chairman, I do not want to be long on that. I will explain why I do not want to accept this amendment on behalf of the government. The text that you have in front of you coming from the government is a very clear one. It is the one that had been agreed upon by all the first ministers in 1970 in Victoria and it has been agreed upon by the father of Bill Bennett, Wacky Bennett, W.A.C. Bennett. I am sorry, I made a mistake, W.A.C., but it is difficult for me.

Anyway I have known him and I had good relations with him. In fact when we established a national park on the west coast of Vancouver Island I had to work with Mr. Bennett and he was very pleased to help me to make one of the most beautiful national parks on Vancouver Island. But it was agreed by Mr. Strom and Mr. Thatcher and the Governor General today, Mr. Schreyer, and so on. So we have had exactly the same text that was agreed to at that time, so there is no problem there, that we want to keep our head of state of Canada, Her Majesty, in the same way that we have done in the tradition.

In the amendment of Mr. Epp, there is one flaw. He calls her the Head of State of the provinces. I do not think that she can be the Head of State of the provinces because they are not states. There is only one national government and she is the Queen of all Canada. I do not think that we want to make that change.

On top of it, there is another component of that motion and—anyway I guess for the reason I gave, it is good enough.

Mr. Nystrom: Would you repeat that please.

Mr. Chrétien: For Her Majesty, the Queen, I would say that we are not changing the status at all. We want to keep Her Queen of Canada, that is clear and simple, and we are using the terms that were used in 1970 and agreed upon by all the heads of government at that time.

The other comment that I wanted to make was about this amendment of Mr. Epp’s in relation to the Senate. I do think that the method of selecting the senators he talked on, he wants to say “the Senate” but as I explained earlier that we might decide to change the rules of the Senate without changing the composition of it and if we were to just deal with it the way that it is proposed by Mr. Epp, it will completely involve the provinces and so on.

Mr. Epp: Point of order.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp on a point of order.

[Page 60]

Mr. Epp: Are you talking about Clause 50(c) and Clause 50 (d)?

Mr. Chrétien: I am talking about Clause 50(d).

Mr. Epp: Mr. Minister, I want to tell you I never moved that.

Mr. Chrétien: You dropped that.

Mr. Epp: I never moved it, so I did not have to drop it.

Mr. Chrétien: Sorry, in my document it was there. The wording is no longer there, fine, so I do not have to complete.

Of course you know there are no parts of the constitution that should be excluded from the wish of the people of Canada. One of the bases of this change is that any aspect of the Canadian constitution can be eventually amended through the normal amending process.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Minister. The honourable Perrin Beatty.

Mr. Beatty: Mr, Chairman, I wonder whether I could ask the Minister, the Minister has pointed out one technical flaw in Mr. Epp’s amendment where you have suggested that it would not be proper to designate the Queen as head of state of the provinces.

If Mr. Epp were willing to have an amendment moved to the amendment he has proposed, to have it subamended to strike that portion of the amendment, would the amendment be acceptable to the Minister?

Mr. Chrétien: We had a long discussion about this problem with the First Minister in 1970 and it was discussed again in 1979 and it was agreed that we should not make any move, and remain in the situation which we are. So I do think that speaks for itself. We are having the text that has been agreed upon in 1970 by all the heads of government at that time and agreed by the provinces and you know me, the last thing I want is to create any real problem with the provinces. So in the spirit of the new federalism, I do not think we need that amendment.

Mr. Beatty: Mr. Chairman, the Minister’s answer to Mr. Epp I find quite chilling when he talks about the need to ensure that any provision within the constitution can be changed. What we are dealing with here is the whole root of our constitutional monarchy, the fact that we are subjects of Her Majesty and that power in Canada is deemed under our system of constitutional monarchy to come from the Crown, and the protection of subjects of Her Majesty deemed to come from the Crown.

I think the fact that the Minister would single out these provisions and stress the fact that he feels it should be capable of amendment in the future, if it is deemed desirable by Canadians at that time, should be of concern to all Canadians who believe very strongly, as I do, that the constitutional monarchy is protection for Canadians, that it is part of our Canadian tradition which should be left inviolate and it should be entrenched in our constitution and put beyond the ability to be abolished.

Consequently—I am sorry, does the Minister have any-…

[Page 61]

Mr. Chrétien: Because, you know, I would like to tell you, you have talked about the Vancouver formula and in the Vancouver formula they have exactly the same words as in ours. When I see you trying to create some possible problem; the provinces put it that way there, too, so I think we all agree on that; and I will not try to start a debate on the monarchy in Canada. It is a problem that we are happy with and we do not want to talk about it. We want to keep it as it is and I think that the type of innuendo that we might be capable of this and that, it is not fair. There are some Canadians; I have been in London one day and some of the greatest speeches on that subject are at Hyde Park, and they are not all the time preferable. I have heard one and if it had been said in Canada, it would have been terrible. But I just state that I do not want in have a controversy about it. We have the text agreed to by the provinces; we have the text recommended this summer by the provinces; and I think that should be good enough for Mr. Beatty.

Mr. Beatty: Mr. Chairman, there is no innuendo; it was the Minister’s own words. The Minister this evening said that he wanted to ensure that if Canadians chose to do so they could change that provision of the constitution. That is precisely what he said. It is not a matter of innuendo, it is on the record, and Canadians from coast to coast heard the Minister say flint.

What we are saying is that this is one element of the institution that should be reserved and by beyond amendment. It should be permanent protection.

Mr. Irwin can ask to be put on the list to make a contribution. I think we would be grateful if he has something to contribute. I wonder if you could put Mr. Irwin on the list, Mr. Chairman, and maybe he could wait.

Mr. Chairman, the Minister‘s statement speaks for itself. It is available for Canadians to look at. We believe that the constitutional monarchy should be protected in our constitution. The Minister should be aware of the fact that unlike the tune in which the Vancouver consensus was developed, the Minister in this resolution is incorporating a provision for a referendum, for example, to change the constitution which was not included in the original Vancouver consensus. I would remind him that is a very significant change. The position of members on this side of the table, Mr. Chairman, is that the constitutional monarchy has served Canadians well. It is our in; that Canadians want to see it entrenched in the constitution and put beyond change and that is why we will be voting to support Mr. Epp’s amendment.

If the government chooses to move a subamendment which would strike reference to Her Majesty as head of state of a province that is acceptable to this side, and should not be seen by any member to be an impediment to his vote on this particular amendment. If an amendment is moved by government members on this we are prepared to accept that, but we believe that the essential principle of protection for the constitutional monarchy is one which Canadians want to see included in our constitution. Thank you, Mr. Chairman.

[Page 62]

The Joint Chairman (Mr. Joyal): Thank you, the honourable Perrin Beatty.

Mr. Chrétien: It is included and I want to read the text that was agreed upon by some provinces during the summer and it says that notwithstanding Clause 6 and Clause 7 the following matter may be amended only in accordance with the procedure Section-and refers to “the Office of the Queen.”

It is exactly the same words we are using.

[Translation]

Senator Asselin: On a point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): The Honourable Senator Asselin.

Senator Asselin: I would like to know if the confident words of the minister will bring Mr. Lapierre to take back his observations on monarchy.

Mr. Lapierre: The words of the minister certainly comfort me, just as everything he has said from the start.

There is no discrepancy between my personal opinion on monarchy and the government’s position which is easily justifiable and protects monarchy, and I recognize this for now. It is all very well and when I will want to make changes, I will try to get elected to some other job.

[Text]

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

Mr. Hawkes: Thank you. Mr. Chairman, I wanted to ask the Minister what his reaction was to the first part of our amendment which simply indicated that the clauses which followed, the Office of the Queen, the Canadian Charter of Rights and Freedoms, the commitments relating to equalization and regional disparity, the powers of the Senate, the number of members by which a province is entitled to be represented in the Senate, the right of a province to the number of members in the House of Commons and the principle, the very basic principle of proportionate representation, whether or not you are willing to accept the first part of the amendment which would restrict changes on those very fundamental aspects of our society to clause 41 atone, that which requires the concurrence of the elected people in provincial legislatures.

What you have done in the motion which you have proposed is to Subject Canadians to that very wrenching experience of a referendum upon the will of the House of Commons and the Senate alone.

It is possible that voters in six provinces of Canada could take away representation in the House of Commons or in the Senate from the other four.

Surely, those kinds of possibilities should be of some concern to you. If they are not, then they certainly are of considerable concern to me.

I am wondering if you have any willingness to protect the Queen and her status as Head of State of Canada. Do you

[Page 63]

have any willingness at least to protect Canadians from the wrenching experience of a referendum on these things which are so fundamental to our society?

Mr. Chrétien: Everything that is in the constitution is protected in the constitution. We have provided a mechanism to amend the constitution. There will be an amending formula. If there is deadlock, that can be broken by a referendum.

That applies to the whole Canadian constitution.

We do not want two constitutions, but one constitution with some mechanism for all parts of the constitution.

Mr. Hawkes: In the debate the other night, I thought after the passage of one hour that we had at least been able to get you to admit that there was a bit of a flim flam involved in the words “deadlock breaking mechanism”, and that there are three ways in the future in which to amend the constitution of Canada. The first way is clause 41 with the concurrence of the legislatures…

The Joint Chairman (Mr. Joyal): Mr. Hawkes, I am sorry to interrupt you; but we are dealing with an amendment the Chair has received. That amendment deals with the office and status of the Queen as Head of State of Canada.

At this point we are not discussing the amending formula, the referendum or how we should interpret the referendum or a second referendum.

There are other sections of the proposed motion where such a debate could be called and the Chair would certainly receive any intervention on that aspect.

But if there are to be any discussions and questions to the Minister then they should directly relate to the amendment.

The amendment is very specific and clear in terms of its contents. It is the office and status of the Queen as Head of State of Canada and of the provinces.

That is why I reminded the honourable member that that is the line of questioning which he should be invited to pursue with the hon. minister of Justice.

Mr. Hawkes: On a point of order, Mr. Chairman. But I believe our amendment begins Clause (a) striking out line 34 on page 14 and substituting the following:

Procedure prescribed by Clause 41.

And the government proposals read “by Clause 41 or 42”. I believe it is a very critical part of our proposed amendment that these parts of the Canadian constitution should be changed by concurrence with at least some legislatures, which is Clause 41.

The Government proposes to change it either with or without the concurrence of provincial legislatures through a referendum mechanism. So am I not relevant?

The Joint Chairman (Mr. Joyal): That is why your first question was relevant, which I admitted, because it was in direct relation with that interpretation.

[Page 64]

But the second question was phrased in such a way that it was more in the general context of almost every kind of interpretation that one could give to the referendum formula.

I thought that question would be more appropriate in direct relationship or when we were discussing specifically Clause 41 and Clause 42. That is why I would like your question to be phrased always in relation to the proposed amendment. That is why I allowed the first question.

As I have said to the honourable member, the Chair tries to listen very carefully to all questions in order to be in accordance with our rules of procedure and debate in the context of questions which should be asked of the Minister in terms of understanding the proposed amendment and to conclude if such an amendment should be voted or defeated by hon. members around this table.

Mr. Hawkes: I will try and work within that context.

Is the minister saying that there is absolutely no flexibility, that he prefers a system where these parts of the constitution could be recommended by method number one, with the concurrence of the provinces or by method number two, which is the referendum?

Mr. Chrétien: I do not think that l have to add that it is the policy of the government that all parts of the constitution can be amended by Clauses 41 and 42.

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

The Chair understands that there are no more interventions on that very amendment.

I would like to invite the honourable Jake Epp to conclude on the proposed amendment.

The honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

Since moving the amendment prior to the dinner hour, I have had a brief opportunity to look further at what role the Monarchy should play in the eyes of our present Prime Minister.

From his writings, that is not a very happy scene.

I can go back prior to 1968. I can go to 1968 itself; I can go after 1968.

That vision of our present Prime Minister and his view of the Monarchy, at least according to what the has written—just to give you one example, in 1968 after a Liberal convention at which time the Quebec Liberals passed a resolution to abolish the Monarchy, the Prime Minister said this about that event. He classed the Queen:

Below skiing and snowshoeing.

An hon. Member: Shame!

Mr. Epp: Mr. Minister, I am not convinced, because I know that under your amending proposal and with some of the attitudes as expressed by one of the members around this table, you now have in place, though I believe you, yourself, would not use it, you now have put into place or are going to

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put into place the means whereby the Monarchy could in fact be ended.

If you end it, you have ended what Mr. Beatty has been talking about—our parliamentary system, our constitutional monarchy and you have in fact moved a giant step towards a republican system.

That is the effect that you are, if not saying you want that to happen, nevertheless it is the effect of the amendment and your proposal raises the possibility exactly as I have described it.

It is on that basis, Mr.Chairman, that I will rest my case.

Mr. Chrétien: I do not propose to make any comment, other than to say I have made the policy of the government very clear, which is that we want to maintain that institution in Canada.

Now, you have referred to an article about a motion some 13 years ago at a convention. But all I can tell you is that there is no problem. I do not wish to become involved in a controversy about something that will be strongly entrenched in the constitution with the same words that were suggested to us during the course of the negotiations during the summer by the provinces.

Mr. Epp: Mr. Chairman, I believe as the mover of an amendment I have the last word in rebuttal.

I want to say to you, Mr. Minister, that during the summer debate when those words were debated and agreed to, what was not agreed to was the referendum by the provinces; the provinces did not agree to it. It is the referendum method which now makes those words weak.

The Joint Chairman (Mr. Joyal): Thank you very much, the honourable Jake Epp.

I understand hon. members are ready for the question; I also understand that there has been a request for a recorded vote.

Amendment negatived: Yeas, 7; Nays, 16.

The Joint Chairman (Mr. Joyal): I would like to invite hon. members to move on the next amendment in relation to Clause 50, an amendment identified as G-43, Clause 50, pages 14 and 15.

[Translation]

This amendment is identified as G-43, Clause 50, pages 14 and 15. It is proposed by the government party

[Text]

and I would like to invite Mr. Irwin to move the amendment in the usual way.

Mr. Irwin: Thank you, Mr. Chairman.

I am pleased to move that Clause 50 of the proposed constitution act, 1980 be amended by (a) striking out lines 35 to 37 of the French version on page 14 and substituting the following:

(a) la charge de Reine, celle de gouverneur general et celle de lieutenant-gouverneur;

(b) striking out lines 1 and 2 on page l5 and substituting the following: Senate;

[Page 66]

(f) the method of selecting senators and the residence qualifications of senators;

and (c) relettering the subsequent paragraphs accordingly.

[Translation]

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

Mr. Corbin: Mr. Chairman, I move:

that Clause 50 of the proposed Constitution Act, 1980 be amended by

(a) striking out lines 35 to 37 of the French version on page 4 and substituting the following

[Text]

«a)la charge de Reine, celle de gouverneur général et celle de lieutenant-gouverneur; »

[Translation]

(b) striking out lines 1 and 2 on page 15 and substituting the following: “Senate;

(f) the method of selecting senators and the residence qualifications of Senators;” and

(c) relettering the subsequent paragraphs accordingly.

Thank you.

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

Mr. Bockstael: Thank you, Mr. Chairman. I would like to ask the minister a question so that his reply will appear in the official minutes and proceedings.

Mr. Minister, any time throughout our discussions on this proposed resolution, you have given us the assurance that some clauses were protected by different sections. For example, we were told that our concerns about Section 50 were met in Section 43.

Now, to dispel any of the fears of the people in Manitoba whom I represent, I would ask you to consider the following, provision of Section 50:

An amendment to the Constitution of Canada in relation of the following matters may be made only in accordance with a procedure prescribed by Section 41 or 42:

Now, the Francophones in Manitoba are extremely concerned that the rights granted under the Manitoba Act of 1870 could be taken away from them one day by a unilateral action of the Manitoba government. Would it be necessary to add the words “Section 23 of the Manitoba Act” as a subsection (h) to Clause 50 so that it could not be changed without prior approval or without applying the procedures prescribed in Sections 41 or 42.

Can you assure us that their rights will be protected? Or, do you agree that another subsection should be added to clause 50?

Mr. Chrétien: Well, like Section 133, since the Manitoba Act is in the Constitution, it cannot be amended without the consent of the Parliament of Canada. It is a provision which applies only to Manitoba and, therefore, can only be amended by that province and by the Government of Canada.

[Page 67]

I would like to assure the Francophones of Manitoba that their rights to education in French are reaffirmed in Section 23. In addition to the guarantees they have under the Manitoba Act for matters relating to education, Section 23 has granted them a constitutional right which grants all Franco phones outside Quebec the same educational rights as the Anglophones in Quebec. Also, to amend Section 23 would require the consent of several provinces. In this way, Francophones in Manitoba have the double protection of the Manitoba Act and Section 23, regarding education rights, which can only be amended through the amending formula of Sections 41 and 42.

So, it is unnecessary to mention the Manitoba Act or Section 133 at Section 50 because it is a strictly bilateral matter, if l may use that expression, between Manitoba and Canada.

Mr. Bockstael: Thank you.

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

[Text]

Mr. Hawkes.

Mr. Hawkes: Mr. Chairman, the amendment which was not in the Minister’s original package of material on this clause that is here now is the method of selecting senators, if that is an addition in content, can the minister give us an explanation?

Mr. Chrétien: Yes. I made the point yesterday quite clearly that the senators, like the government, believe-and a lot of provincial governments believe-that the Upper House might or will be eventually changed.

This was the subject of a long discussion in the summer with the provinces.

As we have decided that senators themselves have produced a report in which they are proposing some change and reform to the Senate, when we withdrew Clause 44 yesterday I said let us do the job together rather than going about it piece by piece.

So that is why we have left it as it is, knowing that some day there will be a reform of the Upper House. There can be no doubt about it. There is a great desire in the Upper House and also a desire on the part of the provinces to make it more in keeping with the realities of Canada.

I am sure honourable senators are interested in that.

So we decided to leave it, in view of that, as it is for the time being.

Mr. Hawkes: Did somebody bring to your attention the possibility that some other part of this revision in fact threatens the current method of appointment to the Senate?

Did somebody bring to your attention the fact that the commission of this did in fact threaten in some fashion the present method of appointment? It was not in your first draft and it was not in your second draft; but we find it here today.

[Page 68]

Mr. Chrétien: Mr. Tassé will give you a technical explanation.

Mr. Tassé: Perhaps I can just explain that, in effect, this was an oversight.

When we asked ourselves, on reviewing the text, how the mode of selection of senators could be affected or changed under this proposal, we came to the conclusion that, in effect, it could be done under Clause 48, that is by Parliament, the House of Commons and the Senate alone.

We thought this was not the right thing, that in effect it should be protected in the sense that it should be part of that Clause 50 which requires that a change be made to the method of appointment of Senators to be done in conjunction with Parliament and the provinces under Clause 41.

So it is a clarification to ensure that the method of selection of senators be done under Clause 41 rather than under Clause 48, which would not have required the approval of the provinces.

Mr. Hawkes: It could be done by referendum?

Mr. Tassé: Yes, like any other provision contained in Clause 50.

Mr. Chrétien: A deadlock breaking mechanism.

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

The Chair understands that honourable members are ready for the question. Amendment agreed to: yeas, 15; nays, 4.

The Joint Chairman (Mr. Joyal): I would like to then invite the honourable members to come back on Clause 50.

Clause 50 as amended agreed to on division.

On Clause 51—Consequential amendments.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 51.

On Clause 51 the Chair has been informed of two amendments. The first one is to be moved by the government party, you will find it with the number G—44, revised Clause 51, page 15.

The first amendment is number G-44, revised Clause 51, page 15. This amendment is moved by the government party, and l would like to invite Mr. Irwin to move the amendment in the usual way.

Mr. Irwin: Thank you, Mr. Chairman.

I am pleased to move that Clause 51 of the proposed constitution act, 1980 be amended by

(a) Renumbering Clause 51 as Subclause 51(1); and

(b) Striking out lines 15 to 17 on page 15 and substituting the following:

(2) Act, 1949 referred to in item 22 of Schedule I to this Act and Parts III and IV of this Act are repealed.

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(2) When Parts III and IV of this Act are repealed, this section may be repealed and this Act may be renumbered consequential upon the repeal of those Parts and this clause by proclamation issued by the Governor General under the Great Seal of Canada.

Thank you, Mr. Chairman.

[Translation]

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

Mr. Corbin: Mr. Chairman, I move

That Clause 51 of the proposed Constitution Act, 1980, be amended by

(a) re-numbering Clause 5l as sub-clause 5l(1); and

(b) striking out lines 15 to 17 on page 15 and substituting the following:

(2) Act, 1949 referred to in item 22 of Schedule I to this Act and Parts III and IV of this Act are repealed.

(2) When Parts III and IV of this Act are repealed, this section may be repealed and this Act may be renumbered consequential upon the repeal of those parts and this clause by proclamation issued by the Governor General under the Great Seal of Canada.

Thank you.

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

[Text]

Honourable Minister of Justice on the proposed amendment to Clause 51.

Mr. Chrétien: It is all technical and I do not know, just for clarification. Mr. Tassé can give you a short explanation.

Mr. Tassé: I might give the short technical explanation for the change in Schedule I.

There is a new item, item number 3, and this in effect has changed the number of the other items and that is why here, if you look at the original text of the resolution, there is reference to the item 21, and because of this additional item I have just referred to, this should read item number 22. That is the only change, Mr. Chairman, which is made to this section.

I am sorry, Mr. Chairman. I understand that there is another subclause that is being proposed to Clause 51.

Would you wish me, Mr. Chairman, to read the text?

The Joint Chairman (Mr. Joyal): The Chair, according to the rules, should have a copy of the proposed amendment and if there is a change to be made to the amendment that was so moved by Mr. Irwin I then will receive certainly that subamendment.

[Translation]

Mr. Tassé: I am sorry, Mr. Chairman.

This has been read and the explanation is quite simple: when Parts IV and V are obsolete, this section will allow the re-numbering of the sections of the constitution.

The Joint Chairman (Mr. Joyal): Mr. Tassé, you talked about Parts 1V and V, but the amendment deals with the repeal of Parts III and IV of the present act. There may be a mistake in the text that has been read. At least in the French version. But 1 noticed that the English version reads the same.

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[Text]

If you mention Part IV and V, I draw your attention to the fact that the amendment speaks of Part III and IV.

Mr. Chrétien: There is a problem of concordance in the text. It is Part III and Part IV.

The Joint Chairman (Mr. Joyal): So I want to be very clear because the amendment at the moment speaks of Part III and IV, not of part IV and V.

So I do understand that the text as moved by Mr. Irwin and read in French by Mr. Corbin is the appropriate text and a vote shall be called on that text without any correction?

Mr. Crombie: Some explanation?

Mr. Epp: Can we have an explanation?

The Joint Chairman (Mr. Joyal): Yes, that is why I invited the honourable Minister through his Deputy Minister, Mr. Tassé, to answer such a question and the question as put through by the honourable Jake Epp is to give a proper explanation for those amendments, and it seems that it has not been well understood by the honourable member why the technical amendment has been moved at this point.

Mr. Tassé: Mr. Chairman, there are two amendments, the first one would change the number of item 21 to item 22 because there is an additional item that will be proposed to be inserted in the schedule.

Senator Tremblay: May I ask a question, then?

[Translation]

It is moved that Clause 51 of the proposed Constitution Act be amended by « (a) renumbering Clause 51 as Subclause 51(1)»;

Which clause is it?

Mr. Tassé: Clause 51, Senator Tremblay, which will become 51(1).

Within this clause, Item 22 of Schedule 1 is mentioned. It is a minor correction since in the original version of the resolution, Item 21 was mentioned.

Senator Tremblay: But if there is a 51(1), there must be a 51 (2) somewhere.

Mr. Tassé: I will come to it.

The Joint Chairman (Mr. Joyal): This is the next subsection, Senator Tremblay.

Mr. Chrétien: 51(2) deals with Parts III and IV.

Senator Tremblay: And it starts with “item 22”.

Mr. Tassé: It starts with the word, “when” in English and, in French, with «dès Fabrogation des parties III et IV de ln présente loi, le gouverneur général peut».

Senator Tremblay: So, it is 51(2).

Mr. Tassé: Yes.

Mr. Chrétien: Everything is clear.

[Text]

The Joint Chairman (Mr. Joyal) : It is clear for the Chair, I hope it is clear for all the honourable members around the table.

[Page 71]

Amendment agreed to.

The Joint Chairman (Mr. Joyal): The Chair apologizes; there is another amendment to the proposed Clause 51. It is an amendment numbered CP-24, Clause 51, page 15.

[Translation]

It is an amendment numbered CP-24, Clause 51, page 15.

[Text]

If some honourable members of the Committee do not have a copy of the proposed motion I will make sure that the clerk extends the copy.

It is an amendment moved on behalf of the Official Opposition and I would like to invite honourable Jake Epp to move the amendment.

Mr. Epp: Mr. Chairman, in view of the defeat of the motion to split the package, I believe this amendment is now redundant and I will withdraw it.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp.

The Chair would then like to invite honourable members to come back on Clause 51 as amended.

Clause 51 as amended agreed to.

The Joint Chairman (Mr. Joyal): The next amendment that the Chair has received a copy of is an amendment that would—honourab1e Jake Epp on a point of order.

Mr. Epp: Mr. Chairman, before you start on the new Clause 51, I take it, that you are now going to be proceed to?

The Joint Chairman (Mr. Joyal): Yes, honourable Jake Epp.

Mr. Epp: Mr. Chairman, you will notice that Mr. McGrath has tabled an amendment with the Chair and I would like to indicate that he will be here in a few minutes. There are certain difficulties that he is encountering and I would ask the indulgence of the Committee, I believe we can proceed and take his clause when we dispense with the others, I think that can work out.

The Joint Chairman (Mr. Joyal): Thank you, honourable Jake Epp, for your point of order.

The Chair can say that there are in fact three amendments that will be called by the Chair following the adoption of Clause 51.

The first amendment is an amendment moved on behalf of the New Democratic Party; the second amendment is a subamendment to that amendment and moved by the government party; and finally, there is a subamendment that should be moved by honourable James McGrath.

So the Chair is in a position to call first the main amendment, which is the amendment moved on behalf of the New Democratic Party, and then invite the government party to move the subamendment, and the Chair will open the debate on the subamendment so moved by the government party, and after that the Chair will call the amendment so moved by honourable James McGrath.

So at this point I would like to invite Mr. Broadbent on behalf of the New Democratic Party to move the amendment number N-40, new clause following Clause 51, page 15.

Mr. Broadbent.

[Page 72]

Mr. Edward Broadbent (Leader, New Democratic Party): Thank you, Mr. Chairman.

I would like to say at the outset that it is a pleasure to be before this important and historical Committee and the amendment that I am about to move deals with several aspects of resource control in Canada, but as a reflection of the ecumenical spirit with which we are approaching constitutional change in Canada I should like to say al this point my party has every intention of supporting the amendment to be brought forward by Mr. McGrath which concerns the issue of the control of offshore resources.

It shows that from time to time when the Conservatives are reasonable, we can agree with them; and from time to time when the government is reasonable, we agree with them.

Having said that, Mr. Chairman, I move that the proposed constitution act, 1980 be amended by (a) Adding immediately after line 17 on page 15 the following headings and sections:

Part VI

Amendment to the constitution act, 1867

52. (1) The constitution act, 1867 (formerly named the British North America Act, 1867) is amended by adding immediately after Section 92 the following heading and section:

Non-renewable natural resources, forestry resources and Electrical Energy 92A(l). In each province, the legislature may exclusively make laws in relation to (a) exploration for non renewable natural resources in the province, (b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom, and (c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy, whether or not such production is exported in whole or in part from the province.

(2) In each province, the legislature may make laws in relation to the export from the province of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

(3) Nothing in subclause (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subclause and, where such a law of Parliament and a law of a province conflict the law of Parliament prevails to the extent of the conflict.

(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of (a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and (b) sites and facilities in the province for the generation of electrical energy and the production therefrom, whether or not such production is

[Page 73]

exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

(5) The expression “primary production” has the meaning assigned by the Sixth Schedule.

(6) Nothing in subclauses (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this Clause 53. The said Act is further amended by adding the following Schedule:

THE SIXTH SCHEDULE

Primary production from Non-renewable Resources and Forestry Resources

1. For the purposes of Section 92A of this Act, (a) production from a non-renewable resource is primary production therefrom if

(i) it is in the form in which it exists upon its recovery or severance from its natural state, or

(ii) it is a product resulting from processing or refining the resource, and is not a manufactured product or a product resulting from refining crude oil, refining upgraded heavy crude oil, refining gases or liquids derived from coal or refining a synthetic equivalent of crude oil; and (b) production from a forestry resource is primary production therefrom if it consists of sawlogs, poles, lumber, wood chips, sawdust or any other primary wood product, or wood pulp, and is not a product manufactured from wood.

and

(b) Renumbering Part Vi as Part VII, renumbering all subsequent sections accordingly and making such other changes in numbering as are consequential thereto.

[Translation]

Now, in the other official language, I should like to move:

That the proposed Constitution Act, 1980 be amended by:

(a) Adding immediately after line 17 on page 15 the following headings and sections:

PART VI
AMENDMENT TO THE
CONSTITUTION ACT, 1867.

52. (1) The Constitution Act, 1867 (formerly named the British North America Act, 1867) is amended by adding immediately after Section 92 the following heading and section:

Non-renewable natural resources, forestry resources and electrical energy. 92 A.(1) In each province, the legislature may exclusively make laws in relation to

[Page 74]

(a) exploration for non-renewable natural resources in the province,

(b) development, conservation and management of non- renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom, and

(c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy, whether or not such production is exported in whole or in part from the province.

(2) In each province, the legislature may make laws in relation to the export from the province of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

(3) Nothing in sub-clause (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that sub-clause and, where such a law of Parliament and a law of a province conflicts, the law of Parliament prevails to the extent of the conflict.

(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of

(a) non-renewable natu¡al resources and forestry resources in the province and the primary production therefrom, and

(b) sites and facilities in the province for the generation of electrical energy and the production therefrom.

Whether or not such production in exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

(5) The expression “primary production” has the meaning assigned by the Sixth Schedule.

(6) Nothing in sub-clauses (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this clause.

53. The said Act is further amended by adding the following Schedule:

THE SIXTH SCHEDULE
PRIMARY PRODUCTION FROM
NON-RENEWABLE RESOURCES AND
FORESTRY RESOURCES

1. For the purposes of Section 92A of this Act,

[Page 75]

(a) production from a non-renewable resource is primary production therefrom if

(i) it is in the form in which it exists upon its recovery or severance from its natural state, or

(ii) it is a product resulting from processing or refining the resource, and is not a manufactured product or a product resulting from refining crude oil, refining upgraded heavy crude oil, refining gases or liquids derived from coal or refining a synthetic equivalent of crude oil; and

(b) production from a forestry resource is primary production therefrom if it consists of sawlogs, poles, lurnber, wood chips, sawdust, or any other primary wood product, or wood pulp, and is not a product manufactured from wood.

(c) Renumbering Part VI as Part VII, renumbering all subsequent sections accordingly and making such other changes in numbering as are consequential thereto.

[Text]

Mr. Chairman, members of the Committee, I have just moved my party’s amendment to confirm in the constitution the provinces’ right to manage, tax and pass laws affecting interprovincial trade affecting non-renewable forestry and hydro resources within their boundaries.

If used wisely, Mr. Chairman, the provisions I present here will help guarantee that citizens in all provinces of Canada can build greater economic security for tomorrow and benefits that can accrue from resource extraction today.

Each province will benefit from this amendment because all provinces in our country have some resources, whether they be oil and gas in Alberta, potash in Saskatchewan and New Brunswick, electricity in Ontario, asbestos in Quebec, iron and coal in the Atlantic region, or forestry in Manitoba and British Columbia.

These new right are key blocks from which to create steady, diversified economic growth in the future, while at the same time produce revenue through which essential public services can be delivered to the people today in those provinces.

In some provinces, Mr. Chairman, particularly in the West and more recently in Atlantic Canada, the ability to direct the development and sale of the depleting resource is crucial. During the greater part of our history, central Canada has prospered extremely well, not only compared with the rest of the world, but also compared with the rest of Canada on the basis of its industrial development.

Now other regions of Canada see comparable economic advantage being obtained from their natural resources and for us all Canada should welcome this development.

In principle, Section 92 and Section 109 of the existing British North America Act give the provinces the right to own and control their resources. However, as provinces have attempted to assert this control, they have encountered judicial

[Page 76]

decisions which have allowed a variety of federal powers to have precedence over the provinces resource power. For example, when the province of Saskatchewan attempted to control the windfall profits of oil and gas companies in 1973, the action was disallowed by the Supreme Court of Canada. The Saskatchewan government had instituted what they thought was a direct tax. However, the Supreme Court ruled it to be an indirect tax which the provinces now have no power to levy.

When the same government tried to manage its potash resources through a prorationing program, this decision was struck down by the Supreme Court of Canada, once again on the grounds of the federal government’s trade and commerce powers.

If the amendment I am proposing today had been in place, both of these desirable provincial programs would have been upheld. Many other provincial governments have since been apprehensive about the effects of these judicial decisions on what they assume to be their traditional right to manage and control the resources within their boundaries.

A constitutionally entrenched affirmation confirming and clarifying provincial ownership and management of resources is therefore a key element of a fair confederation package at this historical moment of constitutional renewal in our country.

This amendment will help to case the apprehension many people in resource producing provinces feel about their ability to use their resources to help build their economic future and ease their uncertainty about the equity of the Confederation bargain.

I note, in passing, Mr. Chairman, that the cash value of this to the province of Alberta alone is worth somewhere in excess of $600 million.

Our amendment gives the provinces the right to control the level and nature of exploration of non-renewable resources. It offers them the right to regulate the way and the rate at which forestry, non-renewable and electrical resources are exploited.

The amendment would permit provinces to institute resource management and conservation schemes as deemed necessary and as should be established. It allows provinces to develop electrical generating sites in ways and at rates they see fit. Provinces would be able to regulate the movement of their resources so long as their regulations do not contravene federal legislation.

Provinces would have the right to set resource prices, levy indirect as well as direct taxes on the resources sold in Canada, as long as the provinces do not discriminate in the prices charged or on the availability of the resources to Canadians who happen to live in other provinces.

These rights, Mr. Chairman, would apply fully to non-renewable resources, resources generating electricity, and forest resources.

We in the New Democratic Party believe that this amendment would help to allay the fear, particularly of Western Canadians, that when they seek to regulate their resources

[Page 77]

their ability to do so will not be halted by the complexity of federal powers. It will help to renew their conviction in a just Canada by restructuring the constitutional powers in ways that allow all partners to develop fully in the best interests of their people.

On behalf of my party, Mr. Chairman, I would urge all members of this Committee to accept our amendment securing the right of provinces to own and control the development and sale of their natural resources.

Thank you.

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

Mr. Hawkes on a point of order.

Mr. Hawkes: The member from Oshawa asserted that the consequence of this amendment would be an amount in excess of $600 million to the province of Alberta. He asserted it as a fact. I assert as a fact as the member from Calgary, Alberta that it would not make a difference of one red dime.

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

Honourable Jake Epp.

Mr. Epp: Thank you Mr. Chairman, Mr. Chairman, just so that every Committee member knows what we are planning to do, we intend to ask a few questions of clarifications of Mr. Broadent. If there are other questions of clarification, of course that is totally within your jurisdiction, Mr. Chairman, and we will then be calling for an adjournment because the amendment is of some length and we did not have time to caucus during the dinner hour, and we will then be asking for an adjournment to caucus to study the amendment itself.

The Joint Chairman (Mr. Joyal): The honourable Minister of Justice.

Mr. Chrétien: I just want to say on behalf of the government that we will be accepting this amendment, but with some change of clarifications and perhaps at this time I will recommend Mr. Corbin to read our subamendment so that it will be very clear and it is just to make clarification to make sure that what we had offered in the summer and what had been passed by Mr. Broadbent in the fall, interprovincial trade, federal paramountcy, plus indirect taxation and reaffirmation and clarification of ownership of resources is acceptable to the government, It was offered, but we need that amendment that will be proposed by Mr. Eymard Corbin.

The Joint Chairman (Mr. Joyal): According to our Rules of Procedure, so far as the honourable members have now in their hands the main amendment, the Chair has been informed of two subamendments; one that should be moved by the government party and the second one that should be moved on behalf of honourable James McGrath. According to the procedure at this point, there is only a main amendment and it would be in order with our procedure to call the first subamendment. I understand that if honourable members want to ask for clarification of the main proposal, of course it is up to them to put forward their questions so that they have a real idea in which context the main debate takes place, and I would certainly receive the question as put forward by the honourable Jake Epp in that context.

[Page 78]

So if honourable members agree, we will continue to follow our usual procedure which is to call the amendment and then the subamendment and then open a debate that will allow all honourable members to ask for question of clarification; and if it is the wish of the honourable members to adjourn until tomorrow morning at 9.30, the honourable members will have a fair opportunity to put their views through on that very point.

But at this time, I would like to suggest to honourable members that all the amendments be on the table so that all honourable members know what they will have to decide upon, according to our procedure.

I would like to invite Mr. Corbin…

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

The Joint Chairman (Mr. Joyal): Mr. Nystrom on a point of order.

Mr. Nystrom: I think that because of the hour, 9.25 p.m., with respect, I think it would be wise if we continue until l0 o’clock. Mr. Corbin wants to present a subamendment and there can be questions of clarification and I think we should be commencing the debate tonight. A lot of people want to speak on this amendment and time is running out in the Committee, so I suggest we go on to our regular adjournment hour, which is 10.30 tonight.

[Translation]

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

Mr. Corbin: Mr. Chairman, I move

That the proposed amendment to the proposed Constitution Act, 1980, adding a new Section 52, be amended by

(a) striking out the portion of Subsection 92A(1) following paragraph (c) that reads as follows:

“whether or not such production is exported in whole or in part from the provinces”

(b) adding to Subsection 92A(2), immediately after the words “make laws in relation to the export from the province” the following words,

“to another part of Canada”.

[Text]

Mr. Chairman, I move that the proposed amendment to the proposed Constitution, Act, 1980, adding a new Section 52 be amended by (a) striking out the portion of subsection 92A(1) following paragraph (c) that reads as follows:

whether or not such production is exported in whole or in part from the provinces; and

(b) adding to subsection 92A(2) immediately after the words

“make laws in relation to the export from the province” the following words, “to another part of Canada.”

Thank you, Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): Senator Asselin.

[Page 79]

Senator Asselin: I heard the amendment proposed by Mr. Corbin. Could we have a brief explanation of what the purpose of this amendment is? It all seems rather complicated…

Mr. Corbin: You can ask the minister.

Senator Asselin: I would like to discuss it. Since you are the sponsor, I am asking you if the minister would like to answer for you, it is his privilege.

Mr. Corbin: It would be a pleasure.

Senator Asselin: Could you briefly explain to us what exactly this removes from the main amendment so that we can approach the question from the proper angle?

Mr. Corbin: May I, Mr. Chairman?

The Joint Chairman (Mr. Joyal): Of course.

Mr. Corbin: In reply to Senator Asselin’s question, I presented this amendment on behalf of the government and I will now ask the minister to answer Senator Asse1in’s question.

Mr. Chrétien: Yes, Mr. Corbin.

Why are we proposing this amendment? The text of Mr. Broadbent’s amendment could be interpreted as authorizing the provinces to engage in international trade, as granting them jurisdiction over such international trade and we have therefore made the necessary clarification. As we agreed with Mr. Broadbent, we are extending provincial jurisdiction through the indirect taxation of resources and interprovincial trade, with federal paramountcy, but it is by no means our intention to grant in the constitution the jurisdiction to the provincial governments over international trade.

[Text]

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

Mr. Broadbent: Mr. Chairman, what the Minister has said by way of clarification of the difference between the amendments that I proposed and the government’s subamendment is perfectly accurate. The agreement that was entered into sometime ago between my party and the government as one condition for accepting the overall package, the constitutional change was as the Minister described it.

What I have proposed, and it was done certainly with explanation in advance, is an amendment that has additional wording that was not agreed to, that I had hoped that at this point we might be able to persuade the government to agree to accept.

The wording that has been suggested be deleted, the first in subsection 92A(1)(c)

whether or not such production is exported in whole or in part from the provinces,

is from our point of view not a desirable course of action. I appeal to the Minister and to the government to reconsider their position. It is our view that the original amendment, that is even without this section that we agreed to, would indeed make it possible for example, for any province, like the Province of Saskatchewan, to regulate the development of the production of a non-renewable resource at a rate it thought

[Page 80]

desirable, even if that, resource was going to be exported. The key clause in that is Clause (b) where it makes specific reference to the right of the provinces to regulate the level and rates of production.

We think that the point that is covered in the wording that the Minister wants deleted is already covered in our wording so that the government of Saskatchewan would not have to worry about a suit by a private company for example; but to be super safe, to ensure that, and to still maintain the paramountcy of the federal government in this field when there is a conflict in international trade, our whole amendment as we proposed it, we think is desirable. The paramountcy of the federal government in the case of conflict is covered in our resolution and therefore to make it unequivocally clear that the provinces have the right to control development, particularly in this case, the rate of development of the resource according to their priorities, we think the phrase that the government is proposing to strike out should be left in.

I stress we think it should be left in to be super safe because we think that the cases, the CIGOL case and the Potash case are covered by the wording that the government has decided to accept but just to avoid any marginal error, if I can put it that way, by a judge in a court, we think that the kind of access to international trade that we are proposing is desirable for provinces at this point in our history.

Especially I want to stress when we have covered off the importance in the federal state of a national government to have paramountcy because when you are dealing with other states in the world it is of fundamental importance that in the last analysis there be one government that speaks for Canada, and that is the federal government.

I repeat, we are covered if we make sure in the case of conflict that the federal government has paramountcy. So, I appeal to the Government of Canada and to government members of this Committee to reconsider their position and permit the provinces this kind of participation in international trade by our provinces which we think is desirable.

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

At this time, before allowing the debate to continue, I would like to invite, with the consent of honourable members of course, the Honourable James McGrath to introduce the amendment and then l will invite honourable members to put all questions and any comments they would like to put forward.

In all fairness to all parties around the table—and that is a very important question—I would like to invite the consent, of course, of honourable members of this Committee, the honourable James McGrath to move the amendment on his behalf.

The Honourable James McGrath.

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

Mr. Chairman, first of all, to relieve any doubts as to the parentage of the amendment I am about to move, my leader

[Page 81]

on this Committee, my chairman, Mr. Epp, will be moving or speaking to the principle arguments in support of the amendment. I wanted to make that very clear. I was merely the instrument.

Mr. Chairman, I would move that the proposed amendment to Clause 5l of the proposed constitution act, 1980 adding Part VI be amended by adding immediately after the proposed new clause 92A of the constitution act, 1867, the following:

92B. All land, mines, minerals and royalties within and arising from the seabed and subsoil of the internal waters, the territorial sea and the continental shelf adjacent or appurtenant to any province, all economic or proprietary rights in the non-renewable natural resources thereof, and all rights to produce energy from the waters, currents and tides thereof shall belong to the adjacent province.

92C. (1) the area adjacent or appurtenant to a province shall, as between adjacent or opposite provinces, by that area within lines drawn by agreement in accordance with the principles of international law.

(2) where a dispute arises between provinces as to which province is the adjacent province for the purposes of this Part and no agreement can be reached between them within a reasonable period of time, the provinces concerned shall resort to arbitration, one member of the Arbitration Board being chosen by each province concerned and one other, or two others if there is an even number of provinces concerned, being chosen either by agreement of the members of the Board chosen by the provinces or, failing agreement, by the Chief Justice of Canada.

92D. For the purposes of this Part “non-renewable natural resources” includes the non-renewable natural resources of the seabed and subsoil of the internal waters, territorial sea and continental shelf of the adjacent province and all rights of energy production from the waters, currents and tides thereof.

Mr. Chairman, before I ask my colleague, Senator Tremblay, to read the amendment en français, I want to add this footnote, that the amendment, whilst it is moved in the spirit of the Committee, trying to correct some of the injustices contained in the Bill before us, l am not at all unmindful of the fact that our friends in the New Democratic Party have in fact in terms of the amendment that they are proposing have forgotten their friends east of Ontario.

[Translation]

The Joint Chairman (Mr. Joyal): Honourable Senator Tremblay.

Senator Tremblay: Mr. Chairman, I move:

That the proposed amendment to Clause 51 of the proposed constitution act, 1980 adding Part VI be amended by adding immediately after the proposed new Clause 92A of the constitution act, 1867, the following:

“92B. All lands, mines, minerals and royalties within and arising from the seabed and subsoil of the internal waters, the territorial sea and the continental shelf

[Page 82]

adjacent or appurtenant to any province, all economic or proprietary rights in the nonrenewable natural resources thereof, and all rights to produce energy from the waters, currents and tides thereof shall belong to the adjacent province.

92C. (1) The area adjacent or appurtenant to a province shall, as between adjacent or opposite provinces, be that area within lines drawn by agreement in accordance with the principles of international law.

(2) where a dispute arises between provinces as to which province is the adjacent province for the purposes of this Part and no agreement can be reached between them within a reasonable period of time, the provinces concerned shall resort to arbitration, one member of the Arbitration Board being chosen by each province concerned and one other, or two others if there is an even number of provinces concerned, being chosen either by agreement of the members of the Board chosen by the provinces or, failing agreement, by the Chief Justice of Canada.

92D. For the purposes of this Part, “non-renewable natural resources” includes the nonrenewable natural resources of the seabed and subsoil of the internal waters, territorial sea and continental shelf of the adjacent province and all rights of energy production from the waters, currents and tides thereof.

This is it, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you, Honourable Senator Tremblay.

[Text]

The honourable James McGrath.

Mr. McGrath: Mr. Chairman, I really should intervene and apologize to Mr. Broadbent, because he moved the amendment, and the fact that he is here and moved the amendment signifies the importance the New Democratic Party attaches to the amendment, and l was perhaps a little ingracious by my intervention.

I should have said that by indicating that they are supportive of our amendment that they recognize that they have friends east of Quebec.

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

The honourable Jake Epp.

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

I have a couple of questions I have to ask of Mr. Broadbent and of the Minister.

I would like to ask Mr. Broadbent whether he still agrees that he is getting everything Premier Blakeney wanted, even if the government’s subamendment to his amendment would carry?

Mr. Broadbent: My understanding from Mr. Blakeney, as the Premier of Saskatchewan, is that he would like more substantial participation in international trade than the amendment that is about to be voted on would permit.

[Page 83]

That is a quick answer to the question.

I could perhaps return if it is appropriate under the circumstances, since we now have another amendment before us.

Mr. Epp: I am not through with my questioning yet.

Mr. Broadbent: Well, I was through with my answer.

Mr. Epp: Well, I am not through with my questioning.

Mr. Broadbent: Well, pursue it, then.

Mr. Epp: Mr. Broadbent, could you indicate to us when you met with Mr. Romanov that he conveyed to you that Saskatchewan wanted international trade included?

Mr. Broadbent: Well, this is a very interesting exchange on a private conversation. My conversation with Mr. Romanov was of the kind that I am only too delighted to comment on, and I would like to hear Mr. Epp’s report on private conversations at some point between Mr. Davis and Mr. Clark!

But I would say, in passing, that Mr. Romanov says the same thing in private as he says in public. He wants more extensive participation of provincial governments in international trade.

I do not know why Mr. Epp would ever think that Mr. Romanov would ever say something in private which was different from what he would say in public.

Mr. Epp: Are you suggesting to us tonight, that, if the governments amendment should carry—an event which has not been too regularly in this Committee—are you saying to us it is the position of the Government of Saskatchewan not to accept that the amendment that you have moved with the Governments subamendment, that it would not be sufficient to guarantee Saskatchewan’s support for the constitutional package?

Mr. Broadbent: I am sorry, but I was consulted by my honourable and distinguished colleague from Saskatchewan on another matter.

Would you please repeat the question?

Mr. Epp: Of course. I will repeat the whole question for you.

I would like to ask you this. Should the government’s subamendment to your amendment carry, namely wiping out international trade, despite that government amendment, would you feel your amendment would be sufficient to guarantee the Government of Saskatchewan’s approval for the constitutional proposal?

Mr. Broadbent: Well, Mr. Epp, I do not know how things work in your party. But we certainly, in our party, recognize the real nature of federalism; that is, that federal leaders and federal parties speak from a federal perspective and have their responsibilities. We make our decisions.

I have no claim—and I have never seen myself as a spokesperson for a community of communities. I have assumed that, as a federal leader, I speak for the federal New Democratic Party; Premier Blakeney, as Premier of Saskatchewan, who has done, in my view, an admirable job as premier of that

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province, is speaking for his government. I do not intend to speak for him in this conference.

I would add, however, as part of my reply, that there were four central concerns, not only of Mr, Blakeney but of most of the premiers as expressed in recent first minister’s conferences as they pertain to resource control. One was to affirm ownership. The second was to guarantee participation in international trade. The third was interprovincial trade. The fourth was the right to indirect taxation.

Through our negotiations with the government we have obtained three of the four demands made by almost all the premiers. On almost any criteria of reasonableness, Mr. Epp, I think that is a pretty good score!

I would like also to say—and I have a copy of a letter by the Right Honourable Joe Clark when he was Prime Minister written to the Premier of Newfoundland, the principle point of which was to give agreement in principle to the idea of control of offshore resources which my party has supported as long or longer than your party has supported it.

Interestingly enough, Mr. Epp, when your party was in government, you did not even offer to the provinces the kind of power that we have now obtained in these amendments.

In the annex to the letter to Mr. Peckford it is made very clear that while offshore control was being contemplated in principle and was never even carried out, other powers, that we have now obtained in this amendment, such as interprovincial trade were going to be retained by the Conservative government.

So we have gone well beyond what the Conservative Party was prepared to implement when it was in power, and we have only obtained three quarters of what the provinces have wanted in terms of extending legitimate power in the resource sector.

I, for one, think that it is a pretty fair accomplishment.

Mr. Epp: Mr. Broadbent, I appreciate that you have mentioned the letter between the Right Honourable Joe Clark and the Premier, the honourable Mr. Peckford, because you will recall when that letter was exchanged between the premier and the then Prime Minister, that there was a course of action which had been put into place.

I believe there was a certain action by your Party—in fact thwarted that action, December 13!

I would like to ask you, Mr. Minister, this. In the discussions you had with Mr. Romanow and Mr. Broadbent last week, I understand that you offered Mr. Blakeney more than just inter-provincial trade. Is that correct?

Mr. Chrétien: When I talked to Mr. Romanow, as when I talked with Mr. Broadbent, we discussed all sorts of possibili-

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ties. We know the views of Saskatchewan. We know the views of the government.

We take our responsibility and our resolution and package will be proceeded with and finalized within, it looks like a few days or a few hours, and Saskatchewan will make up their mind.

I know what they were asking for, yes; and we cannot meet international trade for the reasons that Mr. Broadbent has given: Canada speaks with one voice abroad.

I would like to say that I think the amendment, as we will accept it, will meet most of the problems met by Saskatchewan in the past when they had to have the Cigol case and the Potash case. Most of the legal problems have been cured in the amendment accepted by the government.

Mr. Epp: Mr. Minister, I have a few other questions. But you have mentioned the Cigol Case. You are not solving the Gigol case at all. The Cigol case was international trade; 90 per cent of Saskatchewan’s Potash is international trade. You are denying them international trade. So let us not get this Cigol case involved in this one.

If you want to use some Alberta case, you would be on a better wicket than you are on the Saskatchewan wicket.

I would like to ask you whether you offered Mr. Blakeney as well a reduction in the referendum formula in your discussions last week?

Mr. Chrétien: Mr. Blakeney, when he came before this Committee, made a lot of suggestions about the referendum. Some have been met and some have not been met.

We have discussed clarification with Mr. Romanow when we met him this week. I reported my conversation to my colleagues, and we decided what course the government would take. It is here.

On the question of the Cigol Case and the Potash case, when Mr. Broadbent refers to the rate of production of potash—Cigol is not potash—we say with the amendment the rate of production will be under the jurisdiction of the provinces. There is no doubt about it. The Cigol Case is involved with indirect taxation.

Mr. Epp: Under Section 92 and Section l09 of the British North America Act, do you feel that other than the indirect taxation, that any further affirmation of provincial ownership of resources is needed?

Mr. Chrétien: Of course it was the big request in February 1979 by the Alberta government that reaffirmation of ownership of resources was needed.

Some argued it was not needed; but the provinces argued that it was needed. So we go along to reaffirm the ownership of the resources of the provinces, because some people have led some Canadians to believe that we want to take away ownership of resources from the provinces, and we are reaffirming

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here what existed in a different form in the constitution before, that the ownership of resources is provincial.

I do think that, I hope that this amendment that we are accepting will clarify that forever and that some of the great speeches that have been made on resources in the past will not be possible in the future, and I am quite satisfied with that because there was a lot of misunderstanding on the ownership of resources.

Mr. Epp: One last question. Mr. Chairman, if I might, to the Minister. The offshore question which Mr. Broadbent, I understand, if I hear him correctly, that he would support an amendment of offshore, I do not know if he has had an opportunity to look at this one, but at least the principle he would support.

Would you support it, Mr. Minister?

Mr. Chrétien: The policy of the government on that is well known. It was enunciated many times that we do think that the offshore resources belong to the federal government, Some provincial governments claim that they belong to the provincial governments. We have offered to give a reference to the court and accept the decision and the offer has not been taken.

We did propose some administrative arrangement to the provinces in the summer and that was to not settle the ownership, but offer 100 per cent of the revenues to the provinces, an administrative arrangement that will make sure that the profits and benefits of those resources will belong first to the residents of the neighbouring provinces, and we are still willing to discuss that but if they prefer to take it to the court—it will go to the court anyway because I know that some cases have been taken by private interests to get a clarification by the court. One is by some in the oil industry, one case that l know of in front of the Canadian Labour Relations Board for clarification of who has jurisdiction over the areas. So the court will eventually decide.

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

Mr. Broadbent: Mr. Chairman, Mr. Epp, it is very clear, has not done his homework at all when he talks about the Cigol case not being covered by the amendments that we are proposing and in fact the part that the government of Canada has accepted.

The Cigol case is in fact covered by the indirect taxation issue and I suspect that he does not want to recognize that reality for the same reason the Conservative Party of Canada does not want to recognize that the same provision, this amendment would bring a minimum of some S600 million which we will document later, to the province of Alberta, and will provide a lot of additional resource wealth to Western Canada, it would go a long way to dealing with what the Conservatives have attempted to promote as western alienation.

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They have attempted to take a totally negative attitude on this whole constitutional debate and wherever they are confronted with a positive, constructive suggestion for constitutional change that will bring benefits not only to Western Canada, but to elsewhere, they choose rather deliberately to ignore that reality.

Some hon. Members: Hear, hear.

Mr. Epp: Point of order, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Honourable Jake Epp on a point of order.

Mr. Epp: I just want to point out to Mr. Broadbent, and I realize that he and Mr. Knowles have not been here too much, I want to tell him that they moved 38 amendments, they have had three accepted, most of them were word changes; we have moved 12 in the Charter, we had five accepted.

Mr. Broadbent: Are you making a deal, Jake?

Mr. Beatty: Not with you, Ed.

Mr. Chrétien: There is still time to vote for the motion, for the resolution. It would be nice to have unanimity.

Mr. Broadbent: You may come to your senses finally.

The Joint Chairman (Mr. Joyal): I would like to invite the honourable Senator Austin.

Senator Austin: Thank you, Mr. Chairman.

I want to ask a question or two of Mr. Broadbent with respect to his resolution. I want to say at the outset that I am delighted with the confirmation of the right to the provinces, and particularly the western provinces, which area I come from, with respect to the ownership and management of resources, and I am delighted to see that the ability to manage through the right to deal with indirect taxes is being offered to the provinces because, under our constitution, as everyone here knows, under the British North America Act, the reason why resources were reserved to the provinces was in order to ensure them a revenue source so that they could develop their responsibilities and develop themselves as viable entities within the Canadian confederation.

Mr. Broadbent, I understand from your resolution that the Parliament of Canada retains its paramount jurisdiction, so that in the event of conflict between the laws of a province which may be enacted from this point on with Parliament, Parliament could enact a future law that set aside the provincial law; is that correct?

Mr. Broadbent: That is correct.

Senator Austin: With respect to subparagraph 4, I have one question where you say, right at the bottom of the page:

But such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

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I am wondering about policies which the provinces have followed from time to time of giving tax remissions to residents of the province or giving something that amounts to the same thing.

For example, in the province of British Columbia, the provincial government has allowed a subvention, a kind of a return on the price of natural gas in British Columbia. It is not exactly a direct tax, but it has the effect of a rebate on taxes and I wonder how that problem would be handled in your resolution?

Mr. Broadbent: This clause, Senator, does not deal with that. What it does is stop discrimination amongst other provinces but would permit special consideration for a province to act for its own citizens within its own borders.

Senator Austin: So it does not bar a province from continuing to favour its own citizens with respect to the rewards of its resource production?

Mr. Broadbent: That is correct.

Senator Austin: I would like, Mr. Chairman, to ask Mr. McGrath a question with respect to his amendment, would that be in order at this time? Would you agree?

I appreciate the intent of the amendment, Mr. McGrath, but the minister referred to an offshore resources reference and the position of the government of Canada that it would be prepared to agree to an offshore resources reference to settle the constitutional issues that have been aggravating Newfoundland-federal relations for so long and I wonder whether you would comment on why the province of Newfoundland has delayed so long in settling its claims in the Supreme Court of Canada?

The Joint Chairman (Mr. Joyal): Honourable James McGrath.

Mr. McGrath: Mr. Chairman, I could ask the same question of Senator Austin as to why this package has not been referred to the Supreme Court of Canada, because there is considerable doubt about it.

Senator Austin: Mr. McGrath, the package has been before a court and the court has found…

Mr. McGrath: There is sufficient doubt to prompt six provinces to refer the matter to the court. One case has been heard and two are still outstanding.

However, to answer Senator Austin’s question, Mr. Chairman, I find it very strange that the federal government would maintain a position of saying that because we lay claim or because we stake out a claim, if I can put it that way, to the offshore, then they suggest we should refer it to the court, I see no movement on the part of the federal government to refer it to the court.

Senator Austin: I am sorry, Mr. McGrath, but the federal government has offered time and time again to state a question.

Mr. McGrath: Well, I just want to make this very clear, Mr. Chairman, to Senator Austin, that what he proposes on behalf of the government, or what the government proposes would put the four Atlantic provinces in an economic straitjacket for all

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time, because Senator Austin forgets in 1912, for example, substantial federal lands, hundreds of thousands of square miles, were awarded to Ontario, to Manitoba, to Saskatchewan and Alberta. These are lands in which the resources that are now being transferred or enshrined in the constitution, the rights to these resources, many of them are on federal lands that were transferred in 1912.

Senator Austin: Mr. McGrath, you are not arguing to my— Mr. Epp often says that this Committee, you know. The question is why docs not Newfoundland offer the settlement of the issue to the court? Not in its interest?

Mr. McGrath: The concept of the offshore, it has been settled by international law that a coastal state has; the natural extension of a coastal state is the continental shelf. What we are saying is the Newfoundland claim, of course, is based on our rights prior to Confederation in 1949, the fact we brought with us our sovereignty.

Nova Scotia to the same extent, with a little different historical background, is making the same claim; but the principle claim we make is that natural justice would demand if you are going to extend these rights to natural resources in the constitution to the inland provinces, then that natural justice would dictate that you apply the same rights to the coastal provinces, in this case the Atlantic provinces.

We believe that this matter should be settled politically; that is not to suggest in any way there is a weakness in our case, because we believe we have a strong case, but when our leader was prime minister we moved in that direction, to transfer these resources to the coastal provinces.

Indeed, that has been the position of our party since 1968. We have not moved from that in any way, shape or form, but I notice that while the federal government is talking about having this matter settled by the courts, they move with Bill C-48 which has within it the Canada lands provision which stakes out the federal claim in a legislative way, notwithstanding the undertaking that the federal government made last September to the provinces that this matter would come in the second phase of federal-provincial negotiations on the constitution, and thereby they have pre-empted in fact any subsequent negotiations on this matter.

I think that is regrettable, but we believe very strongly that this matter should be settled by negotiation, that is the position we take, that is the position that is embodied in the amendment that I am proposing tonight, which, I am pleased to say, has the support of the New Democratic Party.

Senator Austin: When you offer this amendment, this is not a settlement by negotiation with the federal government; this is the dictation of the solution.

What I would like to add to that comment is that there is nothing in here that provides for the recognition of the rights which federal permit holders have and I presume the effect of your resolution would be to completely invalidate those rights.

The third point I would like to make is that I would like to have your assurance that nothing that has been done by the Government of Newfoundland, if you are able to speak in any way on their behalf, has discouraged citizens, including corpo-

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rate citizens, holding rights from the federal government or from the Province of Newfoundland, from establishing those rights in court because there is an ugly rumour around that, Premier Peckford has been very vigorous in trying to prevent individuals from seeking to establish rights in court, rights which they need to settle because they have established very, very large expenditures in Hibernia.

Now, if you can give us the assurance that any individual is free to exercise his civil rights as a Canadian and has not been interfered with by Premier Peckford, I would be delighted.

Mr. McGrath: Well, first of all, Mr. Chairman, I want to make the point in replying to Senator Austin that my province disagrees with the process we are involved in. I have to be very careful to preface my answers to him with that statement.

The Province of Newfoundland does not accept this process that we are involved in here tonight. It is unilateral, it does not include the provinces.

Now, having said that, Mr. Chairman, I want to say that the amendment that I have put forward represents the best efforts draft of the federal-provincial negotiations of last summer and, indeed, when Premier MacLean appeared before us he indicated that a substantial agreement had been reached on the question of the off—shore where nine of the ten provinces had agreed on the question of off-share resources.

I want to make this very clear to Senator Austin, I think this is very important. What the Province of Newfoundland and the Province of Nova Scotia are setting out to do is not to lay claim to something so that we can have it all for ourselves; that is not the spirit in which we are proceeding. What we feel as provinces is that it is very, very important to us in staking out our claim from an historical prospective to make the case that it is important to us that we exercise our right, our proprietary rights to ownership in order to control the rate of development. That is very, very important, the rate of development, to these coastal provinces.

In my own province we have a very old culture based on the fishery; we are not unmindful of the importance of the fishery to the economy of the Province of Newfoundland as well as to the culture of Newfoundland, the way of life of Newfoundland, and for that reason we feel it is very, very important to us that we control the rate of development.

However, we believe, Mr. Chairman, that these questions can and should be, in the context of our federation, be settled within the political context, just as the New Democratic Party were able to arrive at an accord with the government with regards to their concerns about the western provinces or, more particularly, the Province of Saskatchewan, and I do not make any comment on that. I say that is the way we should operate within our federation. However, when you have the federal government saying: take us to court; then that is not the way, in my view that the federal of Canada should function.

Mr. Chrétien: I would like to make a remark here because it creates a very bad impression.

We have worked all summer to have an administrative arrangement, an agreement that would have clarified the

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situation. We came very close at one time with one of the province. Nova Scotia, we came very close to an agreement. We were very little apart. And we were more or less setting aside the legality of who owns it in making sure that the revenue was to be up to, it is difficult to be better than a hundred per cent, to the province with an administrative arrangement that would have maximized the benefit to the local citizens and not having the decisions all being made in Ottawa, and on top of that with an agreement that when a province has reached a certain level of income above the national average, that there will be no problem in sharing with the rest of Canada. This concept had been proposed.

So it was not for us to give or to take the revenue for us, and some studies of some provincial governments along the line of the proposition I made to them, at least in Nova Scotia, some of their studies tell them that they will have a hundred per cent of the revenue until 2030, something like that.

So that is quite a long ways down the line; and they recognize that having benefited from Canada, that the proposition was saying that when you are above the national average you do not hesitate to share with the rest of Canada because Canada has a great history of sharing among the poor and rich parts of this nation.

The Joint Chairman (Mr. Joyal): Honourable James McGrath.

Mr. McGrath: Mr. Chairman, I cannot let that statement go unchallenged because it implies that somehow the Atlantic provinces are second class, first of all, and more importantly, that they want to grab it all for themselves having been the recipient of the benefits of Confederation, now we have an opportunity to seize on the potential of off-share resources and we want it all for ourselves. That of course is not the case and the minister knows that.

What the minister does not seem to realize, because the position that he puts forward on behalf of the federal government is a position that is totally unacceptable to the Atlantic Provinces, the Province of Newfoundland, the Province of Nova Scotia, because we feel that that attitude is a colonial attitude.

Mr. Chrétien: Mr. McGrath, you can make a speech if you want.

Mr. McGrath: Well, you make speeches.

Mr. Chrétien: You speak on behalf of Nova Scotia. Ten days ago, I discussed another time the possibility of an administrative arrangement with the Government of Nova Scotia, and they came to see me, so to say that is an approach of colonialism, they were not obliged to fly, Premier Buchanan and Mr. Howe, to come all the way from Nova Scotia to come to see me.

Mr. McGrath: I think that is great. I think that is the way it should be.

Mr. Chrétien: And if it had been totally unacceptable, why waste their time?

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Mr. McGrath: That is the way it should be, Mr. Chairman. These matters should be discussed within the context of our Confederation, by negotiation not by confrontation.

Mr. Chrétien: I would like to make something clear. This summer when we had the discussion with the provinces Newfoundland wanted completely to avoid a discussion of administrative arrangement of any kind. While I was trying to find a compromise they said it is ownership or nothing and it was after a long debate, the conference almost broke down in Toronto on that, because they did not want to talk about it, they wanted to have it completely off the table, and it was quite a difficult evening and eventually they accepted to discuss the possibility of a compromise if we could not find a constitutional solution.

So I think that the position of Nova Scotia in that matter has been much more positive and they are still willing to look into administrative arrangements.

The Joint Chairman (Mr. Joyal): Thank you, honourable Perrin Beatty.

Senator Austin: Mr. Chairman, I just want to say that Mr. McGrath did not address himself to my comments with respect to Premier Peckford. I wonder if you would like to do that in as much as the story is that Mr. Peckford is trying to prevent private subjects who have a lot of money at stake from exercising their rights to commence action.

Mr. McGrath: Mr. Chairman, I do not have to speak and indeed I should not be obliged to speak for the Premier of Newfoundland. Part of the process that we disagree with is that these discussions should be taken back to the first minister’s conference. That is where it belongs, not here. I put a position forward, without prejudice to Newfoundland’s position on the best efforts draft.

Mr. Broadbent: Point of order.

The Joint Chairman (Mr. Joyal): Pont of order by Mr. Broadbent.

Mr. Broadbent: I know that I should not expect consistency from certain political parties but would Mr. McGrath please square what he has just said with what Mr. Epp has just said to me about Mr. Blakeney’s position.

The Joint Chairman (Mr. Joyal): The honourable Jake Epp.

Mr. Epp: I would be glad to square that. I asked the question. Mr. Broadbent decided to fall into the trap.

Mr. Nystrom: I wonder, Mr. Chairman, if Senator Austin could tell us what Claude Ryan says about…

The Joint Chairman (Mr. Joyal): Thank you very much. I would like to invite the honourable Perrin Beatty at this point.

Honourable Perrin Beatty.

Mr. Beatty: Thank you, Mr. Chairman.

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Mr. Chairman, I would like to get some further clarification front Mr. Broadbent if I could with regard to the amendment which he has proposed. Mr. Broadbent, you indicated when you were moving the amendment, discussing it, that this was the result of the deal which you struck with the Prime Minister which culminated in the exchange of letters between the two of you and the agreement on your part that the NDP would support the governments resolution at second reading stage.

Could I ask you whether the announcement by the Minister of Justice that he has accepted your amendment means that the government has the support of the NDP from this point forth on the resolution?

Mr. Broadbent: Mr. Chairman, I was waiting for one of the members of the Conservative party to pose that very interesting question. As I indicated earlier this evening I was delighted that the government has accepted three major changes on resource control that were not offered by the Conservative party when they were in power, and that is substantial progress towards giving the provinces legitimate control over their resources, and the government has indeed honoured its commitment to that.

Another part of the understanding was that they would show reasonableness in terms of the amendment process on the Charter of Rights as well as other aspects of the resolution during the course of this Committee’s deliberations and I do not want to in any way indicate tonight what I will be saying at greater length on that subject tomorrow.

So you will just have to wait, Mr. Beatty, and lose some sleep overnight, and you will hear a definitive response later on.

Mr. Beatty: I doubt any of us will be losing too much sleep, including the government.

Mr. Broadbent: Mr. Beatty, would you indicate if your party is going to support our amendment?

Mr. Beatty: Mr. Broadbent, let me follow up on that, because I think it is worthwhile while we are discussing your amendment and indeed Mr. McGrath‘s amendment.

You indicated that the NDP had taken the position in favour of off-shore resources coming under the control of the provinces. You indicated that even prior to the time at which the Progressive Conservative Party took that position, and I ask you if Mr. McGrath’s amendment is acceptable to you, why did you not include the concept of off-shore resources in your amendment?

Mr. Broadbent: The answer was explained in my statement but the outset, our position was well known. As you indicate, we took that position as far as I know in advance of the Conservative Party, but I do not want to quibble over that at all. It was certainly around the same time and I was well aware that the Conservative Party was going to be moving an amendment on that subject and, as Mr. Beatty knows, the drafting is quite technical. We did our work on certain aspects of resource control, being a strong believer in the division of labour I knew you were doing your work on your aspect of

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resource control and we indicated right at the outset that we supported that principle.

As we have said all along we wished all three parties at the federal level would co-operate in a very sensible way in developing a constitution for Canada that all the parties could come together on. I made my comments in the spirit of genuine openness towards your proposal and I just hope that you will reciprocate when you come to consider ours.

Mr. Beatty: Mr. Chairman, I might indicate on behalf of the members on our side that we are delighted to have the support of the NDP on the proposal made by Mr. McGrath.

May I ask Mr. Broadbent, in view of the fact that obviously the two issues, the issue of offshore resources and the issue of resources in inland landlocked areas are viewed very differently, it is very much a regionalized concern, does Mr. Broadbent and does his party accord the same importance to the ownership of offshore resources that you accord to the ownership of resources within provinces which are landlocked.

Mr. Broadbent: Absolutely. The point we have made is that resources, non-renewable resources in Canada should be treated in precisely the same way, whether they belong to a landlocked province or one that has shores; and the problems that accrue to a federal state from disparity in the distribution of those resources, whether they occur for a province that is inland, or provinces, in this particular case, like Alberta and Saskatchewan with oil and gas, and to a lesser extent British Columbia or, hopefully, offshore provinces like Nova Scotia and Newfoundland, that once the decision is made to allocate to all of these provinces on the same basis the control of their resources, then we have to at some early point in our history develop a much more equitable equalization formula so that we can achieve a greater sense of equality amongst all Canadians.

Mr. Beatty: So you accord absolutely equal importance to the two types of control over resources.

Mr. Broadbent: Yes, in principle.

Mr. Beatty: Could I then ask you, in view of the fact that the government’s agreement to your amendment came as the result of the deal which was struck between Mr. Trudeau and yourself where you indicated that as a precondition of your support for the governments resolution, that the government would have to agree with the proposals that you are making today.

Will you give the same support on behalf of the NDP to the Atlantic Provinces in terms of protection of their offshore resources as you gave to the landlocked provinces? In other words, will you set as a condition of your continued support for the governments proposals their agreement to accept provincial control of offshore resources?

Mr. Broadbent: Mr. Chairman, I would like to make two points in reply to that. First of all, the provinces east of the one we are now speaking in who are affected by our resource amendments include of course Quebec, Nova Scotia, New Brunswick and Newfoundland. In Quebec such resources as asbestos, minerals and electricity are covered by our amend-

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ments; in Nova Scotia, forestry and minerals; in New Brunswick, forestry, minerals and potash specifically; in Newfoundland, forestry, minerals and electricity; so all of those provinces in Atlantic Canada are well covered by the amendments that we are moving and that we hope the Conservative Party will cover. That is the first point.

The second point I would make, and I say this with all respect, when one is negotiating one begins with an assumption about what is achievable and one is prepared to use a little muscle when you have it. When you have 32 members, I have no hesitation in saying that is only 32 members. The Conservative Party has more and I wish they would produce more substantial results in terms of some of these matters by a more cooperative attitude; but when we bargain, one has to recognize in this particular case we are dealing with the governing party and they were fundamentally opposed to offshore control of resources going to the provinces.

I do not agree with that attitude but they are entitled, I suppose, not I suppose, I know, to have that belief with every bit of legitimacy, as you and I have a contrary belief.

Now, there was some hope of moving the Liberal party of Canada on these other matters. They were open to moving and I know something about the history of the trade union negotiating process, so you do not reach for the moon. The real objective was to get what was getable and what we have achieved in my judgment is good for all the Atlantic provinces that have just indicated in a whole range of resource matters us well as the other provinces of Canada; and I do not apologize that we did not get the whole shebang, but we did pretty well.

Mr. Beatty: Let me ask you this very simple question. Will you set, as a condition for your continued support of the government’s package that they accept Mr. McGrath’s amendment on offshore resources, yes or no?

Mr. Broadbent: Yes or no—you will have to sleep on that, Mr. Beatty.

Mr. Beatty: Let us have a straight answer. Surely the people of the Atlantic Provinces are entitled to a straight answer.

Mr. Broadbent: I think the answer for everyone, Mr. Beatty, is probably pretty clear.

Mr. Beatty: What is it, then?

Mr. Broadbent: I will draw you a diagram, Mr. Beatty, and send it up to you.

Mr. Beatty: Perhaps you could clarify it for me. Is your answer yes or no? Are you refusing to answer?

Mr. Broadbent: I am refusing; I am really holding out; I am covering up and I am deceiving and I am trying to mislead you.

An hon. Member: It was part of the deal.

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Mr. Beatty: Maybe it was part of the deal.

Mr. Broadbent, I think the people of the Atlantic provinces are entitled to a straight answer from you, and you were the one, Mr. Broadbent, who this evening said that you accorded absolutely equal importance to the issue of offshore resources to what you accord to the position of the inshore provinces. We are going to have two classes of provinces on resources as a result of the position which you are taking. You have managed to secure, you say, significant concessions from the government for those land-locked provinces in Western Canada and yet you are saying you are not prepared to go to the wall for the provinces in the Atlantic area of Canada whose offshore resources are affected.

How can you justify that? How do you square that with your assertion that you accord absolutely equal importance to the two sets of resources?

Mr. Broadbent: Mr. Beatty, you have heightened the rhetoric and I am going to reply in kind.

You are back to your high school level of debating and I have listened to you and now I am going to reply.

Mr. Beatty: Please do. I hope you will answer the question.

Mr. Broadbent: Yes, I certainly will answer it. Your party, in my view, in recent months has donc a great disservice to this country in stirring up discontent in Western Canada and, not happy with that effort, you are now trying to do the same thing with Eastern Canada.

Mr. Epp: A point of order.

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

Mr. Broadbent: Mr. Chairman, I will come to reply to the question now.

The Joint Chairman (Mr. Joyal): I have first a point of order to deal with before I invite you to go on, Honourable Jake Epp.

Mr. Epp:Mr. Chairman, around this committee for a number of months, we have all had good partisan arguments, but one thing we have not done and that is to charge parties or individuals with trying to break up the federation, or creating discontent. We are obviously opposed very strenuously to the government action, but you are saying, Mr. Broadbent that we are creating discontent relative to the country and I think those are two different points and you should stay with the one that is factual.

Miss Campbell: Mr. Chairman, on that point of order, I heard the last question and the implication was that this was a divisive amendment proposed by the NDP in the east.

Now surely, we have listened to questions that were not on the amendment for the last 10 or 15 minutes, not particularly, on the amendment, just sheer questioning of the witness, of one of our own members.

[Page 97]

Now, I do not think it divides the east and if you want to debate on whether or not it divides the east, I will give you a debate. It hits on very important areas in my own constituency, of pulp and wood.

Now, I do not think because he makes one statement about the east that he is alienating the east on this amendment. I personally feel that Mr. Broadbent is answering it, and he should answer it.

The Joint Chairman (Mr. Joyal): I think that all honourable members should remember that when we have to discuss amendments and subamendments the Chair has always invited honourable members to remain as much as possible on the content of the proposed amendment, and that applies to everyone around the table. That is the way that we have been proceeding at this point and as I have said on many occasions, that procedure has served us well in the past and we have been able, with the cooperation of everyone around the table, to move ahead. That is why tonight we are on Clause 51. At this point I would like to invite honourable members to go on, with that thinking in mind.

Mr. Broadbent.

Mr. Broadbent: Mr. Chairman, I want to conclude by emphasizing that the question that was put to me was precisely in the form, are you not ignoring one part of Canada and showing favouritism to another? That is the way the question was put, and if the question is put to me, Mr. Chairman, in that way, surely I am entitled to reply to that accusation.

My reply is that the amendments that we have put forward and I can detail at great length, as we will in the forthcoming debate in the House, how they beneficially affect every province in Canada from British Columbia in the west to Newfoundland in the east, we would like to have included offshore resources but because the governing party in its judgment that I happen to disagree with, but in its judgment was unprepared to move in offshore resources.

With all respect to Mr. Beatty, I would say that is not my fault, we did what we could to get benefits for all provinces within a limited range, three-quarters of the areas of resource concern. The fact that we missed one is not our fault.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Broadbent. I see at this point—I have of course, a long list of speakers. I will keep their names down. I would like to mention Mr. Hawkes, Senator Steuart, Mr. McRae and many others around the table. At this point, I would like to invite honourable members to sleep on everything that has been said tonight and is on the table, and we will resume consideration of the proposed motion tomorrow morning at 9.30.

This meeting is adjourned.


WITNESSES

From the Department of Justice:

Mr. Roger Tassé, Deputy Minister;
Dr. B. L. Strayer, Assistant Deputy Minister, Public Law.


Other Issues:

Index 1 2 3 4 5 6 7 8 9
10 11 12 13 14* 15 16 17 18 19
20 21 22 23 24 25 26* 27 28 29
30 31 32 33 34 35 36 37 38 39
40 41 42 43 44 45 46 47 48 49
50 51 52 53 54 55 56 57

*On Order — Available Soon


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