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 54 (5 February 1981)


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Date: 1981-02-05
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 54 (5 February 1981).
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SENATE
HOUSE OF COMMONS

Issue No. 54

Thursday, February 5, 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


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
Cottreau
Hays
Lapointe
Petten
Rousseau
Steuart
Tremblay
Yuzyk—10

Representing the House of Commons:

Messrs.

Beatty
Bockstael
Corbin
Epp
Fraser
Henderson
Irwin
Joyal
King
Mackasey
McRae
Munro (Esquimalt-Saanich)
Nystrom
Robinson (Burnaby)
Tobin—15

(Quorum 12)

Richard Prégent
Paul Bélisle

Joint Clerks of the Committee

Pursuant to S.0. 65(4)(b) of the House of Commons:

On Thursday, February 5, 1981:

Mr. Hawkes replaced Mr. McDermid;
Mr. Waddell replaced Mr. Broadbent;
Mr. Irwin replaced Mrs. Côté;
Mr. Robinson (Burnaby) replaced Mr. Nystrom;
Mr. Nystrom replaced Mr. Robinson (Burnaby);
Mrs. Coté replaced Miss Campbell (South West Nova);
Mr. Hnatyshyn replaced Mr. Hawkes;
Mr. Mackasey replaced Mr. McRae;
Miss Campbell (South West Nova) replaced Mrs. Côté;
Mr. Munro (Esquimalt-Saanich) replaced Mr. Beatty;

[Page 3]

Mr. McCain replaced Mr. McGrath;
Mr. King replaced Mr. McCain;
Mr. Dionne (Northumberland-Miramichi) replaced Mr. Henderson;
Mr. Robinson (Burnaby) replaced Mr. Waddell;
Mr. Tobin replaced Miss Campbell (South West Nova);
Mr. Henderson replaced Mr. Dionne (Northumberland-Miramichi);
Mr. Beatty replaced Mr. Hnatyshyn;
Mr. McRae replaced Mr. Lapierre.

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

On Thursday, February 5, 1981:

Senator Connolly replaced Senator Frith;
Senator Yuzyk replaced Senator Roblin;
Senator Cottreau replaced Senator Connolly.


[Page 4]

MINUTES OF PROCEEDINGS

THURSDAY, FEBRUARY 5, 1981
(101)

[Text]

The Special Joint Committee on the Constitution of Canada met this day at 9:48 o’clock a.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

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

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

Other Members present: Messrs. Dionne (Northumberland-Miramichi) and Munro (Esquimalt-Saanich).

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 Chairman presented the Tenth Report of the Subcommittee on Agenda and Procedure which reads as follows:

(A)—That the Joint Committee meet on:

Thursday, February 5, 1981 9:30 am. to 12:30 pm.
3:30 pm. to 6:00 p.m.
8:00 pm. to 10:30 p.m.

Friday, February 6, 1981 9:30 am. to 11:00 a.m.

Monday, February 9, 1981 3:30 pm, to 5:45 p.m.
8:00 p.m. to 10:30 pm.

(B)—That the Subcommittee on Agenda and Procedure meet at 5:45 o’clock p.m. on Monday, February 9, 1981.

By unanimous consent, the Tenth Report of the Subcommittee on Agenda and Procedure was concurred in.

The Committee resumed consideration of the motion of Mr. Broadbent,—That the proposed Constitution Act, 1980 be amended by

(a) adding immediately after line 17 on page 15 the following headings and sections:

[Page 5]

“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 nonrenewable 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.

(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

[Page 6]

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.

and the motion of Mr. Corbin,—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”

and the motion of Mr. McGrath,—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 all rights to produce energy from the waters, currents and tides thereof, shall belong to the adjacent province.

[Page 7]

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 resonable 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 12:27 o’clock p.m., the Committee adjourned to the call of the Chair.

AFTERNOON SITTING
(102)

The Special Joint Committee on the Constitution of Canada met this day at 3:54 o’clock pm., 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, Steuart and Tremblay.

Representing the House of Commons: Mr. Bockstael, Miss Campbell (South West Nova), Messrs. Corbin, Dionne, (Northumberland-Miramichi), Epp, Fraser, Hnatyshyn, Irwin, Joyal, King, Lapierre, Mackasey, Munro (Esquimalt-Saanich), Nystrom, Robinson (Burnaby) and Waddell.

In attendance: From the Research Branch of the Library of Parliament: Mr. Paul Martin, 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. Broadbent,—That the proposed Constitution Act, 1980 be amended by

(a) adding immediately after line 17 on page 15 the following headings and sections:

[Page 8]

“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.

(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

[Page 9]

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.

and the motion of Mr. Corbin,—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”

and the motion of Mr. McGrath,—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 all rights to produce energy from the waters, currents and tides thereof, shall belong to the adjacent province.

[Page 10]

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, the question being put on the subamendment of Mr. Corbin, it was agreed to on the following division:

YEAS:

The Honourable Senators

Asselin
Austin
Connolly
Hays
Lapointe
Petten
Roblin
Rousseau
Steuart

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Dionne (Northumberland-Miramichi)
Epp
Fraser
Hnatyshyn
Irwin
King
Lapierre
Mackasey
Munro (Esquimalt-Saanich)—21

NAYS:

Messrs.

Nystrom
Waddell—2

By unanimous consent. Mr. Fraser moved,—That the amendment be amended by adding to sub-clause 92A(1) the following new paragraph:

“(d) Nothing in Section 92A derogates from the powers of the Parliament of Canada relating to fisheries, navigation and shipping”

After debate, the question being put on the subamendment of Mr. Fraser, it was negatived on the following division:

[Page 11]

YEAS:

The Honourable Senators

Asselin
Roblin

Messrs.

Epp
Fraser
Hnatyshyn
King
Munro (Esquimalt-Saanich)
Nystrom
Waddell—9

NAYS:

The Honourable Senators

Austin
Connolly
Hays
Lapointe
Petten
Rousseau
Steuart

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Dionne (Northumberland-Miramichi) Irwin
Lapierre
Mackasey—14

After debate, the question being put on the subamendment of Mr. McGrath, it was negatived on the following division:

YEAS:

The Honourable Senators

Asselin
Roblin

Messrs.

Epp
Fraser
Hnatyshyn
King
Munro (Esquimalt-Saanich)
Nystrom
Waddell—9

NAYS:

The Honourable Senators

Austin
Connolly
Lapointe
Petten
Rousseau
Steuart

Messrs.

Bockstael
Campbell (Miss) (South West Nova)
Corbin
Dionne (Northumberland-Miramichi)
Irwin
Lapierre
Mackasey—13

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

On Clause 52 of the proposed Constitution Act, 1980

[Page 12]

Mr. Irwin moved,—That Clause 52 of the proposed Constitution Act, 1980 be amended by

(a) adding immediately before line 18 on page 15 the following subclause:

“52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”; and

(b) renumbering subclauses 52(1) and (2) as 52(2) and (3) respectively.

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

Clause 52, as amended, carried.

Clauses 53 to 58 carried.

On Clause 59 of the proposed Constitution Act, 1980

Mr. Irwin moved,—That Clause 59 of the proposed Constitution Act, 1980 be amended by striking out lines 30 to 34 on page 16 and substituting the following:

“59. This Schedule may be cited as the Constitution Act, 1981 and the Constitution Acts 1867 to 1975 (No. 2) and this Act may be cited together as the Constitution Acts, 1867 to 1981.

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

Clause 59, as amended, carried.

At 6:01 o’clock pm., the Committee adjourned to the call of the Chair.

EVENING SITTING
(103)

The Special Joint Committee on the Constitution of Canada met this day at 8:22 o’clock p.m., the Joint Chairman, Mr. Joyal, presiding.

Members of the Committee present:

Representing the Senate: The Honourable Senators Austin, Cottreau, Hays, Lapointe, Petten, Roblin, Rousseau, Steuart, Tremblay and Yuzyk.

Representing the House of Commons: Messrs. Beatty, Bockstael, Corbin, Epp, Fraser, Henderson, Irwin, Joyal, King, Mackasey, McRae, Munro (Esquimalt-Saanich), 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.)

[Page 13]

By unanimous consent, on motion of Mr. Corbin, it was agreed,—That the French version of Clause 17, as amended, of the proposed Constitution Act, 1980 be amended by striking out lines 20 and 21 on page 6 and substituting the following:

“17. Chacun a le droit d’employer le francais ou l’anglais dans les débats”

By unanimous consent, on motion of Mr. Corbin, it was agreed,—That the French version of Clause 19, as amended, of the proposed Constitution Act, 1980 be amended by striking out lines 29 and 30 on page 6 and substituting the following:

“19. Chacun a le droit d’employer le francais ou l’anglais dans toutes les”

By unanimous consent, on motion of Mr. Irwin, it was agreed,—That Clause 20, as amended, oi the English version of the proposed Constitution Act, 1980 be amended by striking out line 35 on page 6 and substituting the following:

“French, and has the”

By unanimous consent, on motion of Mr. Corbin, it was agreed,—That Clause 47 of the proposed Constitution Act, 1980 as amended, be amended by striking out lines 20 to 22 on page 14 and substituting the following:

“section.”

By unanimous consent, on motion of Mr. Irwin, the following technical amendments to the English version of the proposed Constitution Act, 1980, were agreed to:

1. In the new clause after Clause 26, change “No provision of” to “Nothing in”.

2. In Subclause 29(2) of the original Resolution on page 8, change “application” to “effect”.

3. In the new clause after Clause 34,

(a) change “described in” to “prescribed by”; and

(b) change “relates” to “applies”.

4. In the Clause 35(1) of the original Resolution on page 10, Change “described in” to “prescribed by”.

5. In the new subclause 40(5), move the words “under subsection (4)” so that they appear after the words “If Parliament does not enact laws”.

6. In the new clause after Clause 43,

(a) change “described in” to “prescribed by”; and

(b) change “relates” to “applies?

7. In subclause 45(1) of the original Resolution on page 13 change “described in” to “prescribed by”.

8. In the new subclause 46(5), move the words “under subsection (4)” so that they appear after the words “If Parliament does not enact laws”.

On Schedule I to the proposed Constitution Act, 1980

Mr. Irwin moved,—That Schedule I to the proposed Constitution Act, 1980 be amended

(a) by adding thereto, immediately after item 2 thereof on page 17, the following item:

[Page 14]

Column I
Column II
Column III
Item
Act
Amendment
New Name

“3. Order of Her
Majesty in Council
Admitting Rupert’s
Land and the
North-Western
Territory into the
Union, dated the
23rd day of June,
1870
Rupert’s Land and
North-Western
Territory Order”

(b) by renumbering items 3 to 29 as items 4 to 30 respectively; and

(c) by striking out the renumbered item 22 on page 19 and substituting the following item:

Column I
Column II
Column III
Item
Act
Amendment
New Name

“22. British North
America (No. 2)
Act, 1949,
13 Geo. VI.
c. 81 (U.K.)
The Act is repealed.
(effective when
section 51 of the
Constitution Act,
1981 comes into
force)”

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

Mr. Epp moved,—That Schedule I, as amended, to the proposed Constitution Act, 1980 be amended by

(a) striking out paragraph (a) of Column II of item 16; and

(b) relettering paragraphs (b) and (c) of Column II of item 16 as paragraphs (a) and (b) respectively.

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

Schedule I, as amended, carried.

On motion of Mr. Irwin, it was agreed,—That the proposed Constitution Act, 1980 be amended by striking out the heading “CONSTITUTION ACT, 1980” on page 3 and substituting the following:

“CONSTITUTION ACT, 1981”

On Clause 1 of the proposed Canada Act and of Schedule A thereto

On motion of Mr. Corbin, it was agreed,—That Clause 1 of the proposed Canada Act be amended by

(a) striking out line 20 on page 2 and substituting the following:

[Page 15]

“1. The Constitution Act, 1981 set out in”; and

(b) striking out line 18 of Schedule A thereto on page 2 and substituting the following:

“1. La Loi constitutionnelle de 1981, énon-”

Senator Tremblay moved,-That Clause 1, as amended, of the proposed Canada Act, be amended by

(a) striking out lines 23 and 24 on page 2 and substituting the following:

“and, subject to sections 2 to 4 of this Act, shall come into force as provided in that Act.

2. A proclamation under section 57 of the Constitution Act, 1981 bringing Parts V and VI of that Act into force in Canada, with or without amendments, may be issued

(a) at any time after this Act comes into force, if so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province;

(b) at any time after the expiration of one hundred and twenty days after this Act comes into force, if so authorized at any time after this Act comes into force by

(i) resolutions of the Senate and House of Commons, and

(ii) resolutions of the legislative assemblies of eight or more provinces that have in the aggregate, according to the then latest general census, combined populations of at least eighty per cent of the population of all of the provinces;

(c) at any time after the expiration of two hundred and forty days after this Act comes into force, if so authorized at any time after this Act comes into force by

(i) resolutions of the Senate and House of Commons, and

(ii) resolutions of the legislative assemblies of at least two thirds of the provinces that have in the aggregate, according to the then latest general census, a population of at least fifty per cent of the population of all of the provinces; and

(d) subject to section 3, at any time after the expiration of one year after this Act comes into force.

3. A proclamation under section 57 of the Constitution Act, 1981 and paragraph 2(d) of this Act bringing Parts V and VI of that Act into force in Canada shall

(a) amend section 4l of that Act to read as follows:

“41. An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and on the legislative assembly of each province.”; and

(b) contain no other amendments to the Constitution of Canada.

[Page 16]

4. A proclamation under section 57 of the Constitution Act, 1981 bringing any provisions of that Act other than Parts V and VI into force in Canada, with or without amendments, may be issued at any time

(a) after Parts V and VI of that Act have come into force in Canada; and (b) after the provisions to be brought into force in accordance with this section have been authorized pursuant to the appropriate procedure prescribed in Part V of that Act for amending those provisions”; and

(b) renumbering clauses 2 to 4 as clauses 5 to 7 respectively.

After debate, at 10:30 o’clock pm., 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)
Thursday, February 5, 1981

[Text]

The Joint Chairman (Mr. Joyal): Order, please. May I invite honourable members to take their seats so that we could resume consideration of the proposed amendment and subamendments to Clause 51 of the proposed resolution.

Before I do that, I would like to draw the attention of honourable members and inform the honourable members that your Subcommittee on the Agenda and Procedure met on Wednesday, February 4, 1981, and agreed to make the following recommendations to the honourable members of this Committee

(See Minutes of proceedings.)

The Joint Chairman (Mr. Joyal): If there is no further question or intervention, the report will be carried.

Motion agreed to.

The Joint Chairman (Mr. Joyal): Last night when we adjourned I had a certain number of speakers on the proposed amendment and subamendments in relation with natural resources and I have on my list to be called to make an intervention at this point. Mr. Hawkes.

Mr. Beatty: Mr. Chairman, could I just ask, and I apologize for interrupting, Mr. Hawkes, but when we concluded last night I believe I was questioning Mr. Broadbent. If it is your intention to pass on to that question, it is fine, but could I ask whether Mr. Broadbent will be back before the Committee to give further testimony with regard to his amendment?

The Joint Chairman (Mr. Joyal): I will invite Mr. Waddell or Mr. Robinson to answer that very specific question. Mr. Waddell.

Mr. Waddell: No, he cannot be back this morning.

Mr. Beatty: Will he be back this afternoon?

Mr. Waddell: I will check, but I do not think so.

Mr. Beatty: It is very helpful to have him here. Thank you, Mr. Chairman.

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

Mr. Hawkes: Thank you, Mr. Chairman. It is a useful interjection and a very disappointing answer because it has been a practice in this Committee for movers of motions to be available for questioning. That has been the way we have conducted it and I would have hoped that for a motion of this consequences for Canada, the mover might have stuck around to give us the benefit of his wisdom on it.

Mr. Waddell: Point of order, Mr. Chairman. It should be pointed out that Mr. Broadbent was here at 9.30 last night ready to do his motion and my friends to the right spent most of the night on other matters.

The Joint Chairman (Mr. Joyal): That is not a point of order, as a matter of fact as such, but at this point I think that Mr. Hawkes was invited to make his intervention and I would like to invite him to go on.

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Mr. Hawkes: Thank you, Mr. Chairman. I hope I can have the attention of the Minister as well as members of the New Democratic Party.

What has been introduced here is a very long amendment with some severe, if you like, consequences for Canada and we have been struggling with it, I personally have been struggling with it, for several weeks to try to anticipate the form of the amendment. I would like to use my time in interaction with the NDP Party and with the Minister and his officials to attempt to clarify for myself and, hopefully, for other members of the Committee, what would be the exact consequence of this rather extensive and complicated amendment.

The first thing I think that should be noted, Mr. Chairman, is that the NDP amendment as submitted to us is exactly the suggested amendment that Premier Blakeney made before this Committee. It is word for word and comma for comma. In fact, what the NDP have moved is an amendment proposed by one province in this country.

The government has, through its subamandment, signalled that they will modify it and to some extent, on behalf of the Canadian people, I would congratulate the government because they are sticking to the terms of the agreement reached between the Leader of the NDP and the Prime Minister of Canada.

The Leader of the NDP tried to raise the ante after the goods were sold and the government has resisted that increase in price. To that extent the government should be complimented on keeping its half of the bargain.

It does disturb me. Historically, those of us who live I think in particular in the prairie provinces, but certainly in Western Canada, can trace very easily the beginning of economic wellbeing, to the decision in 1930 to grant Saskatchewan and Alberta in particular, and Manitoba, the same rights that other provinces had in relationship to resources, and it is a very important symbolic right and a very important economic right to those of us who live in that region. Whether it is real or not, it is perceived to be of fundamental importance to the people who live in that region and it is in that context that I am very, very nervous that this Committee of the federal Parliament is dealing in fact with an amendment that is so clearly specified in the constitution of Canada as a right belonging to the provinces, and the absence of provincial representation in this discussion makes me very, very uneasy.

Be that as it may, my first question, and I will read just a brief summary of the BNA Act, 1867, Section 109, which says:

All lands, mines, minerals and royalties belonging to the several provinces of Canada, Nova Scotia and New Brunswick at the union shall belong to the several provinces of Ontario, Quebec, Nova Scotia and New Brunswick.

That is the historical derivation of the rights to ownership enjoyed by provinces.

Now we have an amendment before us and the title deals with nonrenewable natural resources, forestry resources and electrical energy and I would like to ask the law officers of the Crown if the terms “lands, mines, minerals and royalties” are

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synonymous with the title nonrenewable natural resources, forestry resources and electrical energy.

Mr. B. L. Strayer (Q. C., Assistant Deputy Minister, Public Law, Department of Justice): Mr. Chairman, I think one could say in a general way that those are synonymous because the resources that you would find based on lands, mines, minerals would be nonrenewable resources; but the two terms are not necessarily synonymous, nor is there any particular reason why they should be.

The language which is used in this amendment, which was developed over quite a long time in discussions with the provinces, is designed to confirm additional authority for the provinces with respect to certain important areas of management of resources so that the draft that you see here and the language which is employed is not really addressed to the ownership question. The ownership situation remains as it was. Section 109 remains, in the BNA Act, the provisions on the natural resources agreements, for example, remain where they are. The various ownership sections in the various Terms of Union with provinces that came in separately such as Newfoundland and P.E.I. and BC. all those remain in place. The ownership rights are defined there.

What this draft does, I believe, is to add and strengthen the management powers of provinces and confirms additional rights with respect to management of trade in resource products after they had been extracted from the Crown land or from any land in the province.

So this really goes beyond the question of ownership and it gives new powers to provinces in a rather specific but large area, that is, the regulation of commerce and the taxation of products of nonrenewable resources.

Mr. Hawkes: When you say that it strengthens the rights of the provinces to manage then it must strengthen them at the expense of someone else.

Who are we taking away from?

Mr. Strayer: It gives the provinces a clear constitutional role in regulating interprovincial trade. That is a concurrent authority. It will be made a concurrent authority. It does not take away Parliaments ultimate paramount authority, but it gives the provinces now a clear authority to act in the area of interprovincial trade, and that necessarily attenuates if you will, what is now an explicit federal authority, by giving the provinces an entré into that area.

Mr. Hawkes: In other words the provinces can move into an area that the federal government has not dealt with.

Mr. Strayer: That is right.

Mr. Hawkes: if the federal government has dealt with it, the province has no room to move.

Mr. Strayer: That is the essential difference that under the present Constitution, even if Parliament does not see fit to

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regulate the matter of interprovincial trade the province cannot do so.

Under this proposal, the provinces could move into the area even if Parliament has not acted. It leaves open the possibility that Parliament may want to, for national reasons, also regulate the area in a way that may over-ride what the province does, but in the absence of some action by Parliament of the federal government, the province will be able to regulate the area.

Hon. Jean Chrétien (Minister of Justice): With your permission, Mr. Chairman, to add to this comment, one of the cases that involved the Saskatchewan government as producers was an area where the federal government had no objection, and they had consulted with the federal government before moving. We said that we had no objection and they moved ahead with their plans, and the legislation, and the court ruled against them because they have no jurisdiction, even if they had our approval. So now, if this had prevailed at that time, the courts would not have been able to intervene at all.

Mr. Hawkes: Lands, mines and minerals, right back to the BNA Act, 1867, has taken us to a system in this country where the ownership of surface land in some cases, belongs to one party and the mines and the minerals under that land belong to a different party. Okay.

We are talking about ownership, the ownership of surface lands, the ownership of mines and minerals which lie under that land. We have then, in Canada, the following ownership position as related to mines and minerals.

We have provincial Crown ownership; we have federal Crown ownership; we have freehold ownership; we have Indian reserve land ownership and a brand new concept which this Committee has approved, which remains to be discovered, and that is called aboriginal ownership, for lack of a better term.

Now, can you tell me, in relationship to the proposed Section 92A(1)(a) which reads:

exploration for nonrenewable, natural resources in the province

Can you tell me, first of all, whether the words “in the province” include all those kinds of ownership and does it place the authority of the provincial legislature, put in place the authority of the provincial legislature over all those five kinds of ownerships.

Mr. Strayer: The clause certainly confirms the power of the province which it probably already has now anyway, with respect to regulating exploration for nonrenewable natural resources. As a general proposition, the province can regulate that with respect to any lands in the province, but one has to recognize certain qualifications to that.

The province cannot regulate the use of federally owned lands, for example, in the province. The province cannot make laws with respect to Indian lands in the province, say reserve lands, that is a power they do not have under the existing

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constitution and this I think would not give them that power either because this power has to be read subject to other provisions of the BNA Act.

With respect to aboriginal rights, which Mr. Hawkes mentioned, I guess we cannot be entirely sure how this is going to relate to that because obviously the aboriginal rights will be given a constitutional recognition by Clause 31 which may well qualify the way in which the provinces can regulate exploration if there are aboriginal rights involved. There will be problems of definition and interpretation that will have to be worked out there over time.

M. Hawkes: By the courts?

Mr. Strayer: I assume so, if we do not all come to some common understanding as to what the inter-relationship is. I suppose that the courts may have to address that question sooner or later as the provision in Clause 31 of the affirmation of aboriginal rights will certainly have a bearing now on how the regulation of exploration will be carried out by the provinces.

Mr. Hawkes: The one part of my question which you did not address was freehold land.

Mr. Strayer: Oh, I am sorry. As a general proposition this clearly confirms the right of the province to regulate exploration on freehold lands.

Mr. Hawkes: Can I just put that in practical terms. I am a farmer in Saskatchewan and I have a section of land which my family has farmed for three generations, and what you are confirming in the constitution of Canada is the power of the government to determine to say that my land shall be explored.

The government can say, regardless of the fact that I own it, the government can say: you must allow a drilling rig on there to drill and see if there is any oil underneath?

Mr. Strayer: Yes. That power now exists because of the provincial jurisdiction under Section 92(13) of the BNA Act, the power of the province with respect to property and civil rights, and of course provinces do have such provisions in their existing laws where there is a right under certain conditions for the petroleum exploration operation to come in, subject to Compensation being paid and other conditions being met, and that power of the provinces to provide for that would continue under this.

Mr. Hawkes: Well, you said they now have the power under certain conditions.

Mr. Strayer: That is my understanding. I know in the laws of many of the provinces that the—I am sorry, are you talking about the situation where there is a private freehold owner of the surface and somebody else owns the mineral rights?

Mr. Hawkes: I am talking about the one owner has surface rights and mineral rights.

Mr. Strayer: I am sorry, I was thinking of the other situation where somebody else owns the subsurface. In that case he is allolwed to lease his mineral rights or sell them to

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somebody else and the exploration operation can come in and get to those rights and the surface owner cannot stop it.

In the other case, I think the answer is, sir, that theoretically it is possible now for provinces to require the exploitation of resources on your property but I do not think any of them do; but in theory, because of the rather absolute jurisdiction which provinces now have under the property and civil rights heading they could do that just as they can expropriate property for construction of a highway, but I do not believe any province does at the moment have legislation quite that draconian as far as requiring you to develop your mineral rights is concerned.

This, in short, would not change that situation. It remains, I think, a matter of policy that provincial governments do not do that sort of thigh where the owner does not wish to have his minerals exploited. They do not do that by law now and presumably they will not do it in the future, but this does not really change the constitutional situation with respect to the possibility of them doing that.

Mr. Hawkes: It does not change the legal basis for argument? It would not be used in court, it would be irrelevant—if a private landholder who owned the mineral rights and the surface rights chose to fight the decision of a province to move in on their land, this clause would not be used?

Mr. Strayer: If he chose to fight and if the province was trying to authorize that sort of thing. All I am saying is the province could now rely on its jurisdiction over property and civil rights to authorize the exploitation of the resources of the freehold owner.

In the future the province could rely both on property and civil rights and on this clause, but I do not think it would change the situation essentially. The province, in other words, would have the constitutional power to do that, just as the province has the constitutional power to expropriate property now even without compensation if it chose to do so, but the provinces do not do that.

Its constitutional power is there now, it would remain. The fact that that sort of thing is not done is a matter of policy judgment rather than a constitutional matter being involved.

Mr. Hawkes: Let me track this just a little bit further, maybe the Minister would care to respond, but the mover of this motion, the Leader of the New Democratic Party in his speech in the House of Commons to this clause, and in his speech last evening, assured members of this Committee and members of the House of Commons that this amendment would have the effect of stopping private owners from challenging the government in court.

Now, what you are telling me is that that is not correct?

Mr. Chrétien: I think Mr. Strayer replied to that question but the way I see it is he must have been referring to the cases in Saskatchewan where the government there passed some

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legislation in interprovincial trade or indirect taxation that was challenged in court.

So in relation to the two matters, these two cases now could not be taken into the courts because of the new power that we are giving to the provinces through that amendment.

Mr. Hawkes: In particular, Mr. Minister, the Leader of the New Democratic Party in his speech in the House of Commons made mention of the asbestos situation in the Province of Quebec and in the context of control, that was the thrust of the paragraph, and I think the clause in this amendment, proposed Section 92A(1) deals with the issue of control. We have been discussing control for about 15 minutes and your officials have told me that the impact of proposed Section 92A(1) on the issue of control related to private ownership is nonexistent, that it changes the situation in no way.

And the leader of the New Democratic Party told us last evening that in fact this situation was going to be dramatically different. He told us in the House of Commons that the control of the provinces was going to be asserted by this paragraph, we are going to have something new for the provinces and now you are telling me we have nothing new.

Mr. Chrétien: Mr. Strayer would like to give a clarification to the previous answer, but I said there was a lot new when I spoke about the possibility that existed before in the private sector to take governments to court on indirect taxation and on interprovincial trade. And this power then given through this amendment to the provinces, there is a change there but it is not absolute as you would like us to say.

Anyway, Mr. Strayer will give a clarification to a previous answer.

Mr. Strayer: Mr. Chairman, I just wanted to make sure that I had not mislead the Committee in any way.

I was addressing what I understood to be the question that Mr. Hawkes had raised as to the particular situation, the application of proposed Section 92A(1)(a) to a situation where you have a free hold owner who owns both the surface and the subsurface, the question being whether this chanfes in anyway the right of the provinces to control exploration on that property.

I said that I do not think this changed probably the provinces existing power but I was not attempting in any way to deal with all the other situations covered by the clause and I was not addressing what I think was the issue that Mr. Broadvent was addressing last night.

If I left the impression that I was, I apologize.

The Joint Chairman (Mr. Joyal): Before I call on Mr. Waddell I have the honourable Perrin Beatty on a pont of order.

Mr. Beatty: Mr. Chairman, I notice that Mr. Waddell is seeking the floor and I apologize for the delay on a point of order, but members of the Committee will remember a ruling made by you and supported by all members on all sides of the

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Committee with regard to the question of substitution of Committee members during a particular amendment.

The rulling which you made, which is on the record and which was made as a response to concerns expressed by members on this side that members of the New Democratic Party were substituting their membership on and off the Committee during consideration of a particular amendment, was that for the duration of an amendment, once moved, the Committee membership could not be changed.

You will remember, Mr. Chairman, that last night this amendment was moved by Mr. Broadbent who was substituted on to the Committee, became a full Committee member, otherwise he could not have moved the amendment. He participated fully in the discussions last night. We are told today that he does not intend to be back today.

The other New Democratic Party member on this Committee last night was Mr. Nystrom. He participated, for example, in the vote which took place on the question of the monarchy and, Mr. Chairman, I understand that the New Democratic Party has attempted to make a substitution, that they would pull Mr. Broadbent, who is the mover of this amendment, off the Committee, they would remove Mr. Nystrom from the Committee and they would substitute Mr. Robinson and Mr. Waddell.

Mr. Robinson was here last night. Had it been the New Democratic Party’s intention to have him on for the duration of the discussion they could have had him on last night; instead, they put Mr. Nystrom and Mr. Broadbent on.

Mr. Chairman, your ruling was very clear and that was that no substitutions could take place over the course of debate on a particular amendment, and Mr. Broadbent, as mover of this amendment, was clearly on the Committee; I think the rules and your ruling clearly require that no substitution be made and that those members put on behalf of the New Democratic Party last night are required to be here for the duration of the consideration of this particular amendment.

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

In relation to your point of order I have to remind you, first, that Mr. Nystrom is a member this morning, I checked with the clerk, and it is Mr. Waddell who has been substituted for Mr. Broadbent.

Mr. Beatty: Which is where the substitutions can be made

The Joint Chairman (Mr. Joyal): Yes, that is the very core of your intervention.

I remind the honourable members that the Chair as such has made a specific ruling, the Chair has made a suggestion with the proviso that of course if some of the honourable members who have participated in the debate or in a process of moving a motion and has to be absent for one reason or another, each party will try its best to make sure that the same membership remains during all the process of the debate and the vote on one specific amendment or subamendment.

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It is in that context that the Chair has made the suggestion to invite each party to do so and I think that the minutes of our procedure would be very clear on that, that the Chair made a suggestion at that time and had no authority to make a specific ruling on that because, according to the standing orders. there is no such provision. And the steering committee, or the subcommittee on agenda and procedure never required the consent of all honourable members around the table in that way, but it was felt as a matter of cohesion during a debate to keep as far as possible the same membership on each amendment or subamendment in order to make sure that all information that should be needed or should be put forward in the discussion and the decision to be taken on each amendment be put in a way that each member has an opportunity to have a fair discussion with the same members, and that is essentially the context in which the Chair has made that suggestion.

That suggestion generally has been well accepted because we have ssen up until now it has been fairly the practice that has been followed around the table.

Mr. Beatty: I believe, Mr. Chairman, that the other reason why you made that suggestion was that there was a concern that by doing substitutions on the part of the New Democratic Party, that they could increase their membership from two on the Committee to virtually any number by continuing to substitute members on and off.

At least one of the New Democratic Party members has already participated extensively on this amendment, Mr. Broadbent, the mover.

Now, if indeed both of the two members who were on the Committee last night are substituted off and two more members are substituted on, that would give at a minimum the participation of three New Democratic Party members on this one amendment as opposed to their numerical strength of two members on the Committee.

Mr. Robinson was here last night for the duration of Mr. Broadbent’s presentation. Had it been the New Democratic Party’s intention to have Mr. Robinson participate in the discussions, they could of course have had him on the Committee last night but the problem this poses for the Committee is that through this regular substitution of members on and off the Committee, one party, particularly the New Democratic Party, is able then to increase their participation for beyond their numerical representation on the Committee and this was, I think, the reason why the concern was first expressed by the members of the Committee.

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

I see that Mr. Nystrom would like to comment on that very point and I would like to invite him to participate in that discussion.

Mr. Nystrom: On the same point of order, Mr. Chairman, I want to concur with you that my recollection is that was not a ruling, just a very strong suggestion which the Committee has been very obedient to over the last few weeks.

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I think there are three things here that are different: first of all, it is a different session. We are not dealing with the same session today as we were yesterday, it is a different day and people have different obligations so it is not switching someone on to the Committee one minute and someone else five minutes later, and that was the concern that the Chairman raised when you raised this question, Mr. Chairman, a few weeks ago.

The other thing that is different is that we are dealing now with three amendments, not one amendment. We have our amendment moved by Mr. Broadbent last night, the government amendment and we have Mr. McGrath’s amendment, and last night we had a rather unique procedure where we discussed all three amendments. So we are not dealing with one amendment as Mr. Beatty suggested, we are dealing with three.

The other thing I wanted to suggest is that it is a rather unique situation in that Mr. Broadbent is the leader of a party, and I think because of that fact I do not think that Mr. Beatty should be quite as ungenerous and quite as insensitive as he is.

So I suggest because of those three things, a different session, a party leader and we are dealing with three amendments, that we should now proceed with the debate.

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

I have Mr. Waddell and then I would like to invite honourable Senator Steuart.

Mr. Waddell.

Mr. Hawkes: Point of order, Mr. Chairman.

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

Mr. Hawkes: Are you concluding that I was finished?

The Joint Chairman (Senator Hays): Yes.

The Joint Chairman (Mr. Joyal): Well, I have not concluded that you had finished as such but I noticed that you had more than 20 minutes, so what I have done, I have kept you name on my list and you are the first one to come back after Senator Steuart and Mr. Waddell, but at this point the Chair in all fairness has to given an opportunity at this point to come into the debate, but I have kept your name down on my list.

Mr. Hawkes: Mr. Chairman, could I make some appeal? I have another engagement relative to this Committee and the work of this Committee that requires me to leave the Committee at 11 o’clock and not come back until this evening.

The Joint Chairman (Senator Hays): If we could be sure of that.

Mr. Epp: Senator Hays is in a mean mood this morning.

The Joint Chairman (Mr. Joyal): What I would suggest to the honourable member would be to, I think that Mr. Waddell has a compliment to the answer that was put forward by Mr. Strayer, but if at this point a member is agreeable to have the opportunity for Senator Steuart to come into the debate, I will recognize you with the consent of the other honourable members after Senator Steuart. I think that is a fair chance that during our debate we have at least a change on at least two sides of the table.

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So I will call you, Mr. Hawkes, after Senator Steuart with the consent of the Committee and then I will go to Mr. McRae.

Honourable Senator Steuart.

Senator Steuart: Thank you very much, Mr. Chairman.

My questions will not be very long. I want to direct two questions to the Minister. But I would like to point out that my understanding of the NDP amendment is that it will in fact solve some of the complaints of some of the provinces in regard to the control of natural resources such as the Province of Saskatchewan.

While to me and to most objective-minded people it is clear that the provinces have now and will continue to have the clear ownership of resources, the amendment introduced by the NDP will give them greater control.

My first question to the Minister is: will the government’s subamendment allow the provinces to control and set the rules with regard to the production of nonrenewable resources?

Specifically, I would like to refer to the pro-rationing of pot ash that our government, when I was in the Government of Saskatchewan, put into effect in the late 1960s.

If my memory serves me right, it was upset by the courts, not because of the limited production, but because we in fact spread the production with the sales among the various mines.

My first question is: is it clear that the subamendment will not limit the right of the provinces to protect their resources in this manner?

Mr. Chrétien: The answer to your question is that this amendment will permit what you have described; the provincial government will be able to establish prorationing of the production within the province.

In my answers I have already said that the cases which were taken to court following the pro-rationing which was introduced in Saskatchewan, today the same challenge could not arise, would not be taken because the provinces will have power to do such regulating.

Senator Steuart: Well, I am pleased with the answer and will certainly support both the subamendment and amendment if in fact it is amended by the subamendment.

But I would just like to remind the Minister, if I remember rightly, that the Government of Canada did not in fact object to the prorationing. My memory is a little bit different. As a matter of fact they did object very strongly to the whole process that we engaged in at the time. But they did not institute the court case. I notice the NDP smiling.

I would also point out that Mr. Blakeney and the NDP in opposition opposed the prorationing very strongly, calling it an international cartel and promised to end it, but immediately upon becoming the government they strengthened it and car-

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ried it on for the next several years and were then taken to court.

However, I was pleased to see them do that because it was protecting our natural resources. I would hope that the subamendment by the national NDP and the subamendment of the Government of Canada receives support, and I would be amazed if it did not receive the support of Mr. Blakeney, because it is clearly something they want.

The second question deals in the same regard with the right of the provinces under both the amendment and subamendment to allow the provinces to engage in indirect taxation. Again, I refer to the Cigol casein Saskatchewan.

Is it very clear that with your subamendment the provinces will be able to do what Saskatchewan did in the Cigol case and other cases, and which was subsequently disallowed by the courts and threatened some 500 million dollars of revenue that the Province of Saskatchewan had already collected?

Is it clear they will be allowed to do this if this subamendment and amendment pass?

Mr. Chrétien: The answer is yes.

Senator Steuart: That is fine. Again that pleases me and is one more reason why I would urge members to support both the amendment and subamendment.

I would also urge the Government of Saskatchewan to take another look at their position. I would be amazed if they did not support this, because if this becomes part of the new constitution of Canada, it is clearly some protection that we, in Saskatchewan, have fought for for years, the protection of the control and taxation of our natural resources. Although it does not go, obviously, as far as Mr. Blakeney wanted it to go, I would think it goes 90 per cent of the way, and again, I would hope they would in fact join their national NDP brothers and support both the amendment and subamendment.

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

Mr. Waddell.

Mr. Waddell: I note with interest, Mr. Chairman, the approval remarks of Senator Steuart, who I understand was Deputy Premier of Saskatchewan at the time of the pot ash regulation.

I wanted to make some remarks in relation to Mr. Hawkes’ comments. I think, however, I will forego them, except to point out that in case Committee members think that these amendments simply deal with the Province of Saskatchewan, I would like to say that my own province, British Columbia, will be affected by the amendments, in the sense that the amendments firm up the control of provincial resources. Ownership has always been there. It has not been taken away. As some opposition members said when they spoke on the coast some months ago, the ownership is still there, but there is increased control.

It could have many effects in my province if there was ever a challenge to the control of natural gas, of forestry and of electricity and so on.

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It has important consequences in terms of provincial control of resources in other provinces other than Saskatchewan and in particular in the Province of British Columbia.

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

Mr. Hawkes.

Mr. Hawkes: Thank you, Mr. Chairman.

If I can go back to proposed Section 92A(1) in trying to move more quickly, in proposed paragraph (c) of that clause, development conservation, it gives exclusive jurisdiction to the provinces over development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

There are two kinds of electrical energy this brings to mind for me; one is hydro electric which involves frequently bodies of water that cross provincial boundaries.

I am interested in the legal interpretation as to whether or not this is an attempt to confer on the provinces the right to do what they like, in terms of electrical generation, with bodies of water even though those cross provincial boundaries?

Mr. Strayer: The text really relates to the generation site of the facility itself and not to the body of water which is used to generate the electricy.

Mr. Hawkes: A hydro electric dam is a site and it is on a body of water and it affects the flow.

Mr. Strayer: To that extent the text obviously confirms and enlarges provincial jurisdiction over that.

Of course, like any other power in the constitution it would have to be interpreted in the light of other provisions of the constitutions. This is an exclusive provincial power. There are other exclusive federal powers, such as the federal jurisdiction over navigation.

This will have to be interpreted side by side with the federal power of navigation and neither one could be applied to the complete abolition of the other.

It is a problem familiar to constitutional lawyers trying to interpret one section like this in the light of another one.

Mr. Hawkes: Let us move to another form of electrical generation called nuclear.

There is concern on the part of the public about nuclear safety.

It is conceivable that the Parliament of Canada at some point in the future might decide that in Canada they did not want any more nuclear power stations built.

If that decision were taken by the Parliament of Canada, could it be overturned by a particular province which wanted, because of this clause, to proceed with the building of nuclear power stations?

Because, you see, it seems ot me to give exclusive jurisdiction to the provinces in such a case.

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Mr. Strayer: At the moment nuclear power stations are declared to be for the general advantage of Canada under the Atomic Energy Control Act. That situation would still continue until Parliament otherwise provides.

Mr. Hawkes: In the constitution, you are saying that there is no legal basis for argument under this provision, to have that act overturned by a province?

Mr. Chrétien: No, it cannot; because this was introduced under another section of the constitution which remained there, that gave that power to declare the atomic energy— working for the general advantage of Canada.

Mr. Hawkes: So, in other words, it is a bit of flim flam to have wording like this, because the province really does not have control over the development, conservation and management of sites and facilities used for the generation of electrical power?

Mr. Chrétien: No; I have just said that we have legislation based on other sections of the British North America Act which permits us to declare the works of electrical development for the national benefit.

But, if ever we were to withdraw that legislation it will become completely under the authority of the province and they would have the constitutional authority, if ever we were to drop our own legislation on the matter based upon other sections of the constitution.

Mr. Hawkes: In that answer, Mr. Minister, you have opened the door to the principle which relates to the indirect taxation clause.

Senator Steuart was expressing the feeling that most of the provinces would like to have somewhere in the constitution the power to levy indirect taxes.

If I may refresh everybody’s memory, in the Cigol case private owners argued in the Supreme Court in Canada successfully that the Province of Saskatchewan had no power to levy a particular kind of tax, and the court rules in favour of those private owners and against the government.

What has not been said in this forum, is that the government then passed subsequent legislation, collects the same tax anyhow in other ways; and that in terms of free hold land in the Province of Alberta that there are ways of collecting taxes or revenues which the provinces already enjoy.

But the crux of the issue of ownership from a provincial perspective is that the powers which the federal government enjoys are such that the principle of ownership can rapidly be made irrelevant.

We can have it as a symbol; but it has no practical value. I suggest that indirect taxation law has symbolic value but not real value and if I could just ask you the following questions, today we have a very public dispute between the federal government and the provincial government around one resource called oil.

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Under the present constitution of Canada it seems legal, at least no one has challenged it, that provinces can control the rate of exploration and development, when we talk about not starting it tarsands plant, that is going on because provincial governments have the power under the present Canadian constitution to refuse approval of that development.

If you listen to a provincial argument they are doing it because the federal government has the power to set price, that is one power the federal government has. In terms of the federal government’s taxing powers it has the power to ignore monies paid by producers to provincial governments and to say that those are not a business expense; so that by using the powers which the federal government has it can in fact make production uneconomical and therefore control it, cut it down, make sure it does not happend. Right in there is the nub of the concern of ownership, and I am wondering if this clause does anything about it.

The Joint Chairman (Mr. Joyal): Mr. Bockstael, on a point of order.

Mr. Bockstael: Point of order, Mr. Chairman. We had an intervention by Mr. Hawkes as you mentioned of 20 minutes. We have gone on for another few minutes and we have allowed him to have a second go but the point is that the question before us is do we want the provinces to have the power that is in the clause or do we not, and he is asking for a course, an instruction in law on what goes on. It has almost been a monologue, expressing opinions and asking questions that do not seem to pertain. I find it very difficult to see that they relate directly to the clauses. It seems that he would like to be given a short course in provincial law and what it does between the province and the owner; and we are here to say yes we approve an amendment that will transfer the powers over natural resources to the provinces, yes or no. I think that he is belabouring something that is not taking us any place.

The Joint Chairman (Mr. Joyal): At this point I think that I would like to invite Mr. Hawkes if possible to conclude in the next minutes. I think it is now more than half an hour that this Committee has given the opportunity to the honourable members to put their questions. In no way do I want to prevent him from asking questions on that very subject because it is an important subject. As a matter of fact, it will have a new part, Part VI to the proposed resolution and on those grounds the Choir was ready to give him all the opportunity to put forward his views and ask questions, but at this point I will have to draw the attention of the honourable member that after half an hour I will have to really invite other honourable members to participate in the debate.

So if you would be in a position to conclude at this point your line of questioning, the Chair will be grateful to you, Mr. Hawkes.

Mr. Hawkes: Thank you for your grace, Mr. Chairman.

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I have so many more questions that I find it difficult to conclude but maybe I will try and summarize the dilemmas.

If we take two neighbouring provinces, the provinces of Saskatchewan and Alberta and their concern about natural resources, different concerns come about because there are different ownership conditions that presently prevail. The resources that are important to citizens of Alberta are primarily available from provincial Crown land; the ownership is primarily in the hands of the provinces.

In the Province of Saskatchewan the ownership is primarily in the hands of private individuals and right in there we have a complexity that leads I think the NDP party, with a concern for Saskatchewan and the government of Saskatchewan, to move a set of amendments that may in fact facilitate in some ways the power of the provincial government over the private owners that exist in that province. That is consistent with their philosophy and I am not surprised at all to see an amendment that does that.

In the context of doing that, we are disturbing the status quo, the jurisdictional precedent which has been argued off and on in the Supreme Court of Canada since 1867. We are introducing new words that will have to be argued, the meaning of which will only become apparent over time. We are doing that in the context of passing previous amendments, those particularly related to aboriginal rights, that throw into doubt large chunks of land, particularly in the western part of this country. We are throwing into doubt who has ownership and control. We are doing it, I guess, under the context that the one really important thing is the right of the provinces to levy indirect taxes and while I agree that there is symbolic and unifying value in asserting that right I suggest to the Committee that if it thinks that in fact it is giving anything to the provinces which is necessary, which cannot be circumvented, then the Committee is operating under an illusion.

When the Leader of the New Democratic Party last night asserted that the province of Alberta would be $6 million richer because of their power to levy indirect taxes I suggested that that statement is not confirmable in fact; that the previsions that exist, the laws that exist in the Province of Alberta to collect revenues from the production of resources from freehold land are unassailable and they can be set at the rate determined by the province. If the province wants $600 million from that freehold land it can already do it and there is nothing in this clause that affects that situation in any way.

I wanted to at least, Mr. Chairman, attempt to lay on the record those facts because I do not think they are well understood by the Canadian public; I do not think they are well understood by the members of this Committee; and in the context of the questions that I have asked I think the constant refrain in the answers, if you try to summarize them, from the people who assist the Minister of the Crown is that it makes no difference.

Question after question. it is being asserted that it makes no difference. That is not entirely correct because the new words will have to be argued in jurisprudence and it may make a

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difference; the Minister’s own criterion for many of the amendments that we have faced in this Committee is if it makes no difference it does not belong. That is the argument used by the government on many occasions to turn down suggested amendments, and I commend that wisdom and ask him to think that through in the next hour or two before this decision is finally reached.

I thank the Committee for its tolerance in allowing me so much time this morning.

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

Mr. Paul McRae followed by the honourable John Fraser.

Mr. McRae: Thank you, Mr. Chairman, and through you to the minister. I have two points I want to make, one to the minister and one to Mr. McGrath.

Just to clarify in my own mind, Mr. Minister, what we are actually doing in this NDP amendment is I take it at the present time the federal government has a sort of blanket power over trade and commerce throughout Canada and that by this amendment we would be in effect taking that blanket power away from the federal government and giving the federal government the ability to move in specific areas where it wants to veto things that the provinces would want to do. In other words, we are removing a portion of that blanket power and putting it into a situation where the federal government can exercise that power only when it decides in its interest to make specific legislation. Is that basically what is happening?

Mr. Chrétien: It is the power only of the federal government to intervene in trade and commerce, the federal power in the constitution, and we are extending that power to the provincial governments in the matter of interprovincial trade but of course we are keeping the federal paramountcy, the right to intervene if it is against the national interest.

Mr. McRae: Mr. Chairman, I have a great deal of difficulty with this particular clause. I am prepared to accept it but I am prepared to accept it after I have made it quite clear that this amendment by the NDP I think tends to weaken the powers of the federal government in this respect, in the sense that we have this blanket power and now we will only have power when we specifically decide to legislate.

I accept that. I am sorry to see that but I accept in the interest of the nation, of give and take that is necessary in putting a constitution together; and I think that this should be understood, that this is a considerable advantage to the provinces. There has been a great deal of give and take here, and I think that the federal government has actually given a large piece for this kind of agreement.

I think it is acceptable because it seems to be that that is the Canadian way and I just want my constituents and the people of the country to understand, that we have been extremely flexible in doing this.

The other point I would like to make has to do with Mr. McGrath’s motion and because I have considerable difficulty with the motion, I want to take a different line rather than a legalistic approach. There seems to be or there is a fair amount of evidence that where smaller jurisdictions are subjected to

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global corporations, transnational corporations and so on, the ability to manipulate the smaller jurisdiction is much greater than it is to manipulate the larger jurisdictions. I think if we go back to the offshore arguments and the fights that went on in the United States several years back, it was generally conceded that the states like Texas and the offshore states were much more easily manipulatable by the multinational or global oil companies, then was the government of the United States and I think that one would find particular evidence of that in other countries.

Now I am asking Mr. McGrath, and I am asking someone who is a very progressive person and who speaks for all of the people, and I always feel that he does that, is there not in your mind some concern perhaps not with the present government but with what happens after, the past history of Newfoundland, is there not concern that these global corporations would more easily manipulate any government of Newfoundland than they would manipulate the federal government? Is there not a case to be made in your own mind and in the minds of people of Newfoundland that perhaps a deal where 100 per cent of the revenue for as long as the province is below the national GNP or the national average, economic average, is there not a concern that the province could be in much worse shape and it would be better to take this 100 per cent?

It is purely a political question, an economic question, it is not a legal one, but it seems to me that that is one concern that I would have if I were a Newfoundlander in that particular situation.

Mr. McGrath: May I answer that, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Yes, Mr. McGrath.

Mr. McGrath: It seems to me that without intent that my honourable friend is being very condescending, if I can put it that way, and I know that was not his intent at all; but what he is saying is, you know, you little, naive Newfoundlanders and maritimers, you cannot look after yourselves, you need a big brother to look after you, the Ottawa bureaucracy, and you really cannot cope with these big multinational giants.

All I say to Mr. McRae, with great respect, because I am sure that was not his intent but that is the way it came across, is if he has seen the Newfoundland regulations or the Nova Scotia regulations and if he has seen the way that these two governments have been able to handle the multinationals, the Mobils and so on he would not say that. We are perfectly capable of looking after ourselves.

Now, that is to answer the question directly, but to go beyond that, the question implies some kind of exclusivity which is not the intent at all. We recognize. . .

Mr. McRae: I am sorry that you interpret this as being condescending. I tried to put myself in the position of someone in Newfoundland for whom this is happening and I try to put myself, I think of things that have happened to us in Northern

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Ontario, as people in Northern Ontario, as distinct perhaps from people in all of Ontario.

I am very concerned about what big power does to a smaller group of people, and this is why I tried to project myself into another jurisdiction, to another province, and say: how does that affect a province?

You have answered the question partially, but the question is, is that what you are talking about is a very, very long term thing and can you be sure that this kind of thing will not happen? I have seen it happen in Northern Ontario and we try our best to eliminate that but we do not always have the power to do it, and it is in that mode that I bring this to you. It would be a concern to me in Northern Ontario if approximately the same thing was happening and I would think that it would be a concern of yours in this connection.

Mr. McGrath: Well, all I can say to that, Mr. Chairman, is, and I do not want to get myself boxed in to answering for the Newfoundland government, they are well able to answer for themselves and that is not the position we should be in in this Committee anyway, to answer for governments.

However, to reply to Mr. McRae’s question, we have been exploited for so long by so many that we have become experts at dealing with them, perhaps even more expert in dealing with them than some of the people in Ottawa who would consider themselves to be much more capable of handling the multinationals.

We have had a long history of international and multinational companies and foreign governments exploiting our resources and believe me, we are not babes in the woods at this. And that applies to Nova Scotia and the Atlantic generally.

However, I just want to conclude in replying to Mr. McRae that in no way does my amendment to the amendment suggest any degree of exclusivity, it merely puts in amendment form the best efforts draft of last summer to which all provinces agreed—well, perhaps nine out of 10, but certainly most provinces agreed and, as I say, it has that level of support, it has that degree of legitimacy, if I can put it that way.

It is the best efforts draft as a part of the negotiating process of last summer that culminated in the first minister’s meeting. If it were to be adopted by the government it would not suddenly mean that Ottawa, the federal government has nothing to do with it, indeed that is not the case at all; it would still mean negotiation, and that is what is so unfair about the Minister’s position because to suggest that this matter should be settled by the courts and that somehow the Supreme Court of Canada is going to be some kind of a magic wand that is going to make this problem go away is just being totally naive because even if the matter were to be referred to the court and if the court were to settle in favour of Ottawa or the provinces, the problem still would not go away, it would still have to be negotiated in terms of the political dimension of it, in terms of the overlapping jurisdictions.

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

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Honourable John Fraser.

Mr. Fraser: Thank you, Mr. Chairman.

I want to ask some questions about the amendment, and Mr. Waddell may wish to answer this first question.

I understood Mr. Waddell to say some minutes ago that while he concedes what Conservative speakers in British Columbia said several months ago, that this amendment is not going to increase ownership of resources in the Province, he concedes that, he says that it will firm up control and that that is important to the Province of British Columbia.

Now, I wonder if Mr. Waddell can tell us in any specific way how this amendment is going to give anything to British Columbia that it has not already got on the question of control and management of resources, and having asked that I say I am not directing this question to the question of interprovincial trade but I am just saying if you have ownership, you already have ownership under the constitution, just exactly what has this added?

Mr. Waddell: If I can answer that, first of all let me say to my good friend Mr. Fraser it is not that Conservative speakers, and I exclude him from this, were saying that it was not going to add anything to British Columbia, they were saying that it was, as I understood it and I hope perhaps I got it wrong, stand corrected if I did, I thought they were saying that in fact it was going to take away provincial control of resources. I believe the honourable member from Vancouver Centre had said something to that effect, perhaps mistakenly, and I am glad to see that you acknowledge today that it is not going to take away provincial control. I trust you are not saying that.

Mr. Fraser: Well, just to clarify, Mr. Chairman, through you, I do not think I ever said it would take away . . .

Mr. Waddell: No, I did not say that.

Mr. Fraser: But I think there have been statements made by members of my own party in British Columbia that when you take a look at the total package, that there is a fear that with the power shifting to the federal government by way of a referendum, that some day resources of the provinces could be taken away.

Now, that may be what my good friend is alluding to but I am not in that argument right now. I am trying to get down to the basis of just what is this going to mean in terms of reality. I mean, I can see the symbolism of it but what worries me also is if you have to start saying that management and control, if you have to assert that management and control is now a provincial right, I thought we had that with our right of ownership. I thought we had it anyway.

Mr. Waddell: Let me respond to that, Mr. Fraser.

Surely you would agree with me as a lawyer that if you read the Potash case, that the case puts into question that right, the right of management and conservation, a right which is so important to us in British Columbia, and that is a threat to the right. There could be cases taken on the basis or possibility of companies challenging regulations in British Columbia, present regulations or future regulations, on the basis of the Potash case.

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Would you not agree with me that a lawyer could cite that case and use that case in challenging the programs that cover management and conservation of resources within British Columbia?

Mr. Fraser: Well, as a lawyer I am wise enough probably not to accept your invitation to pass judgment on how the Potash case might be used at some future time, but as a lawyer I will concede that almost anything is possible in the minds of lawyers when they are arguing a case.

However, I still do not understand what this amendment is going to suddenly do for the Province of British Columbia in terms of the actual day to day administration, the control and the management of our resources.

I am not saying that I am against the amendment, but what I guess I am grinding away at is that there has been a lot of rhetoric about this amendment. There has been sort of an atmosphere that this is a great breakthrough.

Now, it may be and it is helpful with respect to the problem of indirect taxation where the Crown does not own the land or the resources but they are privately held, I concede that, not only do I concede it, I accept it; but on the question of management and control of resources in the Province of British Columbia, ! find it very hard to accept that this is really going to give to British Columbians more control than they in fact already have now under the constitution, the Potash case notwithstanding.

Mr. Waddell: Well, first, Mr. Fraser. I am glad that you conceded that point with respect to control over the private lands, as it were, because Mr. Hawkes had said that provincial ownership was a mere symbol but of no practical value, and under my calculations, just on the basis of 20 per cent of oil and gas production in Alberta, I will come to British Columbia in a moment, is freehold production and now the provincial government could put an indirect taxation on that equivalent to a 30 per cent royalty, that would be something like $797 million on oil and gas.

Now, that is not mere symbolism, that is quite practical.

With respect to the effect in British Columbia, I cannot give you any particular figures but I can say this, Mr. Fraser, that it is more than just a symbol. The Potash case and the Cigol case put into question the control and the management and conservation of resources, and British Columbia as a province cannot permit that to happen because it could be challenged in numerous ways in future cases.

It is of particular concern to those of us who are New Democrats hoping to form another government in British Columbia, we intend to put in innovative and useful programs on resources. We do not want them struck down by the courts the same way that Saskatchewan had the problem with the regulation of Potash and control of windfall profits on one resource, on oil in Saskatchewan, so it is not a rhetorical thing, it is a real thing in that respect.

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Mr. Fraser: Well, I do not think it is as real as you feel it is, Mr. Waddell, but you have answered the question and I will of course consider it in due course.

I think it is important that people listening to this exchange, and I say this with complete satisfaction, with my good friend Mr. Waddell because we are good friends and have been for many years, that the taxation problem is not merely the same in the Province of British Columbia where practically all of our natural resources are -in the hands of the Crown so we do not have quite the same problem that we had in Saskatchewan.

I want to ask another question and that is, and I might direct this through you, Mr. Chairman, to the law officers of the Crown, in the amendment, and this question does go to the law officers of the Crown, proposed Section 92A(1)(c), the effect of that is that in each province the legislature may exclusively make laws in relation to development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.

Now, again I am not at all sure that that right does not already exist in the Province of British Columbia in any event, but does this weaken the federal power to refuse to go along with huge dam building projects in British Columbia if those dams would destroy the fishery or severely diminish them?

I am sure that honourable members know that one of the longest battles, and it is not over yet, ever fought in this country has been the constant fight on the part of citizens and some politicians to stop the dam builders in British Columbia. For years we have been facing the threat of eventually putting a dam on the Fraser River. There are extensive plans now for Alcan to launch its Kemano 2 project, probably the biggest grab of water resources attempted in 30 or 40 years in British Columbia.

There are plans to make extensive electricity sites on other rivers, and this is not a struggle that is in the imaginations of a few people in a conservation organization somewhere, it is very real and I can tell you that as a British Columbian and one who has been involved in this battle for a good many years, as my friend Mr. Waddell well knows, I do not want this amendment to in any way derogate from the federal power to protect the fisheries in British Columbia and to protect the water that is vital to those fisheries.

I do not have to go into pointing out to the honourable members all the other benefits of those rivers and river systems in terms of recreation, economy, tourism, et cetera; but I take a look at that and I say I am worried about it and I am very worried about those words that say exclusively make laws in relation to development of sites and facilities in the province for the generation and production of electrical energy.

I can tell honourable members, if you think I am fooling, that the minute that is seen by some of the people back in my province, some of the people in British Columbia Hydro and some of the people who think that the way you solve all problems is to set a bunch of engineers together to change nature, there is a very good-possibility that those words will be used to support propositions which will result in major changes to rivers and river systems, and I am concerned about it, and I

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do not think that anybody in this Committee ought to not be concerned about it.

You can say, through you, Mr. Chairman, and probably it will be said: well, this is the problem in a constitution because after all there is a specific section that deals with fisheries under the constitution and it is a federal authority. It was mentioned some time before about navigable waters.

Well, I do not notice the federal government rushing in to stop the new project on the Peace River which is going to wipe out a huge chunk of our arable farmland in British Columbia, I do not see the federal government rushing in to say anything about the fact that that might interfere with navigation.

The Peace River not having anabas fish in it, at least not salmon, it cannot be defended by the federal fisheries department, I do not see anybody in the federal government rushing out to save the Skagit River which is under threat of being flooded because a dam is proposed on the American side by Seattle city light, so if we pass something here which gives comfort to the enemies of common sense and conservation and our heritage. I think we had better understand what we are doing. I do not like it.

What I am saying is that I think this amendment ought to spell out that control cannot be interpreted to mean that the federal power to protect the fisheries is in any way derogated from, and I think it should be spelled out. I do not have a worded amendment but I would invite the Minister to have his officials look at this over the next hour or the next few minutes because if this is doing what I think it may do, we would be very, very remiss and neglectful in this Committee today not to take a very hard look at it.

I am not asking that the amendment be knocked out, or the purpose of the amendment for whatever value there is in it, I come back to my conversation with Mr. Waddell; I am not asking that.

I am saying, why can we not be careful enough with words here so that we know that that clause cannot give comfort to people who want to put it down—when the Fraser River expanded, Alcan Development in British Columbia, to the detriment of the fisheries and other places.

British Columbia is a long way from many of the people in this Committee; but the West coast fishery is important to every Canadian; and if ever there was a field in which the federal government should have absolute assurance that its power to protect the fisheries, on behalf of all Canadians is not going to be whittled away, and we are not going to do here what can be taken as a transfer of more power than the provincial governments need, and as a consequence of that the provincial government then turns around and says: “Ah, you cannot stop us from building those dams any more, It is our business”.

When we take a look at this wording, it is not just development; it says “conservation” and “management”. When you put those words in, which are, of course, legitimate things for a

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province to do, but when you put those words in I can see a court being invited to rule that by putting “development”, “conservation” ands “management” in, you are giving the province the question of conservation.

A province should of course, be very concerned about conservation; but the federal government has the power over fisheries and our constitution. It has given way on prices and it should never have done that; but it has not given it away in British Columbia—not yet!

I am on the record and I say that I am not agreeing that provinces should be grabbing the jurisdiction that protects the fisheries.

Provinces can enter into arrangements. We do it in my own province. There is nothing wrong with that. Provinces can work with the federal government, as they ought to; but I am very worried that we may be turning over to the provinces here a power that somebody is going to say diminishes the power of the federal government to protect the fisheries, and when I say in British Columbia specifically, I say that because that is the place with the threat of hyro development greatest to the fisheries. But it is a Canadian fishery of very great value to all Canadians.

So, my position is, through you, Mr. Chairman, to the government, will you consider that and will you come back and talk to us about it in the ensuing hour.

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

Mr. Nystrom.

Mr. Fraser: Mr. Chairman, might I have an answer to the question: Is the government side prepared to give this matter some consideration, and we can talk privately and perhaps bring it back to the table. I do not think what I am asking is anything but very reasonable.

The Joint Chairman (Mr. Joyal): Thank you, the honourable John Fraser.

Mr. Waddell.

Mr. Waddell: Mr. Chairman, while the officials are consulting, I would say that I take, as always, what Mr. Fraser says, with a great deal of sincerity. It is very important. We share the same views about conservation in British Columbia.

I would point out that we still, in the British North America Act, have the fisheries power, and even after this amendment is passed, if it passes, there will be conflicting uses of resources.

The member mentioned the Kemano II Project. It is simple.

You want to build a dam and you may kill the fish; or you may want to cut off water or put more water through to produce more aluminum and that may hurt the fish. The courts have already struggled with this in British Columbia. Just recently, Mr. Justice Berger—l cannot recall the name of the case—but on this exact problem, had to weigh the interests of the province regulating the dam, and weigh the interest of the company producing the aluminum needing the water and he had to weigh the interest that we all have in the fish. He came down in favour of the fish in that particular case.

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I think we are always going to have that, even after this particular amendment.

So in a sense, it may be a bit of a straw man.

I am perfectly prepared to look into that matter further, and of course, Mr. Fraser is prepared to look into Mr. McGrath’s matter on the offshore to ensure environmental control there.

However, I think it is something we really cannot get around, and to reiterate a point that it is protected in the sense that the federal government still has control over fishery in the British North America Act.

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

Mr. Nystrom.

Mr. Nystrom: Thank you, Mr. Chairman.

Just a few short remarks. I want to speak against the Liberal party’s subamendment, because I think it is a negative amendment and is a major step backward compared with what we are proposing in our amendment to this Committee.

The amendment that we are proposing is that the province has the right to make laws with respect to the exploration for nonrenewable natural resources: has the right to make laws concerning the development, the conservation and management of those natural resources.

Then we get to the very key phrase for me, which is, whether or not such production is exported in whole or in part from the province.

“In whole or in part from the province” means if it is exported from province A to province B or C; it also means it is conserving and developing and development and management of resources if it is exported from province A to country A or country B or C.

The point I want to make this morning is that I think we should treat natural resources in the same way, whether they go interprovincially or internationally.

I think it is very important; it is very important to a lot of provinces—a lot of provinces: and I do not see why the government across the way is so fearful of allowing this kind of reasonable amendment to the constitution of Canada!

We are not talking here about international treaties where you are going to set the price and join OPEC and all those kinds of scare stories that Liberals like to talk about. We are talking about something here which has federal paramountcy; federal paramountcy! That federal paramountcy is there in proposed paragraph (3), whether that resource goes interprovincially or internationally.

It is beyond me. Mr. Chairman, to try and understand why the Liberal party would not accept such a reasonable part of the amendment we put before you here today.

I think that discriminates against certain provinces and against certain resources that go internationally; I think of potash, for example. and other provinces which do exporting of their natural resources to the United States and other countries of the world.

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I would just appeal to the government to reconsider their position and treat all resources the same in terms of their management, the conservation, their development—regardless of what the destination may be.

If it is a resource in Quebec that goes to Ontario, or a resource in Quebec that goes to the United States, why should the planning of that resource in Quebec be treated any differently because the destination is a foreign country, rather than a neighbouring province?

I think, Mr. Chairman, the Central Canada Potash case in Saskatchewan was a case in point—in Saskatchewan, that resource went internationally.

I want to make very sure that the province has the right to prorate, to manage, to plan, to conserve, whether or not their resource goes interprovincially or internationally.

I want to keep stressing to the government across the way that we are not talking about giving powers to the provinces that are awesome. Because we say here in proposed Section 92A(3) that nothing here derogates from the authority of Parliament to enact laws in relation to matters referred to in that proposed subsection. Where the law of Parliament and the law of the province conflicts, the law of Parliament prevails to the extent of the conflict.

In other words, Parliament can always step in and say, “No, you are wrong: you must not legislate there.”

Parliament has that protection. Canada can still speak with one voice, and as a nation in this Parliament and say what province A or province B is doing is wrong.

As we are going to be saying in this amendment, if the Liberal subamendment passes any way in regard to interprovincial trade, I pose the question: Why can we not do that in regard to international trade?

Mr. Chairman, I think in this country we need something which the NDP amendment is calling for, and that is a more flexible federalism.

We have had in Canada for a long time a few areas of jurisdiction which have been concurrent—and I can think of agriculture, which is going back as far as the olden days, where agriculture is something where the powers are shared with federal paramountcy.

Our resolution is saying the same law should apply to resources; you have a shared jurisdiction; you have concurrency, where the provinces and the federal government share a field in international and interprovincial trade; but because of the fact that it is going out of the province, you have federal paramountcy. In other areas, you have provincial paramountcy, I think that is very important.

So I want to make that appeal to the government to reconsider their position and to make sure in the constitution that the laws we are talking about prevail equally regardless of the destination of the resource.

While I have the floor, Mr. Chairman, I would like to say in response to the Conservative Party that I think that I think there is one additional new power here, which I think is very

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important, namely the power of indirect taxation going to the provinces.

Someone referred yesterday to the Cigol case. That was a case where the Supreme Court struck down a taxing regime in Saskatchewan because they ruled it to be ultra vires, because they held it to be indirect taxation.

I want to say that after an amendment of this sort, the Supreme Court will no longer be able to do that, because the province has the power clearly to levy indirect taxation as long as it does not discriminate against other parts of this country. I think that is a very important thing.

Mr. Hawkes seems to be very concerned that this might somehow violate the opportunity on the part of the company to go to court over a certain taxation regime of a province.

Well, my response to that is very simply: “no”; the companies can still go to court. They can still go to court! But what is now clear is that the province, as well as the federal government have the power to levy indirect taxation, so that in terms of jurisdiction and jurisprudence, the province would be within its legal scope to do so.

But what it does not prevent is the federal government, if it think the laws are wrong and that the provinces are doing the wrong thing, from exercising the ultimate of federal paramountcy.

I think that is right. It is a more flexible, more modern federalism; and I think this kind of philosophy which has existed in agriculture ever since the federation that will now exist here, hopefully, for international and interprovincial trade, certainly for indirect taxation, that philosophy should be extended to other areas of jurisdiction so that we have a strong federal government, but with enough power residing in the provinces, but with flexibility so that each province and each region can develop according to its character, so that we can have regional reconomies which complement the national economy, rather than the constant conflict we have in this country through balkanization.

Thank you very much.

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

The honourable Jake Epp on 21 question.

Mr. Epp: I thank the Committee.

Mr. Chairman, I would like to ask Mr. Nystrom a question. I admit that this matter is not as clear in my mind as it appears to be in his. But if I can just lay out the case for you, Mr. Nystrom, you say that on international trade, the right of indirect taxation—you related, for example, the export of hydro from Quebec,

We have cases, for instance, of Quebec or Ontario Hydro, or in my own province. Manitoba Hydro, now working on extensive exports to the mid-west.

It was always my view that in those agreements made by an electrical utility owned by a province—in other words, a provincial Crown corporation—that you did not need the power of indirect taxation in those transactions, because the price was a negotiated one between the buyer and the seller.

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So if you placed an indirect taxation on that, that in fact it would affect the selling price.

Now, I can see where you can channel some revenue to provincial coffers away from the utility. I can see that.

But in terms of dollars at this moment, I am not convinced that in fact there would be additional revenue accruing to the province or its Crown-owned provincial utility through the power of indirect taxation on exports, for example, of hydro-electric power outside the country.

Can you give me an answer to that, because I must admit I do not have full knowledge covering that aspect of the matter.

Mr. Nystrom: I think, Mr. Chairman, it gives you a couple of important powers which do not exist under the constitution.

Now, Mr. Epp is correct in talking about price and so on. I did not refer specifically to hydro in Quebec. But what this amendment does is to give the province the right to levy indirect taxation. That is not in the existing constitution; if you look at asbestos in the province of Quebec or the very Cigol casein my own province. It gives that power.

It also gives the power—concurrent or shared power to interprovincial trade. In the case of hydro again, this may be useful in Newfoundland, with some of the conflicts that they are having in that province. Useful for that province to have some jurisdiction to move in that area.

In terms of money, I have no calculations before me for the Newfoundland situation, but my understanding is that it could provide legally more scope for the province of Newfoundland to tax the resource in terms of indirect taxation, in terms of concurrent powers and the like.

Mr. Epp: Maybe I can ask one other question of Mr. Strayer of of the Minister.

The Joint Chairman (Mr. Joyal): Yes.

Mr. Epp: Exactly in the same area, may I have the view of the department or of the Minister? I am not going to repeat the case, or try to take up the time of the Committee unnecessarily.

But I do not see any more revenue accruing—l am not arguing the indirect taxation question as a power, that there is not a right there, an increased power if you want to put it that way; but I am trying to put it into practical, on-the-street terms.

I do not see any more revenue accruing on international agreements made by provincial utilities such as electricity, for example, if in fact the indirect taxation power were granted to the provincial utility.

And if I could just make one other point, Mr. Minister, and what effect would that have on the power of the National Energy Board in terms of export hearings and hearings for export licensing? May I have an explanation for that?

Mr. Chrétien: As regards the first part, the provincial governments do not tax their Crown corporations. They control the price to their consumers; when they sell abroad, the Energy Board approves the price of export, and every dime of

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the profits is owned by the government because they own the company, and all the profits of the Crown corporation are going into the coffers of the provincial government; so they do not need to tax; because that is their own money. You do not tax your own money.

Mr. Epp: They are taxing themselves then.

Mr. Chrétien: Yes. As you say, they cannot tax themselves. That does not give them any new power, because they have all the possibilities of revenue; you cannot have more than 100 per cent of the revenue. They have 100 per cent of the revenue.

So it happens in Canada now that the electrical power is owned by the Crown—all the provincial governments; well, not in Alberta, not in P.E.I.; but that could apply in some provinces; but in my own province it is owned by the provincial government.

Of course, I can name one or two little outfits—one for the Alcan—owning its own generating capacity in the Ste. Lac, St. Jean area. There are cases like that, but not many. So they own 100 per cent and I would agree with you that when it is owned by the government, it does not give them any new power because they have 100 per cent of the revenue anyway.

Mr. Nystrom: Mr. Chairman, I feel I owe Mr. Epp a more detailed answer to the question, if I may.

In terms of Newfoundland, if one were to give them the two additional powers, we believe they could collect several hundred million dollars more because of that. They do not have the powers today. The precise example I would give you is the question of Alberta, where about 20 per cent of the gas. . .

Mr. Epp: Are you not back to interprovincial now, Mr. Nystrom?

Mr. Nystrom: A combination of both.

Mr. Epp: But you get that through your amendment. I am not talking about the interprovincial argument. I follow you there.

I do not follow you on that extra revenue on the international, because you are dealing with Crown corporations provincially-owned and they would not tax themselves.

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

[Translation]

Senator Tremblay: I would like to ask for some clarification from Mr. Nystrom who has referred to the changes that the NDP amendment would make in the Quebec-Newfoundland relations with respect to revenue that Newfoundland would draw from exporting its electricity to Quebec.

Does Mr. Nystrom mean that, under the proposed amendment, Newfoundland would be in a position to break or eliminate the contract signed by Quebec officials, that is to say Hydro Quebec, and a representative of Newfoundland?

[Page 46]

Would that be one of the effects of the proposed amendment?

My question is addressed either to Mr. Nystrom, who has moved the amendment or to the Minister, since he is taking at position on it.

Mr. Nystrom: I will try to answer the question.

Two or three months ago, the Economic Council of Canada published a report in which it was stated that Newfoundland and Quebec might be able to get an extra $500 million a year if they had more powers than they now have.

[Text]

Now, they only have a contractual arrangement with the province of Quebec. I do not know what that contract is. But the Economic Council of Canada did state that perhaps they can collect up to an extra $500 million per year.

What we are saying in this amendment is that if you give the power of indirect taxation to the provinces, and if you give them concurrency in interprovincial trade, then perhaps they will have additional powers that will give them access to more funds. I cannot be more precise than that, I am sorry.

Senator Tremblay: I think it is important and I would like to know if the new jurisdiction of powers granted by your amendment to Newfoundland would have the consequence that Newfoundland could change unilaterally the terms of the contract that had been signed a number of years ago and which is in force for quite a few years ahead. That is a very serious question in the sense that new power would retroactively change the contract between two bodies which were competent at the time to sign that contract.

Mr. Chrétien: The contract will remain the contract. What we are confirming in this amendment, we are saying that we are confirming the power of the province in the generation of electricity and in terms of the contract, the contract will remain the contract.

The question is taxation. Indirect taxation or direct taxation, the provinces have power in taxation. We are extending a new power to all the provinces in indirect taxation. So the question, I do not know if they can or cannot decide that will give them more power to tax, I do not know if that can apply to that contract, I have no idea, because I have not seen the contract. My information is that the taxation possibilities were probably covered in the agreement.

Senator Tremblay: May I follow on that. So you do not know if it would affect in substance the price agreed by contract to do indirectly which has not been done directly and understood that the new power would not apply to substance in its effect, the price agreed by contract already signed, but it might apply to new export of electricity from Newfoundland to Quebec.

[Translation]

Mr. Chrétien: This is a many faceted problem, Mr. Tremblay.

If this amendment is passed, the provinces will be granted it new power that is called the power to indirectly tax resources.

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It is a new power. As to whether they will use it or not, it is a matter of pure speculation.

There is a contract. There is a contract between Newfoundland and Quebec. The agreement between the two provinces will not be effected by what we are doing here.

I do not know whether any of the provinces will decide to use its new taxation power. It is a matter of pure speculation.

The power to tax obviously has some effect on costs.

Senator Tremblay: On the real costs.

Mr. Chrétien: Everyone wants more power to be given to provincial governments and that is what they are getting. They have the power to tax, but that will not effect contractual obligations between Newfoundland and the Province of Quebec.

[Text]

Mr. McGrath: May I ask a supplementary question. Mr. Chairman.

The Joint Chairman (Mr. Joyal): Honourable James McGrath on a supplementary question.

Mr. McGrath: I just want to make sure that I understand the Minister correctly because when the government first announced its intention to move this amendment the Minister’s colleague in the Cabinet, Mr. Rompkey, went to Newfoundland and joined with the Leader of the Opposition in Newfoundland at a press conference in which they expressed the view that this would correct the injustice of the contract between Newfoundland and Hydro Quebec. We know of course, that that is not the case. The Minister has not confirmed that, What the Minister is saying is that the new power contained in this amendment in no way will give Newfoundland the right to tax back the excess profits that have been made by Quebec in the export of the power to New York that they are buying from us at bargain basement prices.

Mr. Chrétien: I just say that the provinces have the power to tax indirectly. I say that the term of the contract will be the same, the level of taxation has to be decided by each province, I do not know if they will use it or not use it. So one can make all sorts of speculations. I do not want to speculate. What we are giving here is the power of indirect taxation to all the provinces and it is a request that was made to us by all the provinces.

Senator Tremblay seems very worried.

Senator Tremblay: I am worried.

Mr. Chrétien: But it was asked by the Quebec government, like anybody else. So what the provinces will do with that new power. it is their problem, it is not mine,

Senator Tremblay: I really feel the need to explore a little bit more.

[Translation]

Clause 92A. section 4, last paragraph. The power of indirect taxation can be exercised 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.

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I thought this meant that the price was covered by this restriction. In other words, if you apply this to oil, one province could not, through indirect taxation, have two prices: a low price in the province and a high price for oil exported to another province.

If you apply the same principle to electricity. the low price for electricity in Newfoundland could not, through indirect taxation, be lower than the export price.

This seems to be the meaning of this paragraph, which brings us back to the problem of contracts that are now in effect.

If existing contracts provide for a difference between the export price and the domestic price within a province, could the province, through indirect taxation, reset the export price stated in the contract and the domestic price? If this is the case, it would be an indirect way of changing the basic term of the Hydro Quebec-Newfoundland contract.

Mr. Chrétien: It is not up to me to speculate as to what Newfoundland will or will not do. We are giving the provincial governments a power that they all ask for, the power of indirect taxation in the area of resources.

That does not change contracts. It is a taxation power and there is a nondiscrimination clause to the effect that a province cannot tax other Canadians at a different rate than it taxes its own citizens. The wording is clear. If an indirect tax is to be levied, it has to apply equally to Canadians in that province and in other provinces.

That is how I see the situation and I do not want to start speculating as to what they will do or will not do. I am simply telling you what they have gained.

Senator Tremblay: One more point of clarification. I am sorry, but we are dealing with an issue that everyone knows is touchy.

If an indirect tax on electricity were levied in Newfoundland, it would have to apply equally. Or to be more specific, Newfoundland could not levy an indirect tax solely on electricity that is exported. It would have to apply within the province as well. Is that correct?

Mr. Chrétien: I understand what you are saying, Mr. Tremblay. If the Government of Newfoundland were to decide to levy an indirect tax on electricity. it would have to apply equally to electricity sold within the province and to electricity that is exported.

Senator Tremblay: I think that the point has been clarified.

[Text]

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

Honourable Ray Hnatyshyn.

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Mr. Hnatyshyn: Thank you. Mr. Chairman. I just want to make some general remarks with respect to the proposed amendments and the tendency indicated in terms of these amendments. Let me say at the outset that I very much approve and support the concept of better defining or in fact making sure that ownership has a meaningful sense in terms of our constitutional and legal interpretations.

I think that we have a situation now under our existing constitution where resources are clearly owned by the provinces. Where the difficulty has come in over the course of the years, Mr. Chairman, has been that there has been a conflict with respect to the matter of taxation by and large. That is a principle area in which disputes have arisen with respect to the real meaning of ownership, and this is the case in western provinces generally, Saskatchewan and Alberta, British Columbia, the western provinces were involved in the energy resources particularly and had some serious disputes with the federal government over the years as to the paramountcy of taxation of those resources.

This has been interpreted by the provinces, that is to say the federal taxation has been interpreted by the provinces as being an attack and assault on the very essence of ownership by the provinces.

So I want to enter, at this point in time, while I support the initiative and the idea that we want to somehow reassure the provinces with respect to the rights of ownership, I want to put it in very simple terms, a caveat that I have that we may willy-nilly be proceeding with these amendments to the detriment of the concept of ownership of the provinces and I want to give my reasoning on this basis.

I go back and think of some of the disputes that have arisen between the federal and provincial governments over the years, and you will recall that a very large area of dispute was with respect to the federal government taxation initiative prohibiting, in effect, the deduction of royalties paid to provincial governments on resources, which put many companies involved in resource production into an untenable position. So the situation arose whereby a combination of federal and provincial taxes, there was either a very nominal or sometimes a negative return to people involved in the exploration and development of resources in the province,

So one has to ask oneself, if you look at what is being proposed here just in the simple common sense point of view, if someone tells you or me that we are the owners, and we have that position in law, that we are the owners of a resource whether or not that generally accepted view now, and developed in the common and civil law with respect to the rights of ownership, may in fact in the years ahead, be limited by the courts in interpreting the present proposed amendment to the constitution where ownership is specifically defined. I refer to the fact that now ownership means the right to explore, right to develop, right to manage your resources; and I just simply leave it to your own common sense as to whether or not a court in interpreting this. might not have the avenue open down the way of limiting to those specific areas the right the provinces have over their resources.

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Now, in terms of indirect taxation, I think that is a fair and reasonable amendment because one of the problems has been that a tax is a tax and whether you do it directly or indirectly, to the average citizen it does not really make any difference, but it does have legal implications. That was one of the problems that arose in the Saskatchewan case, the CIGOL case, and there were essentially two reasons why the Supreme Court of Canada ruled that the taxes imposed by the province of Saskatchewan in that particular instance, were ultra vires of the province, were not within their jurisdiction. One was, because it was deemed by the court to be an indirect tax. So on that exclusion the provinces had with respect to taxation, the courts said on that technicality, “The tax is invalid”.

The second point was that it was a question of whether or not this affected interprovincial trade because there was an element here with respect to the export of, across the provincial boundary of the province of Saskatchewan, and the court then said this is a matter within federal jurisdiction and therefore, it is also on that basis, ultra vires. That was the consensus of opinion in that case.

I do not think that we should thereby consider that because now we are proposing or purporting to change the wording in the constitutional provision in which there is going to be the right of the provinces to be consulted in interprovincial trade and the right to impose indirect taxation, that that is going to be the solution of the problem; because this section is quite clear and the law is quite clear that down the road, as Mr. Nystrom himself has pointed out, as one of his main points with respect to people who are concerned that the provinces are going to have unusual powers over resources, Mr, Nystrom made a very telling statement in his presentation. He said well, no one should really worry, because it says in the Clause that if there is any conflict or if the people of Canada themselves want to take a different direction with respect to the interpretation of ownership that is taken by each of the provinces, Parliament may merely pass a law and that law will prevail.

I think that is important for us to remember when we are talking about these amendments, the most important consideration is this, provinces may have an indirect right of taxation that may bring them in $500 million or $10 zillion. As soon as the federal government decides to take the position that those taxes collected by the provinces are not to be deductible by the companies involved, or the taxpayer involved, for computation of the federal tax, no matter what the intention is of this clause, my concern is that the federal government law will prevail if that is what the clause says and that is what the law says and I suggest to you that there is a concern we should have a look at and address ourselves to with respect to the whole question of whether or not we are moving ahead.

As I say, I raise this as a serious concern that I have with respect to the implications of what we are doing with respect to this clause.

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I go back to my original premise. Ownership in law and according to everyone in Canada’s general understanding of the meaning or definition of that right, means pretty well universal control over a particular commodity.

We know we have a federal state here, we know we have a balance of power that we are faced with from time to time, and I do not want to in any way have people going away from the table here suggesting that this is going to necessarily resolve the whole question of the conflict between the federal and provincial jurisdiction and the rights of ownership.

The second point that I wanted to raise in relation to this matter is that we do have the other reality that when we have these circumstances arising, the provincial governments have in a number of instances reshaped their taxes, have imposed higher royalties, have reacted in ways in which they were going to get the kind of return on their resources in face of what has been a federal taxation regime imposed on the resource.

They have also gone to the device of creating Crown corporations. That is another device that provincial governments have used to get paramountcy over a particular resource, and that is a growing tendency amongst the provinces even in such conservative provinces as Alberta. We have seen the development of the Crown corporation, provincial ownership concept with respect to rown lands and production on those lands and a board which will control the production on a conservation basis of the resources in those provinces.

I think Mr. Nystrom talks about progressive conservatives and I am glad to report to this Committee that beyond dispute every Conservative I know is progressive.

The Joint Chairman (Senator Hays): Order. Order.

Mr. Hnatyshyn: It is question of fact but I am not sure that is to germane to this argument.

What I am saying is that we look at the reality today of the federal government’s financial position, we look at what has happened with the federal government imposing a tax at the wellhead in terms of energy resources now, which is a tax which they have imposed which goes right to the wellhead and which is taken off before any of the provinces taxes come forward.

I do not think we can be oblivious to the reality, as I see it, that this is not going to, this amendment is not in any way, I suggest to you, going to resolve the question once and for all and somehow make the provinces have total control over the whole question of ownership of resources within their own provincial boundaries.

I simply wanted to put that caveat in, sympathising as I do with the fact that provincial ownership should mean something; and I am very sympathetic, coming from Saskatchewan, a province that has gone through a long period of time when the economy has been under severe strain, where the people have suffered great deprivations, where we are now in the process of gradually developing the resource base, it is a very

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important issue for us in the Province of Saskatchewan particularly.

So I sympathize as a Saskatchewan member with the idea of giving real meaning to the ownership of resources in my province as I think every province and resident of each province should have.

However, I wanted to make these remarks to say that while the proposals here may be palliative, that I am going to suggest to you that there may be down the road a real questioning as to whether or not they expand rights within the province; secondly, in terms of the taxation matters whether or not the provinces are gaining with respect to this amendment.

Mr. Nystrom: Mr. Chairman, just on a point of order if I may, I have a hunch that maybe Mr. Hnatyshyn misunderstood something that I said before and just so the record is not distorted I would like to correct it if I have an opportunity.

He was concerned about federal paramountcy and, Ray, if you look at proposed Section 92A(3) federal paramountcy refers only to things that are in proposed Section 92A(2), which is export from the province and production and prices and supplies. It does not refer to the right to explore, manage, conserve and develop.

None of those are touched by federal paramountcy so I wanted to make that point.

The other point, Mr. Chairman, is Clause 6 and I will just read it very carefully, members may not have noticed it. It says:

Nothing in proposed 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 clause.

And the reason for that being tacked on was just to make sure that nothing here would derogate in case there is a conflict in the courts or some fine legal argument that a brilliant lawyer like Mr. Hnatyshyn could pick up and turn into a precedent.

So I just wanted to make that very, very clear, that there is no derogation whatsoever and paramountcy only refers to proposed Section 92A(2) and I would just ask people to re-read proposed Section 92A(2), it is production and so on, it is not conservation and development and management.

Thank you very much.

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

Mr. Hnatyshyn: I am glad, Mr. Chairman, that Mr. Nystrom asked me that question because I appreciate his elucidation, I take it it was in the nature of a question.

I think the points that I made were, and I appreciate the clarification that Mr. Nystrom offered; what I am saying is that in this particular amendment there is a suggestion that either by virtue of the right of indirect taxation, which I think

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is a nuisance matter and which I can understand you want to obliviate all these artificial distinctions between direct and indirect taxation because I think the province should have the right to tax their resources, but the fact of the matter is there is a question here in our federal system with respect to the ability of the federal government to impose its own taxation system and its own rules with respect to taxation which, regardless of how much money they take, a province collects by way of indirect taxation, the federal government wants to move in and take a larger part of the resource revenues, this provision will in no way impede that particular ability on the part of the federal government.

Secondly, my experience has been with respect to judicial interpretation of constitutional and legislative provisions, the courts tend to look at these articular provisions and if there is any precision within the context of a provision they will come to the conclusion generally speaking that the specific provisions supersede the general concepts.

So all I am saying, again, is a caveat, simply when we look at this particular provision, the court is asked to adjudicate upon the meaning and powers involved in ownership as a general concept as opposed to saying that ownership means a, b and c; the tendency of the courts has been to make their definition and conclusion on the basis of the mere specific definition of a concept.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Ray Hnatyshyn.

Honourable Senator Roblin.

Senator Roblin: Thank you, Mr. Chairman,

I think that, along with some other members, i am having a hard time making my way through the thicket because we are dealing with a measure which is or may be no more than cosmetic in some respects, but I suggest will be a subject of much review in the courts of this land if we pass it. Certainly it puzzles me about the meaning of some of things in this measure and I want first of all I suppose to make a comment about indirect taxation, because the idea that indirect taxation is something the provinces would like to have is not a new one. In fact, I can recall an occasion when it was offered to the provinces and they decided not to accept it, and they decided not to accept it for the very good reason that the tax collector is a pretty ingenious, fellow and if he cannot catch you through an indirect tax, he darn well finds another tax with another name that he can tax you through.

And when the Province of Saskatchewan ran up against this barrier in the courts with respect to indirect taxation, they were pretty ingenious people and they found another way to raise the same money from the same people under another title.

So it seems to me that when we are dealing with indirect taxation here we are thinking about the Province of Saskatchewan, there is a legal maxim told me by a lawyer of a friend of mine, I have some friends who are lawyers . . .

An hon. Member: Shame, shame.

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Senator Roblin: Who said that hard cases make bad law, and I am not altogether sure whether that observation applies to what we are doing here but I think there is at least a suspicion of it. But it seems to me that this idea of indirect taxation for the provinces is such a big thing, perhaps is more in the imagination than in reality, because if you want to tax something, particularly a natural resource in the provincial arena as it stands now, tax collectors have always been sufficiently imaginative to find ways in which that money can be clawed into the treasury without breaching the constitutional proprieties and I suspect that comment applies to what we see here.

However, supposing it does not, supposing it is something more than that. We are told that the Province of Alberta now can raise $797 million more money through an indirect tax on natural resources. Hip hip hurrah. I wonder where the Province of Prince Edward Islands stands if it has an 8 per cent indirect tax on its natural resources. Or if I want to come closer to home, the Province of Manitoba. It is not going to be able to raise sums of that sort. And it seems to me that if you really are concerned about indirect taxation, apart from the particularly hard case of Saskatchewan before the Supreme Court, why are you limiting it to natural resources? If it is a right that the provinces ought to have, then surely it should be a right across the board. I see no reason why that should not be the case.

I am not advocating, I do not think the provinces need indirect taxation, I think they can raise the money they need through the present constitutional system as it is now; but when I see it here and I am told that the Province of Alberta can get in a lot more money this way, frankly I do not believe it because if they want the money, they can get it now through the measures that are at their disposal. There is not a question in the world, not a shadow of doubt in my mind that that is the case, that if they want $797 million more from their natural resources, they do not have to go to an indirect tax to get it and neither does any other province.

So it seems to me that this is just a point which is of less value than perhaps some might believe.

Well, that is a personal opinion and other people may differ, but where I want to sort of come a little closer to an interest of mine is in the provisions that relate to the generation and production of electrical energy, because in some kind of a way we seem to be merging the generation and production of electrical energy with a non-renewable natural resource. It is clearly linked in some respects in here and there is a reason for that, because a good deal of energy is raised by non-renewable natural resources, namely coal.

In the Province of Alberta, for example, we find that the bulk of the power is produced through burning of coal, and if the Province of Nova Scotia continues with the policy that it has set forth on it will be producing a lot of electrical energy from coal, so I can see there is a connection there,

However, there is another important source of electric power and that is water.

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Now, where does water come into this scheme of things? I would like some legal explanation, if I can have one, as to how electric power, in both of its characteristics, either as coal derived or water derived, fits into this thing or whether it fits in at all. Because, it seems to me that if you have provided for the management, what are the words we use here, the management, development conservation and management of the sites and facilities in a province for the generation and production of electrical energy, you are talking both about hydro plants and about coal plants.

What are the implications for those words of development, conservation and management with respect to people who are using the same water in the same river for a multitude of purposes, including the development of hydro electric power?

Now, it may be that there is nothing to talk about here, I do not know, but it occurs to me that it is a matter that I would like clarified because if by the management of a power plant on the Winnipeg River in the Province of Ontario one can affect the management and the production of power from other plants on the Winnipeg River in the Province of Manitoba, as is perfectly true and actually done today, what does that mean in constitutional terms?

The Province of Ontario has the constitutional right under this, not just as an arrangement between the two hydro systems which is a perfectly natural thing, but the constitutional right to affect the production of power in Manitoba because they are using the same water and the same river but they happen to be upstream in the Province of Ontario. It bothers me. I would like to know how we get around that conundrum.

I do not know what practical implications it has but when you are passing a constitution that is going to last for a long time, you had better be sure that you understand what the practical implications are. Maybe there is something to be considered with respect to the use of the water in the Province of Newfoundland and Labrador as it flows through their province to downstream facilities, if some should ever—well, I am sorry, I have got that, I retract that argument because the river runs the other way, it cannot be done so I leave that out of my consideration; but it is a bother to me.

On the same line of reasoning one could wonder about the watershed of the Nelson River. Now, the Winnipeg River that I mentioned first is in place, we know what goes on there, there are power plants on both sides of the boundary, the power plant operation in Ontario affects what goes on in the Manitoba power plant directly. There is a more remote argument in the same line to be made with the water that runs down the Nelson River and into the Hudson Bay, so those are problems that do bother me.

Now, if I could pose another question on this same area of hydro electric production as it is affected by what I call the non-discrimination clause in here. There is a clause in here which, if I read it correctly, says that if a province is operating its resource, and I think it is proposed subsection (4)(b), its hydro electric resource, it has to be careful that it does not put in a system of taxation that differentiates between users in the

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province and users outside the province. That is the way I take it.

However, that is exactly what we do in Manitoba today. We use the power of the legislature to the raising of money in respect of the sites facilities in the province and the generation of electrical energy and the production therefrom, these are the words of the statute. We do right now raise money in respect of the production of electricity to provide a special price for the citizens of Manitoba.

Now, we would not care, I suppose, to use the provincial taxing revenue to lower the price for people outside Manitoba. I would suggest that that was unlikely, and yet we are in the process of making deals with people in other provinces of Canada, we already have one with the Province of Ontario and the Province of Saskatchewan today in which that situation applies, that we use the provincial taxing power to change the price for Manitoba citizens and that same concession is not extended to the power that we sell to people in the Province of Ontario or the Province of Saskatchewan.

Now, if this act came into force could we still do that? That is a pretty important question and I certainly, doubts are certainly raised in my mind that we might be debarred from doing that kind of thing if this particular legislation comes into effect.

So I have those principal concerns on my mind and perhaps they could be dealt with in due course.

I offer another couple of observations, gratuitous, I admit, with respect to the theory of ownership and the powers of development and concern and management. They are all very well but in practical terms we are leaving out one of the essential controlling factors in the development of a natural resource and that is taxation, and just so long as not only the provincial government but the federal government are free to impose taxes which under the constitution they are, and I am not proposing that that be changed, but to introduce an element of realism into this discussion I can say that if they use those powers in an ill-advised manner they can certainly control on the federal side, in conjunction with provincial tax levies, the production of these natural resources and we see that going on in Saskatchewan today. We see that in southern Saskatchewan where we have a number of wells that are either of small capacity or are concerned with the production of heavy oils and things like that, but a large number of those, and I believe this is a correct statement, but a large number of those have closed down since the new national energy policy came into effect. Why? Because the combined taxation of the two governments makes them uneconomic to keep going.

So if anyone thinks that we are dealing with the whole problem of ownership. development. conservation and management in this way, of course we are not. And I suppose nobody pretends that we are,

But I merely say to the Committee that these difficulties remain completely untouched by what we are doing here now,

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and it makes me feel that the main thrust of the amendment we have before us is more cosmetic than it is practical.

One can only hope it will do some good. But one cannot assert with any confidence that it is going to do very much good.

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

Senator Roblin: May I just ask the law officers of the Crown to tell me what they think about the points i made in respect of the nondiscrimination clause and the control of interprovincial electrical power rivers.

Mr. Strayer: If I may first be permitted to make one slight personal observation, I was very impressed by Senator Robin’s first argument about the need or lack of need for this change to indirect taxation with respect to revenues from resources; because earlier in discussions I made a number of similar arguments myself to the provinces, and in that context it was described as federal bureaucratic arrogance.

Senator Roblin: I am in a position to give you full absolution on that point.

Mr. Strayer: However, provinces like Saskatchewan and others have said they ought to have a freer range of technics for imposing taxes and that is why they felt they needed this change,

Senator Roblin: What we do need is some better method of reconciling and adjusting the taxation policies of the 11 jurisdictions of Canada.

If this body was addressing itself to making some recommendations—I go no farther than recommendations—as to how we could assimilate and harmonize the tax regimes we have in Canada, not only in respect of natural resources but in respect of whatever methods we can devise to stimulate the economy and to keep jobs going and to keep the country developing. That I would be glad to talk about.

Mr. Strayer: On the point raised by Senator Roblin about the effect of proposed Section 92A(1)(c), the paragraph dealing with development, conservation and management of electrical generation facilities, what the effect would be in relation to water management and the use of bodies of water.

It was our view that this did not and should not really change things very much, if at all; that in fact now the provinces have jurisdiction under Section 92(10), the power over local works; they have jurisdiction under Section 92(13) with respect to property and civil rights and under other heads of jurisdiction—Section 92(5) dealing with management and the sale of public lands, whereby they can clearly establish and develop sites and facilities for electrical generation.

There is, of course, a problem as to how that activity relates to the use of the water and the effects on the flow of water as a result of the development of these generation facilities.

In our view, you still have here at present. as you will in future, a kind of meeting place between heads of exclusive provincial jurisdiction and heads of exclusive federal jurisdiction.

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The federal jurisdiction remains with respect to navigation and shipping, with respect to fisheries, peace, order and good government.

We know there is—and has been for a long time—a certain amount of uncertainty as to how to relate these areas of federal jurisdiction and of provincial jurisdiction. To the extent that there is uncertainty it probably continues. But I do not think the situation is prejudiced in any way by this amendment.

Senator Roblin: I ask the learned counsel if he has ever tried navigating on the Winnipeg River to see how far your federal power will take you there?

Mr. Strayer: Well, sir, if the problem exists now, I do not think it is going to be aggravated by the amendment that is being proposed.

Senator Roblin: That is the point. I think you can absolutely give no assurances that what you are saying is correct. You say you do not think it can be aggravated. We will see!

Mr. Strayer: Well, of course, Mr. Chairman whenever you make any change in the constitution, it is possible to argue that it will do something you do not expect. But after careful analysis that was our conclusion.

The other point was as to the effect of the nondiscrimination clause. I think that might be best left for initial comment to the movers of a main amendment, because they might be able to expand on what the intent of the provinces were with respect to the proposal that is incorporated in proposed subsection (2).

Senator Roblin: With great respect, I am not interested in the intent. The world is full of good intentions and we know where they lead.

I am asking you your opinion, sir, as a law officer of the Crown, as to what you think the legal meaning of it is, having to do with the pricing of electrical power which is being exported within the domestic jurisdiction of a province.

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

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

Mr. Epp: My colleague, Mr. Fraser, has raised some very .

serious doubts about the effect of the Broadbent proposal. Senator Roblin has as well regarding the whole area of fisheries.

I know, Mr. Chairman, you are labouring under a rule that all amendments were to be put on the table by 9:30 yesterday morning.

That puts us into extreme difficulty if these problems are in fact valid and we have still to do more checking over the luncheon hour whether they are in fact valid.

If you interpret your ruling so tightly that as these problems develop the party does not have ability to amend relative to the discussion, that would make very difficult procedures for all members of the Committee.

I am asking you, Mr. Chairman, if you could give us an explanation of the ruling as you interpret it, as to whether or

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not it is valid, in view of the fact that we only saw the Broadbent amendment at 6 o’clock last night—nine hours after we had any ability to amend, and there was an embargo by the NDP that we could not see the amendment.

As you will recall, I raised two points of order yesterday asking for the amendment—it was well after the amendments were to be filed: I would like a ruling before we break for lunch from you, Mr. Chairman, on the question of whether or not we still have the ability to move amendments in areas which have come to light in the questioning on a proposal that we had absolutely no ability to amend in View of the deadlines imposed?

The Joint Chairman (Mr. Joyal): Mr. Nystrom, on the same point of order.

Mr. Nystrom: I would like to hear what Mr. Austin’s response is to this; but I would like to encourage you, Mr. Chairman, to be flexible.

I think the questioning of Mr, Fraser covered an area we should take a serious look at. I have not yet made up my mind whether or not it is necessary or should be inserted.

But I would like to take a look at it over the dinner hour. and if indeed we conclude it should go in, we should at least have the flexibility of considering an amendment.

We have run this Committee in a pretty flexible way, and I would urge you that we do so in this case as well.

The Joint Chairman (Mr. Joyal): The honourable Senator Austin.

Senator Austin: I have no objections to amendments which may be proposed within the context of the amendments that are before us and the principles of those amendments, Mr. Chairman.

The Joint Chairman (Mr. Joyal): I see there is consent around the table that after the luncheon break, if needed the honourable John Fraser will so move an amendment and if needed the Chair would be allowed to accept it.

The honourable Jake Epp.

Mr. Epp: I would like to thank my colleagues around the table for their willingness to work in that manner.

I wish to indicate to members that we have not yet made a final determination whether or not the amendment should be moved. We will need the lunch hour to do that, Mr. Chairman.

The Joint Chairman (Mr. Joyal): In relation generally to the amendments that have been tabled with the Clerk and the Chair, I should say on behalf of the honourable Senator Hays that the Chair will certainly allow any honourable members around the table to amend an amendment that has been tabled if so needed, because of previous decisions of this Committee on one section or the other or another part of the proposed resolution.

I think in all fairness we have to be consistent with what we have voted. The Chair does not have any difficulty with that at all.

If there is a need to change something which is new and is not a matter of mere concordance or mere logic with what this

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Committee has accepted, then of course the Chair will seek the consent of honourable members around the table.

But as I have interpreted the co-operation around this table, for such technical questions there has never been any opposition on either side of the Committee, and this Committee and the Chair are grateful to honourable members for such co-operation.

The honourable Senator Austin.

Senator Austin: Mr. Chairman, on the point raised by Mr. Epp, it being close to our lunch hour, I would have, if I had been recognized, commented that I thought Mr. Fraser’s point was taken care of by the “notwithstanding” clause in Section 91. What we have before us is an amendment to Section 92, which is subject to the general powers and the “notwithstanding” clause in Section 91.

Mr. Fraser made an excellent contribution this morning, as did Mr. Waddell, with respect to the fisheries question.

I have some things to say about it after lunch. But I would ask Mr. Epp and his colleagues, including Mr. Fraser, to take a look at that particular juxtaposition of powers and to see whether an amendment is required. I tend to think not, but I do not want to close my mind on it either.

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

Mr. Chrétien: I would just like to invite Mr. Epp to take into account a legal problem that that type of amendment could create in relation to the other powers of the federal government, that when you start to enumerate some it could create a major problem for the other powers of the federal government.

In this area it has never been completely clear anyway, so it will probably remain the same.

But we will look at any other amendments; it has been discussed internally and we have seen a lot of dangers if we were to enumerate the powers—problems for the rest of the powers of the federal administration.

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

I look at the clock and I see it is not the time to adjourn yet, and I still have the honourable Senator Austin to conclude on the proposed government amendment. I understand the honourable John Fraser wants to raise a question at this point.

Mr. Fraser: Mr. Chairman, what I would like to make clear to everybody is that over the noon hour we may have been able to decide definitely on this amendment.

As a consequence we should be able to tell you as soon as we reconvene whether or not we will have the amendment. If at that time Senator Austin wishes to comment on the amendment I do not think we need to take up a great deal of the time of the Committee.

But I think it is an amendment which addresses a very grave problem. I do not know what the feeling of other members of the Committee is at the moment; but I do not wish to go on further now, and I will call it 12:30 pm.

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The Joint Chairman (Mr. Joyal): With the consent of honourable members, it being 12:30 pm. this meeting is adjourned until 3:30 this afternoon.

[Translation]

The meeting is adjourned until 3:30 this afternoon.

[Text]

AFTERNOON SITTING

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

May I invite the honourable members to take their seats so we can resume consideration of a proposed amendment to Clause 51, the proposed resolution.

I would like to remind honourable members that when we adjourned for lunch, we were to expect from honourable John Fraser more advice on the opportunity to receive at this point another subamendment to the main amendment or to the proposal as put through by Mr. Broadbent on behalf of the NDP.

At this point I would like, before I invite honourable members to come back on the proposed subamendment, the one introduced by Mr. Corbin, I would like to ask the honourable John Fraser if he has more to say at this point on the proposed subamendment that he was speaking about this morning.

Honourable John Fraser.

Mr. Fraser: Mr. Chairman, I wonder if I could catch the attention of my friend Mr. Waddell.

An hon. Member: Just do not go skating with him.

Mr. Fraser: Someone is on thin ice anyway, Mr. Chairman. I guess it was inevitable we would get to that.

I had a discussion with Mr. Waddell over the noon hour. It is not likely to strain relations between this country or any other country, but I think it is the disposition of the New Democratic Party not to incorporate my suggested amendment into their amendment.

At the appropriate time, Mr. Chairman. I would move the amendment, notwithstanding that. I know my friend Senator Austin wishes to speak to it, and I am in your hands.

By the way, I should say, Mr. Chairman, I think it is typed now and is probably just about ready for distribution. It is a very short amendment and I do not think that we are having a very great deal of trouble with it.

The Joint Chairman (Mr. Joyal): The Chair has received your amendment and in the context of the over-all proposal, the main one that we are discussing, there is no doubt that it is receivable. In relation to the order and where your subamendment should be put, I would suggest that it should be called after we have dealt with the subamendment as introduced by the government.

So, what I would suggest honourable members to do, would be to invite honourable Senator Austin to conclude on the subamendment as so moved on behalf of the government party, and then, of course, we would proceed with the vote and

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after that I would call you and you might have an opportunity to move your subamendment, and debate would be opened on your subamendment. After we have dealt with your subamendment, I would call the honourable James McGrath’s amendment and we would deal with the subamendment as introduced by Mr. McGrath, then come back on the main amendment as put through on behalf of the NDP Party. In that respect, it will be very easy to go on, so I would like to invite honourable Senator Austin to conclude on the proposed subamendment as so moved on behalf of the government party.

Senator Austin.

Senator Austin: Thank you, Mr. Chairman. I think I will begin by fortifying myself with a sip of Old Veto.

Mr. Chairman, I will begin I think where I left off, commenting on the discussion that took place in this Committee led by Mr. Fraser and responded to by Mr. Waddell, with respect to concerns affecting in particular, the British Columbia fishing interests, fishing industry, and questions of conservation and protection of our ecological system against undue use by commercial interests. This is a long standing problem with competing uses in the province of British Columbia and I do not think it evokes any partisanship at this particular table. I think that Mr. Fraser, Mr. Waddell and I agree amongst the three of us that the need to ensure a fair balance in their competing uses of our resources in British Columbia and particularly the preservation of our fisheries, is a matter of very high priority indeed.

The issue that Mr. Fraser has put before us is whether in any way the Broadbent amendment which is being placed before this Committee last evening could have a deleterious effect on the constitutional power of the federal government to control the fisheries interests in British Columbia. I mentioned just before the lunch hour that I believe that the amendment which Mr. Broadbent has before us now is always subject to the notwithstanding clause in Section 91 which in effect, I will not read it, but in effect it says that notwithstanding any of the provisions of Section 92, and this is an amendment, the Broadbent amendment is an amendment to Section 92, the specific heads of power of the federal government under Section 9l which I say includes fisheries, will prevail. Therefore, in my view, Mr. Chairman, any further amendments placed in Section 92 would be unnecessary. I am prepared to look at Mr. Fraser’s amendments but I do not think an amendment in the context of Section 92 would really be effective.

Just before the end of our morning session, the Minister also intervened and made the remark that he would be concerned that if there were a special reservation in Section 92 for one particular concern, there might be a difficulty in statutory interpretation with respect to other things that are not made the subject of a special amendment and that too concerns me, as a lawyer. Mr. Fraser, who is also a lawyer, may differ on that point but at least that is where I come down at the moment.

With respect to Mr. Hnatyshyn’s remarks of this morning, I would like to comment. He described ownership and he spoke I think quite well, about the concept of ownership. He said

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“ownership means unusual control over a particular commodity”.

Mr. Hnatyshyn: Usual control.

Senator Austin: You mean “ownership means usual control over a particular commodity”.

The point I wanted to make with respect to your argument this morning, Mr. Hnatyshyn, and I think you would concede this, that ownership in any sense that we know it is not an unlimited right to do whatever you wish on your property. In municipal law, for example, the fact that I own a property does not entitle me to make a nuisance of the use of that property to my neighbors. It must be consistent with the interests of the community as a whole.

In the context of the ownership of resources, that ownership must be consistent with the needs and uses and interests of the community as a whole, and if you accept that, then that is the end of my comment on what you said this morning except to say that I do believe that the governments policies with respect to the energy program are in that sense consistent with a rational view of the provinces’ ownership entitlement.

With respect to the Broadbent amendment, I have a concern that has not been raised in the Committee and it is one which makes my brow furrow, but I must admit at the same time that I have overcome my hesitancy. It is proposed Section 92A(1)(b)

Including laws in relation to the rate of primary production therefrom;

We are talking about the development, conservation and management of nonrenewable and natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom;

I believe that that is a real concession to provincial power. I believe that is a concession that has not been so unbiguously made clear in the past. It is a concession that is added to the right of the provinces now, if this amendment becomes law, to participate in indirect taxation and thirdly, to regulate interprovincial trade under the paramountcy of the federal Parliament.

Frankly, the primary sector in this country plays such a large part in the health of our economy that the rate of development, the rate of private sector production, the rate on which we could bring our energy resources, for example, into the Canadian economy in order to ensure that there are no security of supply gaps, can be very seriously affected by the activities of a province.

The unwillingness of a province to use normal commercial standards, for example, to employ development of its resources, can leave Canada with scarcities and shortages and that can be very costly to the rest of the nation.

So I would say to you that in allowing this particular control to the provinces in proposed Section 92A(1) we are certainly as a national Parliament recognizing the transfer of an important power and, as far as I am concerned, expecting the

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provinces to act in a completely national sense in the discharge of the power that we may now confer upon them. It is perfectly possible, and my ultimate fear is that a rather wealthy province with surplus cash could find it to its disadvantage to bring on more cash flow, more streams of wealth, and decide to retard the rate of industrial development or resource development in order not to be flooded with cash that is hard to place in the market, a situation quite analogous to some of the Arab oil countries at this particular time.

It may be very much in the interests of the province to do that and yet not in the national interest to do it; and I would hope and I am sure all members of this Committee expect that provincial governments and provincial legislatures will bear this power with an enormous sensititivy to their responsibilities to the rest of the country.

That is the clause that most concerns me, but I am not going to press for its change in view of the arrangements that are in place and in view of my great support for the package as a whole.

I want to talk for a moment about the international trade issue which Mr. Broadbent discussed last night and which Mr. Nystrom discussed with us this morning. Mr. Broadbent’s position, and Mr. Nystrom’s not surprisingly was quite close to it, was to the effect that this additional power which they are recommending, the extension of a provincial jurisdiction into the regulation of international trade, is really a concomitant of provincial resource development. It is a logical progression of that development and I suppose in a form of logic it is, but there is a much stronger logic and a much stronger national interest in my view and that is that Canada speak in all matters of international trade, in all economic matters of international policy and international relations generally, with one voice; and as I pleaded for provincial flexibility a moment ago with respect to proposed Section 92A(1)(b), I would also say that I fully expect by the same test that any federal government would be sensitive not to stifle the legitimate interests of a province with respect to its resources in the international field and to encourage them; and I believe that has been the pattern of federal governments for many years, of whatever political stripe.

However, it is important that the safeguards of the residual power in terms of international trade remain with the national government.

Mr. Chairman, I want to speak for a few moments about Western Canada. I want to talk about my part of the country and I want to explain to the rest of Canada my view and I believe the view of many western Canadians of the problems that we are now dealing with in terms of tensions between Western Canada and other parts of Canada.

Western Canada’s image of itself, of its opportunities to play a responsible and effective role in a strong Canadian confederation depends very much on its ability to utilize its patrimony; not just its resources, which are a part of its patrimony, but the very essence of its nature, its wellbeing, to grow by the development of those resources and by the de-

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velopment of the resourcefulness of Western Canadians to be strong on their own bottom, be strong in themselves, and therefore to be strong for Canada. So much of that current aspiration in Western Canada is based on an effective economic utilization of the resource base of Western Canada and I believe for that reason that the amendment proposed by the NDP here with the subamendment proposed by the government, ought to be accepted. The NDP amendment is truly sensitive to this deeply held feeling in Western Canada that resource development should also not only be under the general national jurisdiction of the federal government, but should also in a more managerial sense, he in the control of the provinces for the wellbeing of the people of those provinces.

I would like to give you a short Western Canadian history, and I promise it will be short, but it is deeply impressed in the subject matter that is before us now.

Sir John A. MacDonald, when he was in opposition, rose in the House of Commons on March 7, 1978—I am sorry, did I say “1978”, 1878 and proposed the adoption of a national policy for Canada.

Mr. Epp: He lives forever.

Senator Austin: He is still here, as is Mackenzie King. When the Conservatives were returned to power that national policy for Canada became the cornerstone of their policy endeavours and it had a profound effect on the West. That national policy included the imposition of a protective tariff to encourage manufacturing activity but its real dimensions were much broader. It foresaw the colonization of the prairies and the extension of trade by massive transportation undertakings, Atlantic to Pacific.

Further that national policy incorporated the view that the western hinterland would provide the raw resources to nurture the industrial centre and serve an expanding market to break the stagnation then being experienced in Ontario and Quebec. To put it bluntly, and Sir John A. MacDonald was always blunt, he said and I quote:

The Dominion had purchased the West and was entitled to the profits of its exploitation.

The national policy was carried forward with a drive to populate the west. That drive was a spectacular success. Between 1895 and 1930, 5 million immigrants settled in the west. They came from all parts of the world, stamping on the west an indelible multicultural character and that settlement of the prairies, as I have said, was a vital objective of the national policy. The way in which it was pursued is one of the most important antecedents of western alienation, because many of those settlers were attracted by what I would call flagrant advertising about the opportunities in Canada.

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They were told what a rosy country it would be and how easy it would be to make their way in Western Canada, and hundreds of thousands found to their dismay, that it was a hard life, a difficult life. My own family was a part of that pioneer movement and I can speak from stories of grandfathers and fathers. Many left Canada after a very short stay and went to the United States. More than 2 million of those original settlers left us after a very short stay.

Mr. Chairman, I want to speak still about the antecedents in Western Canada, because they are important to what is happening now. They are important to this amendment; they are important to what is being done by this Joint Committee. I want to tell you that the first self-government in Western Canada was not won through rational negotiation. It was won against the wishes of Central Canada, and I am talking about, in result, the Manitoba Act of 1870; I am talking about the Riel rebellion; I am talking about that colonial attitude that was expressed by Sir John A. MacDonald. It was not limited only to the Conservative Party of that day, I have to acknowledge that out of fairness. That province originally was accorded a second class status in the Legislation. It was characterized by the retention of its Crown Lands:

For the purposes of the Dominion

And it was a struggle for that province of Manitoba to be received as an equal juridically in Canada.

The same was true of Alberta and Saskatchewan, and I do not think that people here understand just what bitterness existed between 1905, when Alberta and Saskatchewan became provinces, and 1930 when the Privy Council finally recognized the entitlement of Alberta and Saskatchewan to control their resources like those other provinces.

Well, the answer to the question is: it had two parents; it had the government that initiated the reference, a Liberal government; and the government that changed the legislation, a Conservative government. However, it was not until 1930 that Section I09 of the British North America Act, the control of resources, was extended to all the prairie provinces, and even then there was a sting because the right to control free hold land was not transferred to the provinces.

And I want to talk about the terms of British Columbia’s entry into Confederation, because lotus land was hardly happy for many, many years over the lack of completion by the federal government of the day of its promise with respect to transportation in the extension of the railway, and British Columbia for many years, and even to this day, has been nervous about its association with central Canada. And I would like to express again the continuing attitude of Central Canada through some words of Sir John A. MacDonald who is quoted as having confessed in private correspondence to a senior British Cabinet Minister that . . .

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An hon. Member: Order.

An hon. Member: Careful.

Mr. Epp: Has this been clearly by Mr. Waddell?

Senator Austin: I will tell you, you cannot stop me and I want you to listen, particularly you westerners who are interrupting me, I want you to listen to this, MacDonald says:

We have as much interest in British Columbia as in Australia and no more.

In light of this history, members of the Committee, I think it is hardly surprising that political affinities in the west are imbued with a strong sense of rebelliousness and independence.

Now, Mr. Chairman, I want to come up current history. I will not involve you in a long story about what took place in the intervening period, but I want to say that I participated in and thought very, very important the western economic opportunities conference in Calgary, WEOC as it is known, which took place at Mount Royal College. It was a sincere attempt, in my view, by the federal government to address itself to the problems of western Canada and I believe that the federal process has retained its sensitivity and that that sensitivity is, inter alia, a part of the resolution the government is prepared to accept today.

And I would recommend to those of you who really care about the subject a review of Premier Bennett’s forward to the report of the western Premiers’ task force on constitutional trends. This is 1977, it is a fascinating portrayal of the colonial role assigned at the West by Central Canadian policies.

I would remind you also that Premier Blakeney came to this Committee and made some very interesting points about the western regional identity. He talked about the dependence of the provincial economies on their natural resources and he said:

Resources represent our best hope of providing long term economic stability and diversity, of ironing out the booms and busts in our economy.

He talked about a critical dependence on transportation and he talked about a deep rooted dissatisfaction that the federal government seemed empowered to legislate without providing the West with an accountable or meaningful vehicle for its views.

On that last score, of course, I believe, and I have spoken here before about the need to ensure that check and balance by reform of the Senate, and by change in the proportion of Senators in that particular Chamber, and I assure you Old Veto would be long gone by the time we get to that particular question. And I have Senator’s Roblin’s assurance that that is the case as well.

I want to talk to you very briefly about the tyranny of the majority which is an image in Western Canada, and I want to quote, I think an exceptionally good description of it which appears in a report written by Ralph Hedlin Associates entitled Western Canada in Confederation. And he says:

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Whether any or all of these concerns are rooted in fact is not really the point. The hard reality is that a significant proportion of the people in Western Canada feel they have never had equality with the large central provinces. They do not trust the politicians and officials in Ottawa. They do not think the eastern politicans care about the welfare of the West but concentrate their interest and attention on pleasing the people of the constituencies in Ontario and Quebec.

Well, those are perceptions. I share Mr. Hedlin’s view that there is much more in the perception than there is in the reality. I think it is vital that the federal process adjusts itself to these legitimate concerns in Western Canada, and I believe absolutely that the Prime Minister, the Minister of Justice by his performance here, have shown that degree of sensitivity in the government of today and I am an enthusiastic supporter of their approach to Western Canadian issues.

I believe, in conclusion, Mr. Chairman, that the amendment by the New Democratic Party, taken with the subamendment placed here before the government is a solid advance on behalf of western Canadian interests and will do much to alleviate the economic concerns regarding the mangement of resources by Western Canadians in Western Canada. We have yet in stage 2 of the constitution to address the concerns about the tyranny of the majority, to address the concerns which will allow western Canadians to believe that in the federal process, in the market place of issues and ideas, which is our national Parliament, they, too, can have some of the levers in the game.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): I will certainly keep the name of the honourable members who want to speak, honourable Jake Epp, honourable Senator Roblin, honourable John Fraser, but at this point the Chair has informed honourable members that it was supposed to be the concluding intervention on the government’s amendment to the proposed motion as put through on behalf of the New Democratic Party and I understand that there are at least three other amendments that should be dealt with.

The second amendment that will be so moved by honourable John Fraser, another amendment that has been moved on behalf of honourable James McGrath, and there is of course the main amendment as moved by Mr. Broadbent on behalf of the New Democratic Party.

What I would intend to do is to keep the names of those honourable members but at this point, at least dispose of one amendment so that we can open the debate for the amendment of Mr. Fraser, because at this point the Chair has at least three amendments on the table and I understand there has been reference to another amendment, the amendment that honourable John Fraser has in mind at this point, and I think it would not be appropriate to open the debate on four amendments at the same time.

So if honourable members agree, the Chair will call the vote on the government amendment, dispose of that amendment and after that invite the honourable John Fraser to move his amendment.

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Honourable Jake Epp.

Mr. Epp: Mr. Chairman. that is acceptable to us but we would like to have the opportunity just to place the parties position on the record in very brief words regarding the government amendment.

I will hold my concluding comments, Mr. Chairman. and my reply to Senator Austin at the time you are ready to complete Mr. McGrath’s amendment, I will hold it until then but I do think if we are going to vote on amendment G-44.1 it is important for me just to put on a view, Mr. Chairman, regarding the matter of whether or not the provinces should have the right to indirect taxation and international trade, that aspect of the Broadbent amendment would be removed by the government amendment, and namely that the government amendment would restrict the indirect taxation on interprovincial trade.

I want to say on behalf of our party that we are in agreement with the government’s position, and the reason is simple.

Our party has for years. Mr. Chairman, been stating that there has to be a different relationship between the federal government and the provinces. I intend to speak a little longer on that matter, in fact, in reply to Senator Austin regarding exactly that position, but it is our strong opinion that the central government must also have the tools whereby it can function on the national level, and also on the international level.

That being the case, Mr. Chairman, even though I think when one would look at the discussion of today that one might even argue that it was neutral, the clause might be neutral to a degree, I do «believe that the very inclusion of a capacity in international trade on the part of the provinces derogates and negates the federal balance, at least in perception if not in actual fact, and I think around the table many of us would have some difficulties if it does not state so in actual fact; but in perception I would have no doubt that it would do just that, namely that the provinces now would have a foot in the door, so to speak, at least in the larger concept of international relations and I believe that has to be a national perspective, it has to be done by a national government, by a central government rather than the provinces.

It is for those very limited reasons, Mr. Chairman, that we cannot support the amendment that we will support the government amendment and obviously change the thrust of the New Democratic Party Clause.

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

Mr. Nystrom, on that very point, of course.

Mr. Nystrom: I spoke a bit earlier this morning on just how important international trade is to a number of provinces. We have had the important central Canada Potash case in Saskatchewan and we are not asking here for something which is going to interfere with international treaties or anything of that nature at all, we are just talking about international trade

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as far as it pertains to a province developing that industry at home in the province.

I do not want to repeat any of those arguments, Mr. Chairman, but I would like to have a recorded vote on this if we could.

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

Subamendment agreed to: yeas, 21; nays, 2.

The Joint Chairman (Mr. Joyal): So I would like to invite the honourable John Fraser, but before I do I would like just to draw the attention of the honourable members to the following.

The Chair has listened carefully to all the interventions around this table and has allowed all honourable members to put forward their views on a very comprehensive basis; but at this point I think that the Chair will invite all honourable members from all sides of the table to try and keep their intervention on the very content of the proposed amendment and I think that all honourable members have been very co-operative this morning to give all the time needed for each speaker to put forward his views and I think at this point the Chair would like to remind honourable members we have adopted the procedure to make our work easier and I think that at this point it is the responsibility of the Chair to draw the attention of all honourable members to that very point.

So I would like to invite the honourable John Fraser to move the amendment that he is intending to.

Mr. Fraser: Mr. Chairman, I understand the amendment is ready for distribution.

The Joint Chairman (Mr. Joyal): Yes, the Chair has made sure that your amendment has been translated and been printed so that our clerks will circulate to all honourable members a copy of your proposed amendment.

Mr. Fraser: With your permission. Mr. Chairman, I will proceed.

I am going to read the amendment.

I move that the amendment be amended by adding to proposed Section 92A(1) the following new paragraph:

(d) Nothing in Section 92A derogates from the powers of the Parliament of Canada relating to fisheries, navigation and shipping.

(d) Rien dans l’article 92A ne doit être interprété comme constituant une derogation aux pouvoirs du Parlement du Canada relatif aux pécheries, à la navigation et au transport maritime.

Now, Mr. Chairman and colleagues, I spoke at length about this matter this morning and I do not want to repeat my entire intervention, and honourable members have had the benefit of hearing Senator Austin comment a few minutes ago, but basically this is what it is about:

In the main amendment, the New Democratic Party amendment, when you look carefully at what it is doing relative to the generation and production of electrical energy, the effect of the amendment is to say this, it is to say that in each

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province the legislatures may legislate exclusively with respect to the development, conservation and management of hydro electric sites and dams. Now, that is the effect of it.

Now, my concern, Mr. Chairman, you said words either mean something or they do not, and so far as I have been able to tell from the debate so far, nobody has told me, no one in their intervention has indicated with respect to the part of this section that I am referring to, whether this is really a new power that is being given to the provinces or whether the provinces already have it and it is only a statement of a power that the province already has; but if it is a new power, if it is a greater, broader power, then it had to-come from somewhere.

Certainly when you keep in mind the fact that under the British North America Act there are two levels of power, if it is coming from somewhere, it is coming from the, it could be coming from the federal power, and to put it explicitly, Mr. Chairman, I am concerned that if It is not made clear that this exclusive power to make laws respecting the development, conservation and management of hydro electric power, which means in British Columbia clams on our great rivers, if it is not made clear that that does not derogate from the proper power of the federal government under Section 91, under fisheries and navigation and shipping, that we may be limiting that power and we may very well be in a position where in the years to come, as the pressure builds up in British Columbia to put more dams on more rivers, that there will be a court that is going to have to be looking at this wording and saying: what do those words mean? They have got to mean something.

And Senator Austin has, I think very correctly, put the other side of the argument, that is that if you put too much down you create confusion as to what powers are not affected in other parts of the constitution. That is a legitimate comment.

However, it is also very much a lawyers’ comment, and it is a lawyer’s comment because the lawyers have to deal with the statute, they have to deal with the words; but against that proposition, against the possibility of some difficulty being created is at least this, that if you make it clear what we are doing in this amendment by spelling out the fact that you are not taking away from the federal government its fisheries and navigation and shipping powers, then you are not going to have a problem years from now or a few years from now, which is much more likely, of having to take this case through the court to find out whether or not that power, which I think is so imperative to the protection of the fishery in British Columbia, has been diminished.

Now, I think that makes the point and I think that the other side of that argument was put forward quite lucidly by my friend, Senator Austin, and I say that you have to balance the two arguments given the reality of British Columbia, given the fact that if it was not for the federal power under fisheries I have no doubt that we would have a major dam on the Fraser River; I have no doubt that Alcan’s projected additional works would be well under way; and I have no doubt that there would be no stopping certain people who look to power alone and who, unlike my friend Senator Austin, do not understand that

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there has to be a balance but who focus on one thing only and that is power, and often on forecasted power that is wildly inaccurate, and stemming from a philosophy not of conservation but just of finding more and more power, no matter how badly we misuse the power we develop.

I would urge honourable members to realize that it is relatively easy now to ensure the continuation of that federal power, and as a Westerner, a British Columbian, and as one who has been quick to defend provincial interests, as my friend Mr. Austin did in his eloquent address a few minutes ago, I have also always defended the necessity of the federal power to be strong in the places where it ought to be strong.

Now, I do not think I need add anything further to what I have already said, except to finish on this note: this is not an academic discussion we are having. This is against the backdrop of events which are taking place in my province which are bound to put pressure on the fisheries.

Because that fishery is a Canadian resource and does not just belong to British Columbia by any means and is to be shared by the whole nation, I ask honourable members to give very serious consideration to allowing this amendment to go through; because if it goes through, then the highly paid lawyers who act for the interests that want to put more and more dams on our rivers will at least have one less argument to use. They have no trouble getting many arguments on their own; but I would regret it if we handed them one.

I would just point out that it was only some months ago when Alcan absolutely refused to accept a fisheries order to put enough water in the Natchako River safely bring the salmon in for spawning.

They lost that case in the lower court and it has not gone any further.

But if anyone thinks that this is an argument just in an academic sense, please do not be taken in by that error; because the argument I am putting forward here is against the backdrop of constant pressure against our fisheries.

Thank you.

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

The honourable the Minister of Justice, followed by Mr. Waddell.

Mr. Chrétien: Mr. Chairman, I do not intend to be long on that, but I think I have to state what is the position of the government on this proposed amendment.

First of all, I think the amendment is not necessary; that the power referred to in Mr. Fraser’s amendment is clearly the power of the federal government in relation to fisheries, navigation and shipping.

If you were to single out three powers like that in Section 91 and put in a different clause, there is a great danger that the court will put these three powers in a different category than

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the other federal power under Section 91 and seek a legal interpretation as to why it is we have done it.

In Section 91 it is clear that fisheries, navigation and shipping fall within the federal power.

We are satisfied that the amendment proposed Section 92A(1) will not affect those powers.

So, we think it is not needed, and it is dangerous; we are satisfied that the proposed Section 92A(1) as proposed in the amendment of Mr. Broadbent and the NDP, and which was the amendment I proposed to the provinces myself during the summer, gives adequate protection to these three powers that Mr. Fraser would like to protect. I would like to compliment him, because his preoccupation is very much along the lines of mine; and I am glad to see that he can be numbered among those who do not feel that all the virtues are to devolve absolutely to the provinces without any check.

His argument is well taken when the states that we should not make any move which would jeopardize the necessary federal power in those fields. But we do not need this amendment to ensure that.

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

Mr. Waddell.

Mr. Waddell: Thank you, Mr. Chairman.

This is a tough one, Mr. Chairman. I will try to be as objective as possible in dealing with it, considering that it is basically an amendment to our motion.

I say this to Mr. Fraser, that this is going to be a bit convoluted, but I will try my best.

The reason we do not have any dams on the Fraser River is basically, I think, that our people in British Columbia will not permit that. No matter what the laws are—the laws certainly help conservationists to a great extent, but I think that is the real reason, and not what is said in this amendment or in our motion.

I agree with the Minister to this extent, and only to this extent, that it is not necessary—the phrase you have introduced—in the sense, it is a bit academic, that fisheries navigation and shipping are covered in Section 91.

The Minister then says, “Well, if you single out these three particular areas by putting in Mr. Fraser’s amendment, then that puts a special emphasis on these three matters and it hurts the other matters in Section 9t and is therefore a danger,” if I understand his argument.

I see the argument, but only to a limited extent. It seems to me it is a kind of bureaucratic argument. I cannot completely accept that argument.

So, I have to look at Mr. Fraser’s suggestion; and he said, basically-wand I would perhaps make a little stronger argument than the one he has made—if you look at the context of the amendment, the context of the resolution, proposed Section 92A(1) states that in each province a legislature may exclu-

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sively make laws in relation to development, conservation and management of sites and facilities in the province for the generation and production of electrical energy. So, there is an argument to be made, it seems to me, Mr. Chairman, that that is a rather special context in the sense that that is dealing with the electrical facilities. There is a problem with dams; that if we err, let us err on the side of protecting the dams.

We have spoken of the great love we all have—the three of us here from British Columbia—for British Columbia, and therefore we are coming down on the side of accepting Mr. Fraser’s amendment and throwing in that additional protection.

It may mean nothing. I personally think that it probably does not; but it may mean something, and, therefore, objectively we are going to vote in favour of his amendment.

Some hon. Members: Hear, hear!

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

Mr. Munro.

Mr. Munro: Mr. Chairman, thank you.

I would like to speak in support of the proposed amendment to the amendment, and to ask the Minister if he can reconcile for me, at any rate, the use of the word ”exclusively” at the beginning of the NDP amendment, and his suggestion that there is a federal paramountcy with respect to fishing, navigation and shipping.

Surely, that is just going to be fodder for lawyers to argue the use of “exclusively” in one place and paramountcy in another.

I, myself, feel it is absolutely unnecessary to have the addition that has been put in by Mr. Fraser in order to make it abundantly clear that there is a paramountcy for the federal authority where there could be a conflict.

“Exclusive” and “paramountcy” are so close—and they would be close in this context—that there could be litigation lasting years, Will the Minister care to comment?

Mr. Chrétien: I would just like to repeat that Section 9l is clear, and that fisheries, navigation and shipping come under federal jurisdiction. I see no need for saying that Section 92(2) does not affect those that are very clear; I do think that it just could create problems, because what about the other powers that you have in Section 91? Are we to put them in a special category? Section 91 is federal power. There is no difficulty. There is no difficulty in interpreting what “fisheries” means. There is no difficulty in interpreting what “navigation” or what “shipping” means.

So we do not think that we should do what is suggested to be on the side of the angels. It is clear.

We know it is clear, and the matter is complicated enough, and my responsibility, as Minister of Justice of Canada, is to make sure that when it is clear it will remain clear and not to create any doubts.

An hon. Member: You are the judge!

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Mr. Chrétien: On the technical grounds, perhaps I could ask Mr. Strayer to give you some explanation on the relationships between Sections 91 and proposed Section 92A.

Mr. Strayer: Mr. Chairman, if I might say a word on this, this was carefully discussed at many meetings with the provinces.

The place in the constitution at which any resources amendment ought to be put was carefully considered. The amendment as drafted here puts these provisions in proposed 92A(1) in the same position, we believe, as other things which are in Section 92 of the constitution.

The matters referred to in proposed 92A(1), as Mr. Munro points out, are described as exclusive powers of the provincial legislatures just as the matters in Section 92 are now described as exclusive powers of the provinces.

There is a well recognized relationship between the exclusive powers of parliament in Section 91 and the exclusive powers of the legislature in Section 92.

Part of that relationship is that where there is a law which is valid under Section 91, a federal law, and there is a provincial law which is valid under Section 92 and those two laws conflict in some way, the federal law prevails. That is the more common application of the concept of paramountcy.

Now, it is our belief that that relationship which has existed between Sections 91 and 92 will also exist between Section 91 and proposed Section 92A(1). That means any laws made under Section 91, if they come into conflict with the powers under proposed Section 92A(1) will prevail over those provincial laws made under proposed Section 92A(1) to the extent that there is a conflict.

One of the problems of putting in a special rule, as is proposed in the subamendment with respect to protecting the federal power over fisheries, navigation and shipping, is that there are other powers in Section 91 which, I am sure, members of the Committee would also want to protect; for example, the criminal law power. I am sure Mr. Waddell would want to protect the criminal law power, for example, with respect to dealing with pollution.

I am sure that members of the Committee would want to protect the power of parliament with respect to Indians, so that Parliament in legislating for Indians and lands reserved for Indians could, if necessary, legislate in a way which might be in conflict with some provincial law over the management of resources.

Again, there is the federal power with respect to peace, order and good government, which is used for water management or has a potential for use for water management and the management of water quality.

These are all matters which are within Section 91 which we believe enjoy a paramountcy vis-à-vis Section 92 and would enjoy a similar paramountcy vis-à-vis proposed Section 92A(1).

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If one started to put in a special rule that only certain things in Section 91 should enjoy that paramountcy, it would, with the greatest respect to the suggestion that this is only a bureaucratic notion, create the possibility of a court saying, “Well since you have made a special rule for fisheries and navigation, the implication must be that other things, such as the criminal law and laws with respect to Indians are not to be paramount over laws passed under proposed Section 92A(1).”

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

The Joint Chairman (Mr. Joyal): The honourable Ray Hnatyshyn on a point of order.

Mr. Hnatyshyn: Mr. Chairman, I have listened with great interest to Mr. Strayer’s dissertation. It just occurred to me, in case anybody doubts my credentials on this Committee, that I bought his constitutional law notes in second year law. I just wanted to put that on record in case anybody questions my ability to analyze his answer.

An hon. Member: Did you pass?

An hon. Member: How many years, Ray?

The Joint Chairman (Mr. Joyal): I see honourable members are ready for the question.

A recorded vote is requested.

Subamendment negatived: yeas, 9; nays, 14.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to take the subamendment as moved on behalf of the honourable James McGrath and on that subamendment I would like to invite the honourable Jake Epp.

Mr. Epp: Mr. Chairman, I would like to ask whether you have a number of speakers yet on the main motion?

The Joint Chairman (Mr. Joyal): Not on the main motion, no. We are dealing with the subamendment.

Mr. Epp: Why I ask is this. Is it your preference that I just respond to the subamendment now and hold the summation for the main motion?

The Joint Chairman (Mr. Joyal): Well, I have the honourable Senator Roblin and the honourable Ray Hnatyshyn.

Mr. Epp: That being the case, Mr. Chairman, I will only direct my remarks to Mr. McGrath’s amendment.

May I speak to the amendment, then?

The Joint Chairman (Mr. Joyal): Yes.

Mr. Epp: Mr. Chairman, I would like just to sum up for the amendment moved by the honourable James McGrath and to indicate to members that the reason I am doing it is that Mr. McGrath could not be present today; he had to leave for Montreal to attend the funeral of his father-in-law, otherwise he would be here to give the concluding remarks on his amendment and indicate his strong support for it.

Mr. Chairman, the off-shore question has been one that has not only been dealt with in this country in a manner in which the power over resources should be dealt with, but it has gone even further into long discussions and international conferences known as the law of the sea.

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The matter we are dealing with, while related only in the Canadian context, is nevertheless a very complicated matter; and just as many of us feel that northern Canada will be the area of Canada’s future and a breakthrough not only in development but in methods which to this day have not been discovered, but that there will be very rapid development, so, also, many of us believe the sea and the seabed will also find development and rapid growth such as most of us cannot realize today.

Mr. Chairman, the essence of the motion moved by Mr. McGrath is that the Maritime provinces—Atlantic Canada— should have the same rights for growth as that given to the other provinces.

At the time the boundaries of the other provinces were extended, for example, such as in 1912, that was not possible for Atlantic Canada and the only area of growth for Atlantic Canada that is left now is the seabed, the sea and the seabed.

Mr. Chairman, it has been stated a number of times during the summer months by the Premiers from Atlantic Canada that what they were asking for was not a special deal, they were not asking for a handout, but they were asking for what they believed to be rightfully theirs, and also what they where asking for was the right, the economic right to become have areas, move away from the have-not provinces that so beset many of the residents of Atlantic Canada and that, as they would get the development that they now saw possible, that they would be able to not ask of the rest of Canada for equalization payments but rather be contributors too in terms of equalization payments to the Canadian whole.

That is the basic argument of the offshore question.

Mr. Chairman, I fully admit that this question has not been adequately debated either with the Federal Government or the provinces but I do know that through our method and our suggestion and the motions that we have moved, namely that after passage in this Committee that this matter would be referred back to the Premiers for final debate and discussion is one which protects, I believe, not only members of this Committee but also the integrity of the message that we have proposed in the past.

Mr. Chairman, I just want to conclude with one statement which appeared as an editorial in the Halifax Chronicle Herald on October 4, and I quote:

The Maritime claim of today is fair and simple. It asks that it be compensated for earlier oversight. It seeks formal acceptance from other partners in Confederation of the right of the Maritimes to consider as theirs that undersea land which is a natural extension of the property above sea level.

It adds that

The resources in that new territory be the property of the Maritime Provinces in the same sense that resources in formal federal lands now belong to the Central and Western provinces.

Mr. Chairman, those words. I believe, are self-explanatory.

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I notice a number of members on the Liberal side sitting with us today who come from Atlantic Canada. I am sure this amendment will also find acceptance from them.

Thank you.

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

Honourable Senator Roblin.

Senator Roblin: Mr. Chairman, I did not intend to ask for permission to speak on this matter; I would like to be called when the next witness is disposed of.

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

Honourable Ray Hnatyshyn.

Mr. Hnatyshyn: I am in the same position as Senator Roblin. I had wanted to speak on the general proposition.

The Joint Chairman (Mr. Joyal): So I understand that I have honourable Senator Petten who would like to ask a question.

Honourable Senator Petten.

Senator Petten: Thank you, Mr. Chairman.

No, I do not want to ask a question, What I would like to put on the record is the reason I will be voting against this amendment.

While I do not disagree with many of the items in the amendment and I agree with and share the same aspirations that my fellow Newfoundlanders have for our province, what I disagree with is the methods used to obtain these ends, the inflexibility; and I say to both parties, federal and provincial, let us sit down and reason together and I am sure we can come to a satisfactory solution, for the benefit of all.

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

Mr. Nystrom: Just very briefly, I want to make the position of our party very clear on the offshore.

We believe that the offshore resources should be treated the same as the onshore resources and, for that reason, we support the amendment by Mr. McGrath. There are perhaps some discrepancies in the writing of this amendment with the amendment that we moved, but if the government is inclined to make a move on the offshore, then I would be willing to stand it for a while while they clear up some of the discrepancies between the two approaches.

I believe that they should be treating them both the same. It is very important that the coastal provinces have some claims of the offshore. In the case of Newfoundland in particular, we have heard that articulated now for quite a while, and I feel that in the constitutional package it is best to have as much of a regional balance as possible.

It is an issue that has to be addressed; it is an important issue to the coastal provinces. I just want to make it very clear that our party thinks that the federal government should be moving on it, it should move on it at this time and, if they do

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not like Mr. McGrath’s amendment, let us table it for a while, take a look at it and see if we can come up with something that is acceptable; if not, we will vote for Mr. McGrath’s amendment as it is and if it is voted down then I would hope, Mr. Chairman, that this would be one of the items that would be on the agenda for round two as soon as possible; it is very, very important.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Nystrom. Mr. Munro, followed by monsieur Maurice Dionne.

Mr. Munro.

Mr. Munro: Thank you, Mr. Chairman.

I am entering this debate because of the notion, the concept of the entry of Newfoundland into Canada.

My recollection of the occurrence is that two minutes before the entry into Canada, there was a reversion to an earlier status by the then colony; three minutes, it was an administered area; two minutes before the proclamation it returned to dominion status and entered Canada as a full-fledged dominion bringing with it powers and the appurtenances, and territory that would now, had it remained a dominion, be claimed by Newfoundland as a 200 hundred mile limit or beyond, under the provisions of the Law of the Sea, which is in the process of being negotiated at the present time.

Therefore, it was not just from low water or high water that the dominion became a province. The dominion brought with it the plate on which it rests, its continental shelf, if you like. That is what entered Canada at that time. That is what is being claimed by Newfoundland, quite a different status from any other province or territory entering the dominion of Canada.

So, I submit that the claims that are being made, aside from the fact that there is this desire not to remain forever with the begging bowl or at the receiving end of equalization payments but to be able to stand along with the other “have” provinces, as they have come to be called, and share their resources with the rest of Canada. That is what motivates the urge of Newfoundlanders today. Their historical claim to it, I think. is indisputable; and that is the principle that underlies the amendment proposed by Mr. McGrath.

In addition to the plate on which Newfoundland rests, there are, of course, the other resources that are mentioned in the first part of proposed Section 92A(2) concerning the production of energy from the water’s currents and tides. These are also part, within reach from the shore, these too entered the Dominion of Canada when one dominion agreed. through a referendum, to pass in its lot with another dominion, and I think that in all fairness to that dominion which forswore its status as a dominion to become a province, we should recognize that and vote for this amendment.

Thank you, Mr. Chairman.

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

Monsieur Maurice Dionne.

Mr. Dionne: Thank you, Mr. Chairman.

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If I may go back briefly to the remarks of Senator Austin, a little while ago he quoted Sir John A. MacDonald as having said something to the effect that the dominion bought the West and he could have added “and sold the East”.

I want to remark briefly on this amendment because I want to know, for instance, where are the lines to be drawn? What share of the resources of the sea, the nonrenewable resources of the sea are going to be allotted to each of the four Atlantic provinces, and to Quebec?

The case of Newfoundland may or may not be different than the case of the other four provinces that border the Atlantic. That I think is a question that should be resolved by the Supreme Court of Canada. It is important I think here to note that the Government of Canada and the governments of the three Maritime provinces had at one point come to an agreement on the sharing of the offshore resources. Newfoundland did not agree to that at that time but I believe such an agreement is possible, and should be worked out.

I remind members of this Committee that the shores of all the Atlantic provinces and part of Quebec are washed by the same tides and again I ask, where do we draw the line?

Are New Brunswick and Prince Edward Island for instance, to be relegated to perpetual poverty from the lack of their access to these offshore resources? I do not think you will find very many people in New Brunswick or Prince Edward Island, if they look at the map of the Atlantic region, who will support such an amendment as this, and neither shall I.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Dionne. The Chair understands that honourable members are ready for the question and I understand there will be a recorded vote on the proposed subamendment, so I would like to invite honourable members who favour the proposed subamendment to answer the call of the Clerk of the Senate and of the House of Commons.

Amendment negatived: yeas, 9; nays, 13.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to come back on the main amendment as amended, and on that amendment I would like to invite honourable Senator Roblin followed by honourable Ray Hnatyshyn.

Senator Roblin: Mr. Chairman, I want to make a statement on western alienation and then ask a couple of questions in connection with the motion because I note that one of our colleagues around the table addressed himself to this problem, and while perhaps it would not ordinarily be appropriate to continue the discussion because it is not strictly germane to the details before us perhaps I might be allowed to make some comment on what was said because basically I think it was a worthwhile endeavour on the part of my colleague to try and state according to his lights some of the problems that are connected with the concept of western alienation.

I have said elsewhere that I am not so much afraid of separation as I am afraid of alienation. Separation is sudden death. Alienation is a wasting disease; it is an agony, that is right; it is a wasting disease and it is an agony. It deserves

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ventilation and I am glad that the matter was raised because it was a sincere effort. I am convinced, to express to the Canadian community something of the Western feeling.

I want to deal with it as gently as I can because I feel that it was not exactly consistent with the facts that the whole of this problem should be hung around the neck of Sir John A. MacDonald. I do not think that that was the intent to hang it around Sir John A. MacDonald’s neck. After all, he has been dead 90 years now, and the quotations that were collected from his multifarious writings and comments that extended over a long and active life are even older; and it would be unfortunate if the impression was left that because this Canadian statesman I00 years ago said certain things and bore a certain political label that on that account seine inheritance has been left to those who also belong to that party in this day and age.

I suppose that was not meant but I have to confess that I am perhaps a little sensitive about it.

I think it would be well to carry the analysis a little further in point of time and history because as I have said Sir John has been dead and buried these 90 years and more, and the quotations attributed to him belong to a period when western Canada was not the kind of place that it is today. They belong to a time when western Canada was an empty and deserted land and there was no man’s hand to touch it to bring it to life and fruitfulness the way that it has been brought to its present state as part of our Canadian nation today. It certainly is not unreasonable to think that opinions would change even in the mind of Sir John if he were alive in this day and generation.

It would perhaps have been useful to come down a little closer to our time and skip over the progressives and the social creditors and other protest movements that have had their place in attempting to ventilate western opinion in the Canadian political comedy and remember John Diefenbaker, because if there was any man that made all Canadians, and I think I may say this, all Canadians to feel themselves within the charmed circle of our national community, he was that man. I say as a westerner who had some experience during those days that he made most western Canadians feel that they too belonged within the charmed circle of Canadian unity. So there has been a time in the recent history of our country when western alienation was not the problem that it is today and that western Canadians felt they belonged in a sense which obviously they do not feel at this moment.

I am not going to attempt any exercise here of allocating responsibility or blame in the situation that has developed over these years, but in candor I am compelled to say to this Chamber and to this Committee that if they are concerned about western alienation today, and I know they are, that they have to have reference to what we are doing in this day and generation in the Canadian political arena.

I am sad to say that the consequences of our activities, if we produce an amending formula that has a veto that appears to continue the control of central Canada in our national affairs and when it sets up differences between provinces of the nature that we discussed here many times and which I do not wish to

[Page 82]

exacerbate or enlarge upon, I warn the Committee that that presents a problem.

And I say also that if we consider another aspect of our current affairs, namely the national energy policy, that raises similar questions in connection with the feelings of Western Canada. Not that I am willing to discard the whole of the national energy policy out of hand because I am far from doing that, there are many goals in that policy which I can hardly subscribe to, but it is a sad fact that in wide areas of opinion in western Canada this is construed as being unfair. and will add to our problems of alienation.

In fact, a quotation from Mr. Ralph Hedlin, who my humble friend, Senator Austin, and I know very well, was made in the context of a lengthy examination of western alienation as related to the national energy program itself, which indicates the seriousness of the problem, that we are dealing with.

Now, I do not want to exacerbate the problem, I am not at the moment interested in attaching fault or blame to anybody, I am not criticizing Senator Austin’s statement because I believe he initiated a very worthwhile line of thought around this Committee, but candor compels me to say the things that I have said because I believe that they are part of the problem that we face today and we would be deceiving ourselves if we were to refrain from giving these considerations the weight which they are due.

I am convinced that we have by no means exhausted our capacity” for reasonable compromise and understanding in this country. I am convinced that we have by no means come to the end of the road whereby we can get together the people of Canada in the way that we should; but let us take heed of the warning signs we see, let us not press on regardless of the danger signals that are flying; let us instead decide that we are going to reexamine our position and do what we can as members of this Parliament to restore the fabric of unity and of co-operation and good feeling in our nation, and if we can do that then perhaps we will have enjoyed our moment in history.

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

Honourable Ray Hnatyshyn.

Mr. Hnatyshyn: Thank you, Mr. Chairman.

I want to congratulate Senator Roblin on a very articulate and very accurate assessment of some of the fears and aprehensions that I think are felt in Western Canada today, but he said it so well that I do not want to do anything except to congratulate him and to say amen from my point of view

I was interested as well that Senator Austin would quote Ralph Hedlin and Associates in approbation, that is a surprising development, but I will leave that for people who read his publications as to what he says about the Liberal government. I take it that that was a limited approbation and not general approval of what Ralph Hedlin suggests is wrong with our country, otherwise Senator Austin would be replaced as the spokesman for the Liberal party forthwith and without debate.

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I just want to address myself as well to clarify, if I could, the point I was making earlier today with respect to the ownership concept and I know that Senator Austin was pointing out something that is self evident, that ownership in modern society does have restrictions and limitations on it and I take no issue with him on that particular point, but I start off on the basic conceptual proposition that ownership does involve unfettered control and direction and authority over property, and the concept is there in the conceptual way that there is an unfettered ability to deal with, whether it be a resource or commodity or whatever the item of ownership is, and surely what we are now looking at, though, is the question of, not of whether or not there are limitations on ownership because there are and any legislature is supreme in terms of the legislation as within its own authority, but clearly we are looking at the balance of authority over the ownership of resources under this particular resolution.

The point that I was making is that either from a point of view of the legal or judicial interpretation of the provisions that we are now considering, my caveat and my concern that these particular provisions may in fact have a different result than we all hope they will have in terms of enhancing the ability of provinces to deal properly with the ownership of their resources within their own jurisdiction.

I wanted to, though, deal with and ask the Minister now, since we are dealing with this particular amendment, I have been asking him for a couple of days now questions in the House of Commons with respect to just how far he is going to go on this resource amendment and I just want to pursue that with him if I might, Mr. Chairman.

The Minister will recall that I have asked questions relating to negotiations that have been carried on with the province of Saskatchewan over a period of time, but more particularly over the course of the last two weeks, and the reason that I am interested is, and I think we in the Committee are anxious to know exactly whether the statement of the Minister with respect to the support for this amendment is his final word. This is the basis upon which I direct my question to the Minister.

I know he can give me the answer that: well, there have been ongoing negotiations and discussions; but I think the moment of truth has arrived now for this Committee because we have got to consider whether we are going to support this amendment, and particularly whether this is the final word as far as the federal government is concerned on the resource amendments.

So I want to ask the Minister, because the Attorney General of the Province of Saskatchewan has had a press conference this morning, he has indicated a number of things: one, that there were proposals and discussions on the table which were made by the federal government through officials, these were communicated and an official of the federal government attended with the Attorney General in Hawaii to speak to Premier Blakeney, and his assessment was that there were propositions put forward which, while they indicated a move-

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ment towards the position Saskatchewan has taken, were not sufficient to meet their objections.

So I think it is only fair that the Minister now tell us, and I should preface my question on this basis, he has answered us before that the Province of Saskatchewan knows full well what the position of the federal government is and they can in effect take it or leave it, but in view of the statement of the Attorney General can the Minister tell us what proposition was put forward to the province of Saskatchewan with respect to the resource amendment; and, is that offer still available to the province of Saskatchewan and does it differ from the amendment that is now being placed before us?

Mr. Chrétien: The question that you asked is basically is it a final draft and it is the final draft and when it is voted it is going to be the final offer; it is agreed upon that this amendment as it exists after the subamendments have been voted upon, this is the one that the government has accepted and it is the one that has been agreed upon by Mr. Broadbent and ourselves and it is the one that I had offered to the provinces early this summer.

Mr. Hnatyshyn: Mr. Chairman, then I want to ask the Minister, I take it as a categorical answer that there will be no more extension of the offer, in other words there will not be any amended version of this particular proposition put to the province of Saskatchewan before the resolution is finally dealt with by the House of Commons?

Mr. Chrétien: Definitely.

Mr. Hnatyshyn: I want to then deal with, because it is a total question of whether or not the provincial New Democratic Party in Saskatchewan is opposed to this package, but there is a related issue. I know it is not completely germane to this particular provision but it is related because the two things are put together as items that Premier Blakeney told us in the Committee, items that would have to be satisfied on before they would give support to the constitutional package, and that was with respect to the referendum.

I gather that the same answer would obtain, that as far as the position has been taken by this Committee on the referendum provisions of the package, that there will be no movement on the federal government in that respect prior to the final passage?

Mr. Chrétien: If it has been voted upon in this Committee, it is over.

Mr. Hnatyshyn: So you are then in the position where, as far as you are concerned, you are going ahead with this package now in light of the realization that the province of Saskatchewan is in opposition to the package?

Mr. Chrétien: We decided in October to go ahead with this package on resources, we made that offer in the summer and it was considered by the national New Democratic Party to be an adequate offer and we are going ahead with it. It is a transfer of indirect taxation and interprovincial trade power to the provinces.

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As Mr. Broadbent said, it is three quarters or four fifths of what Saskatchewan was asking but, as I said so many times, perfection is the enemy of the good; so we are going with what is good.

Mr. Hnatyshyn: Well, I just do not think we should confuse Mr. Broadbent and Mr. Blakeney because they are obviously taking quite different positions.

Mr. Chrétien: Just as I do not confuse Mr. Clark and Mr. Davis, or Mr. Hatfield.

Mr. Hnatyshyn: No, but I want to know on this particular issue, and naturally Conservatives always agree on every item, but I just want to talk now about the New Democratic Party.

What I am getting at is that the Attorney General of the province of Saskatchewan has made it quite clear, and as I indicated, that they are not supporting it, and I ask the question in that context. Another point that he made in terms of his observation was that notwithstanding the fact that the Secretary of State of External Affairs seems to think that any action on the part of the provinces or anyone to make a reference to a court to get interpretation of the constitutionality of the actions taken by the federal government was an abuse of legal process, there was some suggestion that the federal government should in fact have taken this matter directly to the Supreme Court of Canada for an expeditious assessment of the ability of the government to proceed having regard to the decision of the highest court in the land.

I am wondering whether or not the Minister of Justice and the Attorney General has any thoughts at this point in time having regard to these criticisms about the reference and the fact there is a plethora of references now to courts of appeal with respect to the matter of having the Supreme Court of Canada deal with the issues that are before the courts of appeal?

Mr. Chrétien: Mr. Chairman, I do not see the relevancy of the question of the honourable member on what we are talking about, but personally if you give me the permission I will comment and it will be very short.

Parliament in Canada legislates and the court adjudicates, or whatever they do, but they do not legislate. Also we are having legislation here and we are passing it and if the courts want to pass judgment after that, they are there for that; but I do not think, as Attorney General of Canada I am telling you I will recommend to the government as much as possible that the role of Parliament is to legislate and if citizens or provinces or pressure groups want to litigate, they can, but we should not start that idea that everytime we move, we have to go to the court. I do think that Parliament has—there is a clear division of powers in our society and the Parliament or legislature legislates and the court passes judgment and I do not think that we should reverse the process.

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We have our responsibility and the court has their responsibility and I do think that it is not the proper way or very adequate to develop that idea that whenever we want to legislate we should go and check with the court first. It is the reserve. We legislate and the court decides after the fact.

I think there is a tendency in some areas at this time to reverse the role and I think that Parliament should face its responsibilities. We have been elected to legislate and it is what we are doing.

Some hon. Members: Hear, hear.

The Joint Chairman (Mr. Joyal): Now, at this point I want to draw the attention of the honourable member that that line of questioning is more in relation to a further decision that this Committee will have to take later on, maybe tonight or tomorrow or in the forthcoming week, about what kind of recommendation we should make to both Houses, the Senate and House of Commons.

So I would like the honourable members to keep their questioning for that very moment, but at this point we are dealing with an amendment that is more in relation with nonrenewable natural resources, forestry resources and electrical energy than anything else, and so far as the government action is concerned in relation to the court action, I would invite the honourable members to ask those questions when we are dealing with the recommendation to both Houses.

Mr. Hnatyshyn: Mr. Chairman, there was some observation that the New Democratic Party are particularly concerned or are apprehensive about this line of questioning for some reason. but I wanted to point out that this particular provision does deal with a definition of ownership of provinces, it deals specifically with the provincial right, and of course I suggested with the greatest of difference that the whole question of whether or not in terms of the ethicacy of the government, whether it be a political or legal question, it is quite germane for me to ask the Minister with respect to his intentions to get clarification of the appropriateness of this particular amendment because it does deal with a matter that is essentially a provincial right, provincial ownership of resources and one which I wanted to, I think all members of the Committee would want to be absolutely satisfied that if we move on this, that somehow we are not going to be faced with having egg on our face later on to find out somehow we moved on a matter that was ultra vires of us because the Supreme Court of Canada determined that to be the case. So that was the reason why I was directing my questions to the Minister.

Mr. Chrétien: On that I think that your point is very easy to answer.

We are giving powers to the provinces so I do not think that if ever the court said that we had been too generous in favour of the provinces, I do not expect your party to be mad at me because I have been too generous to the provinces.

Mr. Hnatyshyn: Well, I raise it in the context of making sure, Mr. Chairman, that what we do in this Committee is going to cause the least amount of judicial references and that

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we get through this without causing the people of Canada great expense and inconvenience of finally determining what the powers are of this Committee.

I make that point but the Minister, I gather his answer is and I am not going to pursue it further . . .

Mr. Chrétien: Good. Better not.

Mr. Hnatyshyn: The Minister’s position is that he is not the least bit interested in getting any sort of judicial interpretation before he moves on this or any other provision of the package.

Mr. Chrétien: You have stated very clearly my position. We are the legislators and we will legislate and the court will decide in due course. It is the proper course, that should be that way all the time.

Mr. Epp: The government will propose and Parliament will dispose.

Mr. Chrétien: There is confusion like that.

Mr. Hnatyshyn: I appreciate that and I am going to conclude my remarks, I do not want to attribute motives but the last time we dealt with a constitutional package of which I was a part, the government was receptive to getting the matters clarified and did refer the provisions of Bill C-60 and I want to know what the reason was, why the Minister is now changing . . .

Mr. Chrétien: You asked us, it is very simple: you have a different Attorney General, that is all.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Ray Hnatyshyn.

I would like to invite at this point honourable Jake Epp.

An hon. Member: Be relevant.

Mr. Epp: Always.

Mr. Chairman, I was going to mention a few matters arising out of Senators Austin’s comments; I believe Senator Roblin has done that not only in detail but also, as a matter of fact, in terms of the interpretation of history as it relates to western Canada.

If there is anything to be said in it as to what Senator Austin or Senator Roblin said, many of us are deeply concerned about the alienation in the west because it is a mental alienation that is developing and that alienation is finding expression in various actions, and we are concerned. We are concerned because we believe that a federalist qualification needs no second guessing; we believe that there has not been a price we have had to pay for federalism, but rather we have made a commitment to federalism, and for those whose commitment might not be quite as strong we want to make sure that they have reason to be positive partners rather than questioning why they remain.

Regarding the amendment. Mr. Chairman, I want to spell out the position of the party as we see the amendment, I want to emphasize that the discussion on both the McGrath and the New Democratic Party amendments forcefully demonstrate the necessity, if not the categorical imperative, of going back to the negotiating table with the first ministers on this question

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as well as the separation of the package as we have argued all along.

Mr. Dionne, I believe, put his finger on it when he spoke about the offshore and when he had a number of questions as to where shall the boundaries be drawn, who shall get what revenues, and he is correct when he says that, Mr. Chairman, and it is for that reason that only federal—provincial negotiations can in fact complete that task.

Mr. Chairman, given the federal character of our system it is important that we keep the integrity of federal provincial negotiations intact. Furthermore, given the nature, the scope and complexity of the New Democratic Party amendment, it is necessary, if we are to avoid self-inflicted wounds, that we clearly are aware of the problems the amendment might create.

What are some of the potential problem areas, then? One, the matter of indirect taxation. The provinces have accepted the principle of indirect taxation, they have done this for some time, but this still leaves in doubt their acceptance of the exact wording of the amendment before us. It is for that reason that we feel the provinces again must have the final negotiation position with the federal government on the wording itself.

We have been told, both by the government and the New Democratic Party, that the power of indirect taxation will enable the provinces to obtain significant additional revenues. Serious doubts remain whether this is so.

This assertion, as demonstrated by this morning’s debate by the NDP can be seriously questioned. It can be seriously questioned because of the power of the provinces of direct taxation and the power of the provinces of royalty regimes relating to both renewable and nonrenewable resources.

Another case in point, Mr. Chairman, is the point of Newfoundland and especially the power generation at Churchill Falls in Labrador.

That agreement between Newfoundland and the province of Quebec specifically states that the province of Newfoundland cannot levy any direct or indirect taxes on Quebec Hydro.

So a question remains: what happens to that clause of the contract? We have talked about the problem between Newfoundland and Hydro Quebec and the matter that there would be now greater difficulties because of the power that is in this clause.

[Page 89]

Senator Roblin, as I have pointed out, earlier said the provinces have no serious difficulty in raising revenue through the present regimes of taxation.

Some provinces may find the grant of indirect taxation powers as presently amended in fact restrictive.

Suppose, for example, a province wants to give a tax rebate, made to foster industrial development in its own province; the question remains: can it do this, when the present amendment grants the power of indirect taxation so long as that province does not discriminate against the other partners of Confederation.

Mr. Chairman, what about the definition of interprovincial trade? Where does interprovincial trade start and end? Does it, for example, reach back to the wellhead? True, the Petroleum Administration Act honours provincial boundaries presently; but this, of course, can change.

It is a statute only. For instance, in the United States, the situation may provide a useful caveat since it clearly demonstrates how the meaning of interstate trade and commerce has changed so that it is presently interpreted to inside the borders of a state. There are legal cases to show that.

For example, does this amendment allow the federal government, given its paramountcy, to reach back into provincial jurisdiction in the name of interprovincial trade? This is obviously not clear.

The third problem that remains—the problem over the clarification and limitation of the federal government’s declaratory and emergency powers. What is a national emergency? Is it based upon a shortage of supply? For example, in 1979 the western provinces pushed for a national compelling interest clause, rather than a national emergency clause, or a declaratory clause; and the western provinces have repeatedly expressed their concern over this issue—something that Senators Austin and Roblin both addressed.

I would suggest that this clause, if passed, will again not fully address that concern.

Mr. Chairman, what about pre-emptive federal legislation on nonrenewable resources which may make this amendment, to all intents and purposes, cosmetic only?

The Petroleum Administration Act demonstrates that the federal government could legislate on nonrenewable, natural resources so completely as to make the guarantee of provincial ownership, control, development and conservation nominal, if not in fact meaningless. That is also in the clause.

What about the problem of conservation? Can the federal government regulate production against reservoir conservation practices?

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We have already dealt with the fisheries concern, unfortunately, not in the manner that the honourable John Fraser had hoped for.

Mr. Chairman, those are the problems that we see with this clause. Are there advantages? I believe, yes, one can say that there is an advantage that the NDP amendment recognizes, affirms provincial rights regarding non-renewable resources, including exclusive right to legislate in the development, conservation and management of those resources.

I concede that is the position in that clause. Secondly, that the provinces now have concurrent interprovincial legislative powers subject to federal paramountcy; that is greater power to the provinces.

Lastly, there is the right to indirect taxation. Mr. Chairman, the provinces have long wanted these rights. So where does that leave our party and this Committee?

I believe—and all members of our party believe—that a great deal of doubt can be dispelled by a meeting of First Ministers to conclude the discussion on the matter of indirect taxation and in fact, resource ownership and management.

It has been noted, for example, that the Prime Minister has said such negotiations will take place in the second phase, but what will those negotiations be like if the Prime Minister is actually successful in his approach to have Britain amend our constitution, and that this amendment will then already be a fact of life in the constitution before that second round takes place?

While the provinces have agreed in principle to this amendment, we have to reluctantly look at the confusion which we believe could still develop because of the amendment.

So, Mr. Chairman, having looked at both the pros and the cons of this amendment and having outlined the difficulties, we suggest that we can only support this amendment on the basis, that, after its passage in fact it be referred back to the premiers for final clarification and ratification. Thank you.

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

I see that honourable members are ready for the question.

Amendment agreed to.

On Clause 52—Constitution of Canada.

The Joint Chairman (Mr. Joyal): I would like then to invite honourable members to move on Clause 52. It is a new part of the proposed resolution; it is Part VI of the proposed resolution entitled “General”.

Il s’agit de la partie 6 de la resolution on discussion, intitulée «dispositions générales».

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On that very Clause 52, the Chair has been informed of one amendment, It is an amendment moved on behalf of the government party, and it is numbered G-45, Clause 52, page 15.

Il s’agit d’un amendement portant l’identification G-45, article 52, page 15.

If some of the honourable members do not have a copy of the proposed amendment, the Chair will make sure that the Clerk extends one to them. I will repeat.

Il s’agit de l’amendement identifié G-45, article 52.

We are dealing now with the amendment identified or numbered G-45, Clause 52, page 15. 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 52 of the proposed constitution act, 1980, be amended by:

(a) adding immediately before line 18, on page 15, the following subclause:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

and (b) renumbering Clauses 52(1) and (2) as Clauses 52(2) and (3) respectively.

Thank you, Mr. Chairman.

[Translation]

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

Mr. Corbin: I move, Mr. Chairman, that:

[Text]

Que l’article 52 du projet de Loi constitutionnelle de 1980 soit modifié par:

a) adjonction, avant la ligne 18, page 15, de ce qui suit:

Primauté de la Constitution du Canada «52.(1) La Constitution du Canada est la loi supreme du Canada; elle rend inopérantes les dispositions ineompatibles de toute autre regle de droit.»

b) les changements de numéros d’article qui en découlent.

[Translation]

Thank you, Mr. Chairman.

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

[Text]

Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

I have a brief question with respect to this provision, and that is on new Clause 52(1) there is a reference to any law that is inconsistent with the provisions of the constitution being of no force or effect to the extent of the inconsistency.

Mr. Chairman, I wonder if I might ask the officials to confirm my understanding that this would refer not only to statute law, but to the common law as well, and any common law traditions which have been developed in the courts, would be rendered inoperative as well. Is that an accurate reading of that clause, Mr. Tassé?

[Page 92]

This page is missing.

[Page 93]

[Translation]

Senator Asselin: I am only saying that the supremacy provided for in this clause could affect certain existing provincial rights which will necessarily have to be corrected.

Of course certain clauses of this particular charter may well contradict certain clauses of provincial charters.

Mr. Chrétien: If you are referring to the charter of rights . . .

Senator Asselin: There are many provinces which have a charter of rights.

Mr. Chrétien: Indeed. So in certain areas, the provincial charters go even farther than ours. In such a case, our charter will have no effect.

However in those areas where the Canadian charter of rights, which will be constitutional, goes further than the provincial charter, then . . .

Senator Asselin: They will be superseded.

Mr. Chrétien: They will be superseded. That is, citizens will have acquired a greater right, than that provided for in the provincial charter, but there will be no requirement to amend the provincial charter however, since in the charter, powers are granted to the citizens. In such a case, the federal or Canadian constitutional charter will prevail, and it will not be necessary to amend provincial charters, because the rights of the citizen will be constitutional and of course a constitutional right has superseded a legislative right. That is why we want to make these rights constitutional, so that they cannot be changed according to the whims of he Canadian parliament or a legislative assembly.

[Text]

Mr. Mackasey: Mr. Chairman, may I ask a supplementary question to the Minister arising out of that?

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

Mr. Mackasey: Mr. Minister, am I right in saying that you have taken recognition of the obvious point that Senator Asselin has made by providing a time period for that adjustment? Would you remind us once more of that, that there is a time provision for that type of adjustment?

Mr. Chrétien: There is a three year period for the nondiscrimination rights. The other rights in the Charter will be effective the day we proclaim the new Canadian constitution.

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

Mr. Robinson on a supplementary question.

Mr. Robinson: Thank you, Mr. Chairman.

I have a supplementary question to the Minister through you, following up on Senator Asselin’s question.

Mr. Minister, is your department in the process of examining carefully federal legislation to determine what provisions of federal legislation may be affected by this proposed constitutional resolution and, in particular, by the proposed Charter of Rights and, specifically, what is your department’s opinion

[Page 94]

of the likely impact of the Charter of Rights on Section 12(1)(b) of the Indian Act?

Mr. Chrétien: We have already started the review of all the legislation that will have to be amended when the Charter becomes effective. This has not yet been completed, but we know we will have to legislate on the matter and adjust our legislation to meet the requirements of the Charter.

In relation to the Indian Act, we know that there is discrimination against women on Indian reserves, in a case where an Indian woman married a white man or gets married outside of what I might call Indian membership. They are losing their Indian status. This will have to be corrected. We said it will be corrected within three years.

As you know, we have tried through negotiations in the last twelve years to correct that. I started the process when I became the Minister of Indian Affairs in 1968, and we have have not been able to reach an agreement with the registered Indians on that.

But when the Charter becomes effective, the Parliament of Canada will be obligated to change that clause within three years.

Mr. Robinson: For the purposes of clarification then, Mr. Minister, you are saying that when the Charter of Rights becomes effective three years after proclamation. Section 12(1)(b) would be in conflict with the provisions of the Charter?

Mr. Chrétien: That is exactly what I mean.

Mr. Robinson: Thank you.

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

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

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I will call the vote on Clause 52.

Clause 52 agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable members to move on Clause 53, On Clause 53 the Chair has not received any amendment, and unless there is a question or intervention on the proposed Clause 53, the Chair will call the vote on Clause 53.

Clause 53 agreed to.

The Joint Chairman (Mr. Joyal): On Clause 54, the Chair has not received any amendment.

Clause 54 agreed to.

The Joint Chairman (Mr. Joyal): On Clause 55, there is no amendment.

Clause 55 agreed to.

The Joint Chairman (Mr. Joyal): On Clause 56, there is no amendment.

Clause 56 agreed to.

On Clause 57—Commencement.

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The Joint Chairman (Mr. Joyal): On Clause 57, the Chair has received an amendment. It is an amendment numbered 7 -25, Clause 57, page 16.

Il s’agit d’un amendement portant la numérotation PC-25, article 57, page 16.

I repeat the number: CP-25, Clause 57, page 16.

If some honourable members do not have a copy of the amendment I will make sure that the Clerk extends one to that honourable member.

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, I have been watching Mr. Bockstael for days now, wanting us to proceed quickly, and being the cooperative fellow I try to be at times I want to tell Mr. Bockstael and others that in view of the other amendments that have been moved I now think this amendment is redundant and I will withdraw it.

The Joint Chairman (Mr. Joyal): So the amendment is withdrawn with unanimous consent.

Clause 57 agreed to.

On Clause 58—Exception respecting amending formula.

The Joint Chairman (Mr. Joyal): On Clause 58 the Chair has received an amendment. It is numbered CP-26, Clause 58, page 16.

Il s’agit d’un amendement portant le numéro CP-26, article 58, page 16.

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

Mr. Epp: Mr. Chairman, I cannot be quite as co-operative on this amendment but I would like to withdraw it as well.

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

Clause 58 agreed to.

On Clause 59—Citations.

The Joint Chairman (Mr. Joyal): On Clause 59, the Chair has received one amendment. It is numbered G-46, Clause 59, page 16.

Il s’agit d’un amendement portant le numéro G-46, article 59, page 16.

If some honourable members do not have a copy of this proposed amendment I will make sure that the Clerk extends one to them.

At this point I would like to advise Mr. Irwin to move the amednment in the usual way. Mr. Irwin.

Mr. Irwin: Thank you, Mr Chairman. I would like to move that Clause 59 of the proposed Constitution Act, 1980 be amended by striking out lines 30 to 34 on page 16 and substituting the following:

59. This Schedule may be cited as the Constitution Act, 1981 and the Constitution Acts 1867 to 1975, No. 2 and this Act may be cited together as the Constitution Acts, 1867 to 1981.

[Page 96]

[Translation]

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

Mr. Corbin.

Mr. Corbin: Mr. Chairman, I move:

[Text]

Que l’article 59 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 30 a 34, page 16, de ce qui suit:

«59. Titre abrégé de la présente annexe: Loi constitutionnelle de 1981; titre commun des lois constitutionnelles de 1867 23 1975 (no 2) et de la présente loi: Lois constitutionnelles de 1867 à 1981.»

[Translation]

Thank you.

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

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

[Text]

Honourable Jake Epp.

Mr. Epp: Mr. Chairman, a question to the Minister. In the explanatory note you referred to the date only even though there is also the matter of the title and I take it that this amendment would relate to the date only, that the title is not touched in this amendment. Is that correct?

Mr. Chrétien: The date is part of the title, that is why.

Mr. Epp: I realize that, Mr. Minister, but all that you are changing in the title is the date from 198010 1981. In the title, other than that change there is no change in this Clause. It comes later on, namely in the salutation.

Mr. Chrétien: That is right. We are just changing the zero to a one.

Mr. Epp: Exactly, thank you.

The Joint Chairman (Mr. Joyal): Thank you very much, honourable Jake Epp. I understand that honourable members are ready. All those in favour of the proposed amendment, please raise their hands.

Clause 59 as amended agreed to.

The Joint Chairman (Mr. Joyal): The Chair of course sees the clock.

Meanwhile some amendments are being circulated around the table and those amendments have been extended to the Chair on behalf of the translation service of the Department of Justice. It seems that in the review that took place after our work there are some slight corrections to be made to some of the previous clauses that we have adopted in this Committee, and those are only technical changes. They have nothing to do with the substance of our previous decisions.

The Chair will start with those amendments when we resume our work at 8 o’clock tonight.

This meeting is then adjourned until 8 o’clock tonight.

[Translation]

The meeting is adjourned.

[Page 97]

[Text]

EVENING SITTING

The Joint Chairman (Mr. Joyal): May I invite honourable members to take their seats so that we can resume consideration of the proposed resolution. Before I call Schedule I of the constitution act, 1980. the Chair has been informed by the legislation service of the Department of Justice of a certain number of corrections that should be made to the clauses that we have already carried. Honourable members will find on their table a certain number of amendments. They are identified G-23-1, Clause 17. page 6; G-25-1, Clause 19, page 6; G-26.1, Clause 20, page 6; G-42.1, Clause 47, page 14 and a sheet of paper which title is Proposed Technical Amendments to the English version of the Proposed Constitution Act, 1980, submitted for approval.

I hope that all honourable members have a copy of the amendments that I have given the identification for so that I may with unanimous consent reopen those clauses that are in relation to the proposed technical amendments but for the more purpose of substituting or changing the words that are suggested by the legislation service.

In no way does it imply change of substance for what has already been approved. It is merely a question of language concordance or symmetrical concordance or change of words that are more appropriate. I see for instance “prescribed” for “described” and so on.

I would like to invite Mr. Corbin to move the amendments in both official languages.

Mr. Corbin: We are on G-23-1, Mr. Chairman.

The Joint Chairman (Mr. Joyal): I will call G-23-1. Clause 17, page 6.

On Clause 17—Proceedings of Parliament.

Mr. Corbin: Mr. Chairman, I move that the French version of Clause 17 of the proposed constitution act, 1980 be amended by striking out lines 20 and 21 on page 6 and substituting the following:

17. Chacun at le droit d’employer le français ou l’anglais dans les débats

[Translation]

I move, Mr. Chairman,

[Text]

que la version francaise du projet de Loi constitutionnelle de 1980 soit modifiée par substitution, aux lignes 20 et 21 de l’article 17, page 6, de ce qui suit:

«17. Chacun a le droit d’employer le francais ou l’anglais dans les débats»

The Joint Chairman (Mr. Joyal): I can give as a general explanation that the version of that clause that we have already adopted was reading:

Chacun a le droit d’employer l’une ou l’autre des langues officielles.

So we have had the legislation service recommend that we use French or English instead of official languages because in

[Page 98]

the following paragraph that we have adopted in relation with New Brunswick we have adopted French or English so in the same clause we have the same kind of consent for what we have already adopted. Honourable members will notice that it is the same for the next amendment.

Amendment agreed to.

On Clause 19—Proceedings in courts established by Parliament.

The Joint Chairman (Mr. Joyal): Mr. Corbin for the amendment numbered G-25-I, Clause 19, page 6.

Mr. Corbin: Mr. Chairman, I move that the French version of Clause 19 of the proposed Constitution Act; 1980 be amended by striking out lines 29 and 30 on page 6 substituting the following:

19. Chacun a le droit d’employer le francais ou l’anglais dans toutes les

[Translation]

Mr. Chairman, I move

[Text]

Que la version francaise du projet de Loi constitutionnelle de 1980 soit modifiée par substitution, aux lignes 29 et 30 de l’article 19, page 6, de ce qui suit: «19. Chacun a le droit d’employer le francais ou l’anglais dans toutes les»

[Translation]

Thank you.

[Text]

Amendment agreed to.

On Clause 20—Communications by public with federal institutions.

The Joint Chairman (Mr. Joyal): I would like then to call proposed amendment G-26.1, Clause 20, page 6. Mr. Irwin.

Mr. Irwin: Thank you, Mr. Chairman. I wish to move that Clause 20 of the English version of the proposed Constitution Act, 1980 be amended by striking out line 35 on page 6 and substituting the following:

French, and has the

Il est proposé

Que l’article 20 de la version anglaise du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la ligne 35, page 6, de ce qui suit:

“French, and has the”

Thank you, Mr. Chairman.

Amendment agreed to.

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

The Joint Chairman (Mr. Joyal): I would like to call the amendment numbered G-42.1, Clause 47, page 14. Mr. Corbin.

Mr. Corbin: Mr. Chairman, I move that Clause 47 of the proposed Constitution Act, 1980 as amended, be amended by striking out lines 20 to 22 on page I4 and substituting the following: section.

[Translation]

Mr. Chairman, I move

[Page 99]

[Text]

Que l’article 47 du projet de Loi constitutionnelle de 1980, dans sa forme modifiée, soit modifié par substitution, aux lignes 20 a 22, page 14, de ce qui suit: «present article.»

[Translation]

Thank you.

[Text]

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to draw the attention of the honourable members to the last sheet, the proposed technical amendments, and I will read again the title of that sheet of proposed amendments. It is:

Proposed Technical Amendments to the English Version of the Proposed Constitution Act, 1980 Submitted for Approval

and the Chair does intend to call each of the proposed changes so that our minutes will be in good order.

I would like to invite Mr. Irwin to move the proposed technical changes.

Mr. Irwin: These are the eight recommendations, Mr. Chairman?

The Joint Chairman (Mr. Joyal): I will invite the honourable member to move each paragraph and after each paragraph I will call the vote.

Mr. Irwin: Mr. Chairman, the proposed technical amendments to the English version of the proposed Constitution Act, 1980 submitted for approval.

1. In the new clause after Clause 26, change “No provision of” to “Nothing in”.

Amendment agreed to.

Mr. Irwin:

2. In Clause 29(2) of the original resolution on page 8, change “application” to “effect”.

Amendment agreed to,

Mr. Irwin:

3. In the new clause after Clause 34,

(a) change “described in” to “prescribed by”; and

(b) change “relates” to “applies”.

Amendment agreed to.

Mr. Irwin:

4. In the Clause 35(1) of the original resolution on page 10, change “described in” to “prescribed by”.

Amendment agreed to.

Mr. Irwin:

5. In the new Clause 40(5), move the words “under subclause (4)” so that they appear after the words “If Parliament does not enact laws”.

Amendment agreed to.

Mr. Irwin:

6. In the new clause after Clause 43,

(a) change “described in” to “prescribed by”;

(b) change “relates” to “applies”.

[Page 100]

Amendment agreed to.

Mr. Irwin:

7. In Clause 45(1) of the original resolution on page l3 change “described in” to “prescribed by”.

Amendment agreed to.

Mr. Irwin:

8. In the new Clause 46(5), move the words “under subclause (4)” so that they appear after the words “if Parliament does not enact laws”.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like then to invite honourable members to move on Schedule I to the constitution act, 1980. On that very Schedule the Chair has been informed that there are two proposed amendments, one on behalf of the government party, it is numbered G-47, Schedule I and one on behalf of the Official Opposition, the Conservative party, and it is identified CP-26.1, Schedule I to constitution act, page 18.

If some honourable members do not have copies of the two proposed amendments the Chair will make sure that the Clerk extends copies to the honourable members.

I will repeat the number. It is an amendement in relation with Schedule I and is identified G-47, Schedule I. En français, G-47, annexe 1.

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

Mr. Irwin: Mr, Chairman, I wish to move that Schedule I to the proposed constitution act, 1980 be amended:

(a) by adding thereto, immediately after item 2 thereof on page 17, the following item:

Column I
Column II
Column III
Item
Act
Amendment
New Name

“3. Order of Her
Majesty in Council
Admitting Rupert’s
Land and the
North-Western
Territory into the
Union, dated the
23rd day of June,
1870
Rupert’s Land and
North-Western
Territory Order”

(b) by renumbering items 3 to 29 as items 4 to 30 respectively; and

(c) by striking out the renumbered item 22 on page 19 and substituting the following item:

[Page 101]

Column I
Column II
Column III
Item
Act
Amendment
New Name

“22. British North
America (No. 2) Act, 1949,
13 Geo. VI.
c. 81 (U.K.)
The Act is repealed.
(effective when
section 51 of the
Constitution Act,
1981
comes into
force)”

Thank you, Mr. Chairman.

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

[Translation]

Mr. Corbin: Mr. Chairman, I move

[Text]

Que l’annexe 1 du projet de Loi constitutionnelle de 1980 soit modifié par:

a) adjonction, après la rubrique 2, page 17, de ce qui suit:

Colonne I
Colonne II
Colonne III
Article
Loi visée
Modification
Nouveau titre

«3. Arrêté en conseil
de Sa Majesté
admettant la Terre
de Rupert e le
Territoire du
Nord-Ouest, en date du 23 juin
1870.
Décret en conseil
sur la terre de
Rupert et le
Territoire du
Nord-Ouest»

b) substitution, aux numéros de rubrique 3 à 29, des numéros 4 a 30, respectivement;

c) substitution, au nouveau numéro de rubrique 22, page 19, de ce qui suit:

Colonne I
Colonne II
Colonne III
Article
Loi visée
Modification
Nouveau titre

«22. Acte de l’Amérique
du Nord britanni-
que (Nº2), 1949,
13 Geo. VI.
c. 81 (R.-U.)
La loi est abrogée
lors de l’entrée en
vigueur de l’article
51 de la Loi
constitutinnelle
de 1981.
»

[Translation]

Thank you.

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

[Text]

Mr. Munro.

[Page 102]

Mr. Munro: Point of order, Mr. Chairman I notice that the items being amended here are 3 and 22. I notice also that the items in Schedule I are listed chronologically from 1867 through on page 17 at least to 1886, number 3 being 1870 fits in within that chronological order.

There is however, I suggest, and I may be out of order in making this late suggestion, a requirement to have as number one the order in council of 1763 to which reference is made in the new amended text in two places, I think, in the new Clause 24 and under the new Part II with respect to the aboriginal rights. I am just wondering, Mr. Chairman, whether it would be in order after dealing with the formal amendments that are before us to revert under the Section I consideration to an earlier numbered entry.

The Joint Chairman (Mr. Joyal): Yes. I have just consulted with our Clerk and I think you are right. In fact we should have for clarity by striking out item 21 on ge 19 and substituting the following item, that should be in my mind as you have just rightly said, much clearer and by changing the number 22 by 21 British North America Act, if this does answer your question.

Mr. Munro: I was thinking that under the very first item there is an earlier chronological act or in fact it is a proclamation which I think deserves mention in Schedule I as the very first item, and I was merely asking your guidance as to if you were to consider 3 and 22 now, would it be permissible to go back to I to consider that matter?

The Joint Chairman (Mr. Joyal): I think that to follow the procedure that we have had in the past clauses the Chair would have called usually the amendment in order so if you had the proposed amendment in relation with an addition of the new act in Column I it should have been made just now because of course what we are suggesting is renumbering from number 3 to number 22.

I understand that if you have a proposed amendment at this point what we can do is maybe stand this one and go with the one that you have in mind.

Mr. Munro: Thank you, Mr. Chairman. My suggestion is, and it appears to me at least to be self evident that because of the references to the Royal Proclamation of 1763 in the revised text of the resolution that there should be appended as part of the constitution in Schedule I the first item being the Royal Proclamation of 1763, which might require a more specific definition than just that. I might be of June 30, 1763 or whatever it is, just so there will be absolute clarity as to the designation.

The Joint Chairman (Mr. Joyal): I would like to invite at this point, you will understand why, the honourable Minister of Justice or a legal officer of the department, because that does involve a question of substance and at this point the Chair is not entitled to give you any idea on that.

[Page 103]

I can of course receive such a motion if rightly put in order, but I would like first to receive the comments of the honourable Minister of Justice.

Mr. Chrétien: Yes, I do not think it is necessary and really, we are dealing with the constitution of Canada and Canada was constituted in 1867, and it is for those reasons that any previous act in relation to this territory that was not a country before 1867 is not referred to and that it will—if we were to do that for this Royal Proclamation, we would have to do that, we could be asked to do that for other statutes or legislation or Orders-in-Council in relation to the situation that prevailed in Canada before Canada became a country.

So for this reason, my legal advisers say it is not needed and is not desirable either.

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

Mr. Munro: I do not want to prolong the argument, but it does seem to me, and if through you, I might address the Minister, it does seem to me that since this schedule was drawn up in the first instance and published, and even the amendments brought forward by the government, there has been an amendment of substance referring to the aboriginal rights and the only trace that there is, the only reference to my knowledge in history in the documents to the aboriginal rights, and specific reference is made in the amendment to the Proclamation, that there ought to be in Schedule I, the Proclamation as part of the constitution of Canada.

Mr. Chrétien: Nothing would prevent anyone wanting to define aboriginal rights to go and look at the Royal Proclamation of 1763, without having to have it appended to the constitution of Canada.

Canada started as a country in 1867 and this is the Constitution Act of Canada and I do not think that we should go beyond that because that could involve all sorts of other pieces of legislation in foreign nations, either in France or in England, in the previous period that could affect that situation, and I do think that it is not desirable to append to the Canadian constitution anything that occurred before 1867.

Mr. Munro: I accept the ruling of the law advisers to the Crown if they feel this is satisfactory, but I do think that the constitution will be defective by referring in the body of the resolution to a document that is not there in the Appendix.

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

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like to invite honourable Jake Epp on the amendment as proposed on behalf of the Official Opposition, I repeat it is the amendment numbered CP-26(1), Schedule I to Constitution Act, page 18.

Il s’agit d’un amendement portant le numéro P.C.-26.1, annexe I de la Loi constitutionnelle, page 18.

Mr. Epp: Thank you, Mr. Chairman.

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

[Page 104]

(a) striking out paragraph (a) of column 2 of item 16, and

(b) relettering paragraphs (b) and (c) of column 2 of item 16 as paragraphs (a) and (b) respectively.

I would like to ask Senator Tremblay to read this en français.

[Translation]

The Joint Chairman (Mr. Joyal): Senator Tremblay.

Senator Tremblay: Thank you very much, Mr. Chairman. Moved

[Text]

que l’annexe I du projet de Loi constitutionnelle de 1980 soit modifiée par:

a) suppression de l’alinéa a) de la rubrique 16, colonne II, page 18;

b) les changements des désignatins d’alinéa qui en découlent.

Mr. Epp: Mr. Chairman, very briefly, I believe actually with the renumbering the Schedule we have you will find it under 17, instead of 16, it is because of the renumbering, but I am still referring to 16, the original 16, but in case members are looking for it in the new section—or it is 16 as far as our drafting is concerned, in the original proposition.

Mr. Chairman, the salutation of the name “Newfoundland” is included. This amendment would in fact remove the name Newfoundland. I think there is general legal opinion, though not universal, but there is legal opinion that the removal of the name would in fact, or could in fact, affect Newfoundland’s court case regarding the offshore in view of the rights and privileges she enjoyed in 1949 at the time of Confederation, and it is for that reason to retain that name.

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

The honourable Minister of Justice.

Mr. Chrétien: Mr, Chairman, I looked into that matter and I do think that it was for a matter of clarification of the situation, and the best drafting possible was calling for the removal of “Newfoundland” there, but before making up my mind perhaps I should consult with my collegue from Newfoundland. I have two, Mr. Tobin and Mr. Petten. If they push me in the corner, I might decide “yes”, but if they do not mind I will leave it as it is.

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

Mr. Tobin: Thank you, Mr. Chairman.

Through you, Mr. Chairman, to the Minister, this is a matter that was raised some months ago by Mr. McGrath and by members of the Newfoundland Bar and I have had an opportunity to consult over the last few months fairly extensively, not only with your officials, Mr. Minister, but with members of the Newfoundland Division of the Canadian Bar Association.

I am told that by tidying up the Statutes of Westminster in this way by removing reference to Newfoundland as a Dominion probably would not in legal fact have any—that is the

[Page 105]

opinion of the majority of people that I have talked to, have any effect on any case, any reference to the Supreme Court with respect to offshore because removing a reference to Newfoundland as a Dominion will not alter the historical fact that Newfoundland was a Dominion.

However, Mr. Minister, I know, I am sure Mr. Minister, I am positive that you would not want to do anything that might even be perceived, you are that kind of a man, perceived as being out of the way with respect to Newfoundland’s potential future case before the Supreme Court of Canada

So, Mr. Minister, on behalf of my colleague Mr. Petten, and I am sure on behalf of all my colleagues on the government side, I would strongly urge, in fact push you into the corner to accept this amendment.

Mr. Chrétien: Well, I have only one condition. that is if we can get support of the Tories on the whole package, that will be even better. Is it a deal?

Mr. Nystrom: Mr, Chairman, is that a secret deal?

Mr. Epp: Mr. Chairman, summarizing this, I am willing to accept this amendment if the Minister then accepts the rest of our proposals.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): Before I call the vote on Schedule I as amended, Mr. Munro?

Mr. Munro: If I may, Mr. Chairman, again I would like to draw the attention to the Chair and I would like the Minister’s thoughts on this, too, as to certain other omissions in Schedule I, and one of them, they would come in, one of them, after 16, I suspect, 16 as numbered in the printed text, not as renumbered, which would be on page 18, because of the date, and it would be the Succession to the Throne Act of 1937, Chapter 16.

There would be four others in 1952, and their titles are, respectively, The Demise of The Crown Act; Role, Style and Titles Act; the Oath of Allegiance Act and The Governor General’s Act, all Canadian statutes.

The final one, and I think it would be useful if we were to just consider them as a package, would be The Letters Patent of October 1, 1947, which described the powers and prerogatives of the Governor General.

Those, to my way of thinking, constitute part of the Constitution of Canada. They are referred to and listed in Olivier’s British North America Acts and Selected Statutes, 1867 to 1962, as are many of the other citations in Schedule I.

There has been a selection, obviously, there would have to be a selection of documents to be included in Schedule I, but I think there were some selected omissions, and I was just suggesting to you, Mr. Chairman, and I could let you have if you like the list of them as I have them here so that they might be considered either as a group or individually, in their proper place.

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

[Page 106]

Mr. Chrétien: I would like to refer the honourable member to Article 52(2) where they say the constitution of Canada includes the Canada Act, the Act and order referred to in Schedule I, and any amendment to any act or order referred to in paragraph A or B.

That includes any one that can be found later on, if I can use that expression, in some isolated paragraph in one act that could be referred to eventually; it is covered there. When you use the word “includes”, and the way that “c” is drafted it means that if ever there is another thing related to the Canadian constitution as part of it, should have been there or might have been there, it is covered. So we do not have to renumerate the ones that you are mentioning.

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

Mr. Munro: That being the case, Mr. Chairman, I wonder why there were any acts listed in Schedule I aside from the fact that it does dispose of or otherwise become null and void by a simple act of parliament, not under a constitutional formula, constitutional amendment formula, and I am wondering whether that was the purpose of the selection.

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

Mr. Strayer: Mr. Chairman, that was certainly not the intention, nor is it I think the effect of the schedule the way it is.

The purpose was to identify the main instruments of the constitution of Canada but, as the Minister pointed out, Clause 52(2) is not an exhaustive definition of the constitution of Canada so that while we have listed certain things in the schedule which are clearly part of the constitution, that does not mean there are not other things which are part of the constitution.

I might say also that the list which you find in Schedule I is almost identical to the one which was developed at the time of the Victoria Charter in 1971 in consultation with the provinces, and at that time these were the acts and instruments which were generally regarded as being the central instruments, the ones that formed the core of the constitution and should be listed.

However, it is not an exhaustive list.

Mr. Munro: Am I to understand, then, through you to the Minister, that the Letters Patent outlining the powers and prerogatives of the Governor General are not part of the constitution of Canada?

Mr. Strayer: No, sir. I said just exactly the opposite.

Mr. Chrétien: You cannot have a better answer than that one.

Mr. Munro: I thought I was addressing it to the Minister.

Mr. Chrétien: My legal advisors, when they speak and I nod, that is my view, too.

Mr. Munro: Well then, I wonder if the Minister would say whether the Letters Patent outlining the powers and prerogatives of the Governor General do not constitute a part of Canada’s constitution.

[Page 107]

Mr. Strayer: If I get the negatives correct I think it is the view of the . . .

Mr. Munro: The Minister?

Mr. Strayer: Of the law officers and whether the Minister adopts that or not, it is our view that the Letters Patent are part of the constitution, yes.

Mr. Munro: How did they become part of the constitution, if I may ask the Minister this time? By convention? He has gone mum on us, has be?

Mr. Strayer: Because they relate to the definition of one of the offices of government, one of the central offices of government, and I would think in anyone’s understanding that would be part of the constitution.

Mr. Munro: But where is that mentioned in the constitution?

Mr. Strayer: It is not listed in the constitution, but that does not mean it is not part of the constitution.

Mr. Munro: So it is part of the convention; is that correct?

Mr. Strayer: No, it is part of the constitution.

Mr. Munro: How, by what means?

Mr. Strayer: Clause 52(2).

Mr. Munro: Clause 52(2) where, (a), (b), or (c)?

An hon. Member: (b).

Mr. Munro: It is not in Schedule I.

Mr. Chrétien: (c).

Mr. Munro: Any amendment to any act or order referred to in paragraphs (a) or (b), and it is in neither.

Mr. Strayer: The point of Clause 52(2) is that it does not purport to list the whole of the constitution.

Mr. Munro: I am sorry. Could that be repeated, please?

Mr. Strayer: The point about Clause 52(2) is that it does not purport to list exhaustively the whole of the constitution.

Mr. Munro: Well, what is the intent, then, if I may ask, of the government with respect to the Letters Patent?

Mr. Strayer: In what respect, sir.

Mr. Munro: Well, what future is held out for them? Are they a Canadian document? I wonder if the law officer of the Crown can tell me, is it a Canadian document?

Mr. Strayer: It is part of the Canadian constitution.

Mr. Munro: Is it a Canadian document?

Mr. Strayer: I do not know, sir.

Mr. Munro: It is signed by W. L. MacKenzie King.

Mr. Strayer: Well, not in any Letters Patent I have ever seen. He may have countersigned them but . . .

Mr. Munro: By His Majesty’s Command, W. L. Mackenzie King, Prime Minister of Canada.

Mr. Strayer: Well, Mr. Chairman, if the questioner wishes an answer, the Letters Patent are signed by the Sovereign.

[Page 108]

They may be countersigned by the Prime Minister, but the point of Letters Patent is that they are issued by the Sovereign as an appointment to the Governor General and defining the role of the Governor General.

Mr. Munro: The previous ones of 1931 were signed Manuel Shuster, and I do not think there was a King Shuster. The Crown is waning, is it?

However, the ones of 1947 are signed by His Majesty’s Command, by the Prime Minister of Canada, and were, if my recollection serves me correctly. drawn up in consultation with the Canadian Advisers to the Crown, 1949, they certainly would be under the provisions of the Statute of Westminster.

I am wondering why there is so much reluctance to have documents which quite obviously relate to the constitution, to be excluded from the constitution?

Mr. Chrétien: I think, Mr. Chairman, I think that the legal advisers of the Crown have given sufficient explanation about the situation and I am satisfied, as the Minister of Justice, that the point has been well covered.

Mr. Munro: Very well, thank you.

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

Schedule I agreed to.

The Joint Chairman (Mr. Joyal): I would like then to invite the honourable member to come back on the original text of the proposed resolution, on page 3 of the proposed resolution . . .

Mr. Chrétien: The King signed at the top of the document and the Prime Minister on the last line.

The Joint Chairman (Mr. Joyal): I am sorry, that debate is over now. The Chair has already invited honourable members to come back on the title of Schedule B, Constitution Act, 1980, on page 3 of the proposed resolution.

On that very title of the Constitution Act there is a proposed amendment, it is numbered or identified G-1, Schedule B, page 3.

Il s’agit d’un amendement au titre de l’Annexe B de la Loi constitutionnelle de 1980, dont la numérotation est G-1, Annexe B, page 3.

And I would like to invite Mr. Irwin to move the proposed amendment.

Mr. Irwin: Thank you, Mr. Chairman.

I wish to move that the proposed constitution act, 1980 be amended by striking out the heading “Constitution Act, 1980” on page 3 and substituting the following:

Constitution Act, 1981

[Translation]

I move that:

[Page 109]

[Text]

Que le projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la ribrique «Loi constitutionnelle de 1980», page 3, de ce qui suit:

«Loi constitutionnelle do 1981»

Amendment agreed to.

Title agreed to.

Mr. Epp: Point of order, Mr. Chairman.

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

Mr. Epp: Just before you run too fast, according to Bockstael speed, you are looking at the heading that you just completed. Can you give us the page reference first, please?

The Joint Chairman (Mr. Joyal): I am sorry, I did not hear you?

Mr. Epp: The page reference first for the heading?

The Joint Chairman (Mr. Joyal): Page 3. I called the heading of page 3.

Mr. Epp: Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): I would invite honourable members to take the proposed resolution.

I see that the honourable member has a copy of a certain number of amendments and I will show the document from the Chair so that it will be clear that when the Chair is inviting honourable members to turn a page, that we have the same edition of the proposed document and it is the following. I am sorry to lift it up but it is the best way of showing to honourable members what kind of document we are working on.

If the honourable members do not have a copy I will make sure they get one. I wish to apologize if sometimes the Chair has given the impression of being in a hurry. I certainly am not. If honourable members have a question or would like further information or explanation on a matter of procedure or on the question why the Chair has called one title before another, I would certainly inform honourable members to the extent of my knowledge.

I would like to invite honourable members to turn back to page 2, which is Schedule A, or Annexe A, commonly called the British bill.

On Clause 1—Constitution Act, 1980 enacted.

The Joint Chairman (Mr. Joyal): We are then on Clause 1 on the proposed Schedule A. On that very Clause 1 of Schedule A, the Chair has been informed of one amendment, numbered G-2, Canada Act, Clause 1, Page 2.

Il s’agit d’un amendement portant l’identification Loi sur le Canada, article 1, page 2.

If some honourable members do not have a copy I will make sure that the Clerk provides each member with a copy.

I would like to invite Mr. Corbin to move the proposed amendment to Clause 1.

[Page 110]

[Translation]

Mr. Corbin: I move, Mr. Chairman, that

[Text]

Que l’article 1 du projet de Loi sur le Canada soit modifié:

a) par substitution, à la ligne 20, page 2, de ce qui suit:

Constitution Act, 1981 enacted

“1. The Constitution Act. 1981 set out in”

b) par substitution, à la ligne 18 de l’annexe A, à la page 2, de ce qui suit:

Adoption de la Loi constitutionnelle de 1981

«1. La Loi constitutionnelle de 1981, énon-»

And in English, Mr. Chairman, I move that Clause 1 of the proposed Canada Act be amended by (a) striking out line 20 on page 2 and substituting the following:

Constitution Act, 1981

1. The Constitution Act, 1981 set out in

and

(b) striking out line 18 of Schedule A thereto on page 2 and substituting the following:

Adoption de la Loi constitutionnelle de 1981.

1. La Loi constitutionnelle de 1981, énon-

[Translation]

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

[Text]

Amendment agreed to.

On Clause 2—Parliament of United Kingdom not to legislate for Canada.

Mr. Bockstael: Mr. Chairman, I have a question, On the same page 2, Clause 2, there is mentioned the constitution act . . .

The Joint Chairman (Mr. Joyal): I am sorry, Mr. Bockstael, but I cannot answer your question at this point, because the Chair has not called Clause 2, The Chair has been informed of another amendment which should come between Clause 1 and Clause 2. I cannot answer your question at this point. When we are on Clause 2, the question you have in mind certainly will be in order, But at this point I do not wish to add more confusion to the debate.

Mr. Munro.

Mr. Munro: We are dealing with some very small corrections here. This may have been dealt with before, but on page 2 the words in large print “Annexe A” and “Schedule A” are both over the column in the French language. I am wondering whether there ought to be one which belongs over the English column, because I notice on page 3 “Schedule B” heads the English column and “Annexe B” heads the French column.

The Joint Chairman (Mr. Joyal): You will have noticed, Mr. Munro, that when the Chair read those words, I said “Annexe A”, and “Schedule A”. I understand there has been an inversion of the title, I answer on behalf of the honourable the Minister of Justice.

[Page 111]

Mr. Chrétien: It is because it is a British Act which will be passed in England. They do not pass their laws in our two official languages. They will attach an Annexe to the acts in French; but the act itself will be in English.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Munro, for your useful question.

I would like to call the next amendment in relation to Clause 1. It is an amendment you will find in your Amendments List identified as CP-27, revised, Clause 1, Canada Act, page 2.

Il s’agit d’un amendement portant le numéro P.C.-27 revisé, article 1, Loi sur le Canada, page 2.

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

Mr. Epp: I will ask Senator Tremblay to begin.

[Translation]

The Joint Chairman (Mr. Joyal): Senator Tremblay.

Senator Tremblay: Mr. Chairman, it is my privilege to move

[Text]

Que l’article 1 de la Loi modifiant la Constitution du Canada

[Translation]

At this stage, I think that is the proper wording since the title has not yet been amended.

The Joint Chairman (Mr. Joyal): I am in complete agreement.

Senator Tremblay: Therefore, I move

[Text]

Que l’article 1 de la Loi modifiant la Constitution du Canada soit modifié par:

a) substitution, à la ligne 21, de ce qui suit:

«conformément a ses dispositions sous réserve des articles 2 à 4 de la présente loi.

2. L’entrée en vigueur des parties V et VI de la Loi constitutionnelle de 1981, avec ou sans modifications, peut se faire par la proclamation prévue a son article 57:

a) si, après l’entrée en vigueur de la présente loi, cette proclamation est autorisée par des resolutions du Sénat et de la Chambre des communes et de l’assemblée législative de chaque province;

b) après cent quatre-vingts jours suivant l’entrée en vigueur de la présente loi, si cette proclamation est autorisée, à la fois, par:

(i) des resolutions du Sénat et de la Chambre des communes;

(ii) des resolutions des assemblées législatives d’au moins huit provinces dont la population confondue représente, selon le recensement général le plus recent à l’époque, au moins quatre-vingts pour cent de la population de toutes les provinces;

c) après deux cent quarante jours suivant l’entrée en vigueur de la présente loi, si cette proclamation est autorisée, après l’entrée en vigueur de la présente loi, à la fois, par:

[Page 112]

(i) des resolutions du Senat et de la Chambre des communes;

(ii) des résolutions des assemblées législatives d’au moins deux tiers des provinces dont la population confondue représente, selon le recensement général le plus recent à l’époque, au moins cinquante pour cent de la population de toutes les provinces;

d) sous reserve de l’article 3, après un an suivant l’entree en vigueur de la présente loi.

3. La proclamation prise en vertu de l’article 57 de la Loi constitutionnelle de 1981 et de l’alinéa 2(d) de la présente loi par laquelle les parties V et V1 de la Loi constitutionnelle de 1981 entrent en vigueur:

a) d’une part, a pour effet de modifier l’article 41 dont le texte devient le suivant:

41. La constitution du Canada peut être modifiée par proclamation du gouverneur general sous le grand sceau du Canada autorisée par des resolutions du Senat et de la Chambre des communes et de l’assemblée legislative de chaque province.

b) d’autre part, ne comporte aucune autre modification de la constitution du Canada.»;

4. l’entres en vigueur au Canada, avec ou sans modifications, de dispositions de la Loi constitutionnelle de 1981 autres que les parties V et VI,

[Translation]

In passing, Mr. Chairman, I would like to point out that in view of the final version carried this afternoon, a change in the numbering may be necessary. So, I leave that adjustment to you.

[Text]

peut se faire par la proclamation prevue a son article 57

a) après l’entres en vigueur au Canada des parties V et VI;

b) après l’adoption de ces dispositions conformement à la procedure applicable prévue à la partie V pour leur modification.

b) les changements d’article de la Loi modifiant la Constitution du Canada qui en découlent.

[Translation]

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

[Text]

The honourable Jake Epp.

Mr. Epp: Mr. Chairman, I would move that Clause 1 of the proposed Canada Act be amended by

(a) striking out lines 23 and 24 on page 2 and substituting the following:

and, subject to Clauses 2 to 4 of this act, shall come into force as provided in that act.

2. A Proclamation under Clause 57 of the constitution act, 1981 bringing Parts V and VI of that act into force in Canada, with or without amendments, may be issued

[Page 113]

(a) at any time after this act comes into force, if so authorized by resolutions of the Senate and House of Commons and of the Legislative Assembly of each province;

(b) at any time after the expiration of one hundred and twenty days after this act comes into force, if so authorized at any time after this act comes into force by

(i) resolutions of the Senate and House of Commons, and

(ii) resolutions of the Legislative Assemblies of eight or more provinces that have in the aggregate, according to the then latest general census, combined populations of at least 80 per cent of the population of the provinces;

(c) at any time after the expiration of two hundred and forty days after this act comes into force, if so authorized at any time after this act comes into force by

(i) resolutions of the Senate and House of Commons, and

(ii) resolutions of the Legislative Assemblies of at least two thirds of the provinces that have in the aggregate, according to the then latest general census, a population of at least fifty per cent of the population of all of the provinces; and

(d) subject to Clause 3, at any time after the expiration of one year after this act comes into force.

3. A Proclamation under Clause 57 of the Constitution Act, 1981 and paragraph 2(d) of this at bringing Parts V and VI of that at into force in Canada shall

(a) amend Clause 41 of that act to read as follows:

41. An amendment to the constitution of Canada may be made by Proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of Commons and of the Legislative Assembly of each province;

(b) contain no other amendments to constitution of Canada.

4. A Proclamation under Clause 57 of the constitution act, 1981 bringing any provisions of that act other than Parts V and VI into force in Canada, with or without amendments, may be issued at any time.

(a) after Parts V and VI of that act have come into force in Canada; and

(b) after the provisions to be brought into force in accordance with this clause have been authorized pursuant to the appropriate procedure prescribed in Part V of that act for amending those provisions.

(c) renumbering Clauses 2 to 4 and Clauses 5 to 7 respectively.

Mr. Chairman, I omitted one “and”.

[Page 114]

The Joint Chairman (Mr. Joyal): It certainly will not be omitted from the printing, Mr. Epp.

[Translation]

The hon. Senator Tremblay.

Senator Tremblay: Mr. Chairman, I was thinking of an earlier occasion when you remarked that the viewers, and even those around this table, must find the wording of some proposals terribly difficult to understand, although amendments are proposed in the appropriate legal fashion which circumstances dictate.

I imagine that the discussion which will undoubtedly follow my explanation will translate this extremely technical proposal into a language which will illustrate just how this proposed act would apply to concrete situations.

During my remarks, I would like to go beyond the technical language of the amendment in order to draw out the real meaning of this proposed change to the government resolution regarding the British act, as we call it, an act to amend the Constitution of Canada.

The real significance of our proposal becomes clear when it is taken in relation to the government’s proposed resolution.

First of all, the purpose of the government resolution is to patriate our Constitution. In that sense, it poses no problem. In fact, it has met with a very large consensus throughout the country; everyone agrees on the patriation of the constitution.

However, the resolution goes much farther than simply patriating the Canadian Constitution and breaking the last colonial ties which still bind us to Great Britain.

The government resolution actually uses this colonial link to ask Westminster to make substantial changes to our Constitution.

Now, it was obvious right from the beginning, as early as the beginning of October, that the proposed resolution contained these substantial changes.

Nonetheless, they have become increasingly apparent during the work of this Committee. They have become even more so since the amendment on natural resources was carried this afternoon. All one has to do is reread the title of the amendment. It introduces a sixth part into the original act which created Canada, the British North America Act of 1867, part entitled Amendment of the Constitutional Act of 1867.

In early October, the government resolution already proposed major changes to the Canadian Constitution. The government knew that because, in October, the title of the British Act was worded as follows: An Act to Amend the Constitution of Canada.

To refresh people’s memories, I would just like to recall some of the changes to the Constitution of Canada which were

[Page 115]

included in the initial version of the resolution at the beginning of October. First, there is the Charter of Rights, particularly Clause 23 which unquestionably affects the exclusive jurisdiction of the provinces over eduction.

There is also Clause 31, dealing with equalization. Then, ther is Clause 42, which allows the Canadian Parliament, by means of referendum, to overstep the provinces in amending the Constitution.

Finally, there is Clause 51 which, in repealing Section 91.1, removes the protection of their legislative jurisdictions, their rights or privileges, afforded them under the 1949 amendment.

All these substantive changes to the Canadian Constitution were already part of the government-proposed resolution in early October.

Since then, other changes have been made, the most noteworthy and most obvious being the one which resulted from bilateral dealings, and that is the amendment on natural resources.

Therefore, beyond the shadow of a doubt, the government resolution has not restricted itself to the necessary, but adequate measures which should be taken to patriate the Constitution. It is exploiting the colonial ties which still exist between Canada and Great Britain and taking advantage of patriation to make substantive changes to our Constitution.

Some amendments affect the very foundation of our federative system, which is obviously the case with Clause 42.

Others affect both federal and provincial powers, or at least, the application of those powers, without clearly explaining exactly to what extent provincial and federal jurisdiction has been affected, The Charter of Rights certainly fits into that category.

Still others amend power sharing or, more precisely, the distribution of legislative jurisdiction between the two levels of government. The amendment on natural resources, among others, certainly fits that bill.

It is not important to know the nature of these changes to federal and provincial jurisdiction, to know whether they favour the federal government or the provincial government.

What is important is to know whether the respective federal and provincial jurisdictions will be changed by the proposed amendments.

We all agree, I think, that federal or provincial jurisdictions would never be the same under the government resolution, that the balance between the two levels of government would be modified and that the changes in the balance of power may even, in some cases, tip the scales to the point where our constitution would provide for a permanent and irreversible supremacy of one level of government over another.

That is the government resolution.

[Page 116]

What would our proposal do to the government proposal? How would our amendment affect the British Act?

It would do precisely this:

First, it would ask Westminster to give up its power to amend the Canadian Constitution. Then, our Constitution would no longer be a British act, but a Canadian act.

Second, it would ask the British Parliament to grant the Canadian federation the power to amend its own Constitution.

Third, it would allow Canada, the Canadian federation, to choose its own amending formula to make the necessary changes to the Constitution.

Fourth, it would return to Canada, to the Canadian federation, the responsibility for making those changes after patriation of the Constitution. It would not ask Westminster to assume a responsibility incumbent upon Canada and the Canadian federation to make its own substantive change to the Constitution.

Those are basically the two main proposals which we must consider for patriating the Constitution.

[Text]

So, Mr. Chairman, through our amendment to the British bill, we now have two fundamentally and substantially different approaches to patriating our constitution.

This Committee must now decide which of these two approaches to choose.

And it is between these two approaches that the Senate and the House of Commons must choose in the coming weeks.

It is between these two approaches that the provinces and indeed, all Canadians, must choose.

This choice must be made now, in Canada, because it is choice for Canadians, not for anyone outside this country.

On what grounds should we make this choice?

On one side, it is our view that the proposed resolution ignores Canada’s federal nature. it does so by substantially altering the relationship between the two orders of government in Canada.

More than that, it is unilateral, because it excludes the provinces from the process of constitutional change.

As a result, the resolution is divisive. Speaking as :1 Quebecker, the government of Quebec has said “no” to the project; the Official Opposition in Quebec has said “no”; a great number of editorial writers, if not all of them, have said “no”; the people have said “no”, It is divisive now, and it contains the seeds of ongoing discord in the future.

On the other side, our proposal would restore the normal process of constitutional change. In doing so, it would give legitimacy to the project of patriation, and would make it consistent with the traditions of Canadian federalism.

As a result, it would remove division in the country by building on existing consensus, and generate nationale pride by

[Page 117]

having substantial changes to the constitution made in Canada.

[Translation]

All things considered, Mr. Chairman, for everyone involved, from the government to Canadian citizens, our proposal for patriation of the Constitution, as it compares to the government resolution, has a number of concrete implications.

First, our proposal offers the central government the opportunity to escape the dead end into which its unilateral action and its dealings on the side have led it.

Second, our proposal offers the provincial governments the opportunity to get out of the deadlock in which they also find themselves because the negotiation for patriation has been associated to substantial changes in the Canadian Constitution, changes which will be made in and by London.

Third, our proposal offers Canadian citizens the opportunity to combine their legitimate allegiances to both levels of government without having to resort to uncertain and artificial arbitration by referendum.

Finally, our proposal saves everyone in this country the humiliation of having a foreign power play referee to our debates and our internal conflicts.

Mr. Chairman, this committee is approaching the end of its work.

Thanks to our work, the government resolution will be changed in different ways and in different areas. However, as far as its general direction, its overall content and its basic approach is concerned, it will remain unchanged.

However, at the same time, this committee’s proceedings have allowed us, the people on this side of the table, to draft and hone a radically different proposal for patriating our Constitution.

In all likelihood, just a few days from now and, perhaps even in a few hours, the government resolution will have been supported by a majority of the members of our committee.

Consequently, ours will have been defeated by that same majority.

What will happen when our committee is no longer?

The government resolution will be supported by a majority in the Canadian Parliament just as it received majority support in this committee. Ours, I am sure, will be supported by the Canadian people and by most of its spokespersons.

Which of those two forces, a parliamentary majority on the one hand and public opinion on the other will win before irreversible and irremediable steps have been taken?

Once again, in all probability, the parliamentary majority will not leave the orbit marked out for it by the great computer a long time ago.

[Page 118]

As for us, we will continue to hope that the public and its spokespersons will succeed in persuading the computer in drawing up a program for the majority which better corresponds to the normal course of things.

[Text]

To conclude, Mr. Chairman, I want to quote from a column in today’s Globe and Mail edition, under the signature of Mr. Geoffrey Stevens, I could not express in any better way the meaning of the basic thrust of our proposal, as opposed to the government’s proposal. I quote:

Mr. Trudeau seems incapable of comprehending that it is one thing to give the people a constitution. It’s another thing to give them a constitution they can respect. A constitution they can respect because it was arrived at by a process they support. A constitution they can respect because it will be administered by leaders they trust. By a single act of statesmanship—withdrawing his Charter and giving Canadians an opportunity to approve it—Mr. Trudeau would demonstrate that he is not trying to pull a fast one. That he believes his constitution is worthy of public support. That he trusts the people. That they can trust him. Then, and only then, will it again be possible to do great things together.

[Translation]

Thank you Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, [Text] Senator Tremblay. I would like to invite honourable Bryce Mackasey, followed by Mr. Robinson.

Honourable Bryce Mackasey.

Mr. Mackasey: Thank you, Mr. Chairman. I want to thank Senator Tremblay for what I thought was a very comprehensive, precise, intelligent contribution to the Committee, explaining effectively I think the position of the Conservative party, one that we respect, one that has been consistent, one that has not altered since this Committee started.

Briefly stated, and I am going to speak more about our own position, our fundamental difference lies not in the concept of patriation. It does vary on the amending formula, and perhaps even more strikingly in the approach to a Charter of Human Rights.

I think it would be very wrong of me, partisan of me, unfair of me, to suggest that members opposite do not have the same commitment to a Charter of Human Rights as the people on this side of the table.

Where we differ in our perception and in our reality is whether or not that Charter should be enshrined now or whether or not it should be delayed until some time in the future as proposed quite legitimately and quite sincerely by the opposition, and particularly Senator Tremblay.

He said something very, I think, wise and conciliatory at the beginning of his remarks. He said Canadians in the future would have two fundamental approaches to choose from—I may be paraphrasing this—but I think that is what it is, and I agree. And I would like to spell out in the next 10 or 15 minutes, no longer, Mr. Chairman, our fundamental position and our approach to Canada.

[Page 119]

We all know, Mr. Chairman, that this is the greatest country in the world. We know that despite the strain on our federal system that few Canadians would opt to leave this great country. We recognize that those strains are a reflection of our federalism, and if they did not exist we would be in effect a unitary system. If the provinces did not have flexibility, we would not be a federation.

Surely, I have to say, Mr. Chairman, the BNA Act has been a remarkable success. It has provided the flexibility that has been needed at various times in our history.

What are we, the Liberals, trying to do to that fairly successful, important document that played such an important part in our lives, in our evolution, is to improve it. We are trying to remove those excesses of colonialism to which Senator Tremblay referred.

If we have to go to Great Britain in the next few weeks, few months, whatever, with our resolution, it is not the fault of Great Britain. I have no embarrassment to ask the Mother of Parliaments to amend a British Statute. I do however take exception to those who say in the next breath, we must amend our constitution in Canada, We are amending this constitution, Mr. Chairman, in Canada.

Some hon. Members: Hear, hear.

Mr. Mackasey: Not a single word, not a thought, not a principle, not an amendment, not a new feature of this resolution stems from input of anybody from Great Britain, or outside of Canada. For better or for worse this resolution which will be sent to the Mother of Parliaments of Great Britain reflects the collective work of the people around this table, and that is something we should be proud of.

As one of the aboriginal people met me in the hall the other day and said: you know, we will be able to participate in the next federal-provincial conference thanks to Senator Austin who worked assiduously on this particular feature. I was proud of Senator Austin because he worked and worked very hard to include it in this resolution, and nobody here can suggest that the recognition of the aboriginal rights was implanted in that document from outside of Canada. So it is a red herring, Mr. Chairman, to suggest for a moment that we are going somehow with cap in hand to Great Britain and say: please, would you approve our constitution?

In fact, we are going there and we are saying: we have here the amendments that we want, we are asking you to make that last step that is needed, which Great Britain suggested we could do many years ago, 1931.

Now, Mr. Chairman, yes, there is a fundamental difference in our approach from that recommended by the Conservative party. We want to get on with nation building, they want to postpone it.

[Page 120]

Mr. Chairman, Mr, Epp must take his new boy aside and tell him the rules of the game around here.

What we are suggesting, Mr. Chairman, is that we enshrine in the constitution an amending formula so that we can deal with that constitution when it comes home. The formula may not be perfect, it was selected because it reflected what transpired ten years ago in Victoria, and if it can be improved upon or made more acceptable to the provinces, that could be done in the next two years.

However, the amendment before us at this specific moment, Mr. Chairman, proposed by the Conservatives does not include one alternative to our amending formula. It proposes no less than three, and it is an attempt, really, Mr. Chairman, through a series of propositions to postpone what we are doing, to negate everything that it is doing; at best, at very best, Mr. Chairman, it would postpone the implementation of the Charter of Human Rights; probably, it would mean that we will never see it. And I say that be reviewing in the short time I have had their proposal, some of the proposed formula. Everyone of those formulae has been tried at one time or another in Canadian history and all have been rejected. The impasse we are in after 53 years reflects our inability to convince ten different premiers to agree unanimously to a formula.

What we have here, if we were to accept it, would be the most convoluted formula that you have ever—read it and see, Mr. Chairman. For instance, we would have a formula that would require unanimity in the first 120 days after proclamation; and on the 241st day we would change it again. No longer would you need eight or more provinces and 80 per cent of the population, we would drop it down to seven provinces and 50 per cent of the population. And then finally we would come all the way around to unanimity all over again.

Now, Mr. Chairman, what we have here, in other words, is a formula for more procrastination. Someone might say: what is the hurry? Why are we rushing? You are creating tensions in the country. Change always does, Mr. Chairman.

Ask the handicapped people if they think the time is overdue to recognize their particular problems at this time in history or do they think that perhaps we should wait another 5 or 10 or 53 years to recognize their particular problem. We wrote history, Mr. Chairman, in recognizing aboriginal rights. We are not attempting to define them, just simply saying to our aboriginal people: you have rights yet to be defined but at least we are prepared to recognize that they exist. Ask these aboriginal people who have appeared here, all 16 representatives of hundreds of thousands of Canadians if they would prefer, as they are Canadians, our formula or more postponement.

Ask the provinces in the less favoured regions, Mr. Chairman, if it is not time to recognize the equalization principle in the constitution.

Ask Mr. Corbin what his people think, the minorities in this country, if it is not time to have their basic educational rights enshrined in the constitution.

[Page 121]

Mr. Chairman, what is the case, what case can you make for more procrastination? is there a case? What is the case? Divisions, tensions; decided by a Gallup poll, Mr. Chairman?

An hon. Member: Goldfarb.

Mr. Mackasey: Goldfarb or whoever. Mr. Chairman, we are maturing as a nation and the maturity of any country is linked to the manner in which it treats its minorities, and that is one of the fundamental differences in our approach and that of the opposition. We want to get on with the job.

We know that it is not necessarily popular. We were not elected to do what is right, Mr. Chairman, and we intend to do what is right. I am suggesting that this amendment proposed by the Conservatives is very consistent with their approach from the beginning; postpone indefinitely the amendment to the constitution; postpone indefinitely the Charter of Human Rights; postpone indefinitely an acceptable amending formula; postpone progress, Mr. Chairman, because they are afraid to assume their responsibilities, because they are not sure of the degree of support in the country.

We, as Liberals, prefer to risk our popularity; secure in the knowledge that what we are about to do is right, and I would urge everyone in this Committee to look at this amendment closely and realize that it is nothing more than a formula for procrastination, for continued impasse, for a continuation for the next 53 years of the impasse that has characterized our federal-provincial meetings for the last 53.

Thank you, Mr. Chairman.

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

Mr. Robinson followed by honourable Jake Epp.

Mr. Robinson: Mr. Chairman, I intend to be very, very careful in my remarks today after the press coverage I received in my ringing denunciation of the Conservative proposal on Saturday last whan I was accused of having given the best Liberal speech.

Mr. Epp: That would be difficult.

An hon. Member: Shame, shame.

Mr. Robinson: I trust that Senator Austin will refrain from beaming today.

Senator Austin: I thought it was one of the best speeches I ever heard on the charter.

Mr. Epp: That you ever wrote.

Mr. Robinson: Mr. Chairman . . .

An hon. Member: Take him off the Committee.

Mr. Robinson: Mr. Chairman, as my good friend Bryce Mackasey said, in his usual laconic manner, the position of the Conservative party has been, if nothing else, consistent from the beginning, and I personally would like to say that I respect very much the wisdom which Senator Tremblay has brought to hour on our proceedings and I certainly understand, I have learned a great deal about the process of constitutional change by listening carefully to Senator Tremblay and I listened with

[Page 122]

great interest as he explained the purpose and the rationale of this amendment.

Rather than once again going into a protracted explanation of our position with respect to the proposed amending formula and our position with respect to the constitutional resolution, I would just like to ask Senator Tremblay if I may, through you, Mr. Chairman, a couple of questions to clarify the purpose and intent of the proposal.

Senator Tremblay, I take it that your proposal is essentially one which progressively would lower the requirements for consensus for an amending formula as time passed until ultimately, after a period of some eight months, there would be a requirement of at least two thirds of the provinces having in the aggregate population of at least 50 per cent of the population of all the provinces.

Is that an attempt to over time achieve a kind of consensus as broadly as possible?

[Translation]

Senator Tremblay: To answer that question of clarification, yes, what we want to do is first of all based on a perception of the provinces as responsible institutions fundamentally differing also from the way the provinces are perceived by the members on the other side of the floor in this committee.

I have noticed one thing since we began work in this committee. That is the number of times, and the number of times it was repeated, the number of times that the provinces were treated in a most cavalier fashion as though that other order of government was not an institution as responsible as the order of government represented by the parliament and the federal institutions.

As an undercurrent to most of our debates, there is this perception that the provinces are either minor governments or institutions whose leaders have no sense of responsibility.

To answer your question, yes, there is an approach, an attitude towards the provinces which says we accept them as responsible entities and that we have confidence in their sense of responsibilities, a sense of responsibilities which is as democratically rooted as can be the sense of responsibilities of the central government, which, also, has democratic roots.

Now, that is the background which it seemed important to me to point out, the background being that the provinces are perceived as institutions whose leaders are responsible and on that background we want to offer the provinces, within a period of one year, not within a period of two years followed by a referendum which could be held two years later, which means that it would take five years or just about for Canada to solve the problem it has of giving itself the instruments needed to mend our constitution, but what we are suggesting is a period of one year based on the formula which traditionally has been used in this country for those amendments which change the sharing of powers and . . .

Mr. Robinson: That means unanimity.

Senator Tremblay: That means unanimity.

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Within a period of one year we are suggesting that they try to agree unanimously, if at all possible, and, progressively. through different definitions of the majority which gives more and more opportunity for a consensus to be reached, especially if we take into account the fact that the amending formula we are suggesting as being preferrable, but I note this in passing, we are not imposing the Vancouver formula with our approach, that formula is a starting point, and that starting could be made part of the negotiations around other formulas or proposals which would be used to perfect what remains to be perfected with the Vancouver formula.

From that starting point, we are demonstrating the confidence we have in the sense of responsibility not only of the provinces, this time, but also of the federal government.

[Text]

Mr. Robinson: Mr. Chairman, with respect, I appreciate the very comprehensive and complete answer but I think I have the gist of your reply, Senator Tremblay, with respect.

[Translation]

Senator Tremblay: In that case, please put a more precise question because it did seem to bear on those things I have just mentioned and described.

[Text]

Mr. Robinson: I will be very specific, Senator Tremblay.

I am concerned about a province which appears to be treated as a province just like the others, and that is a province that you yourself have always indicated, and indeed in your opening remarks indicated should be treated with respect, and that is the province of Quebec.

I would like to take you through a scenario which gives me at least a great deal of cause for concern and I am surprised, frankly, that you would recommend this formula in view of the possibility of this scenario.

However, take a scenario in which the provinces, for example British Columbia, my own province, the Province of Quebec and the Province of Nova Scotia, three provinces strongly opposed a particular amending formula which the other seven provinces supported. They were strongly opposed to this, that is the largest province in Western Canada, the Province of Quebec and the largest province in the Atlantic provinces.

Well, according to your formula in the initial stages unanimity would be required, so Quebec’s interest would be protected. They could say no, we do not accept this formula, it is not good for the people of Quebec.

Then, as the clock ticked on, after 120 days the majority would go down and Quebec would say, they would start to get a little nervous and they would say: well, our population is still over 20 per cent of the total population so we will stop this because it is bad for the people of Quebec.

Well, Mr. Chairman, then the clock keeps ticking and, lo and behold, after 240 days, what happens then? According to my understanding of this formula, Senator tremblay, the protestations of the Province of Quebec and the Province of British Columbia and the Province of Nova Scotia would be in vain and you would be treating the Province of Quebec as a province just like the others and this amending formula would

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permit the strong objections of the Province of Quebec to be over-ridden after 240 days.

Senator Tremblay, how can you defend that as being in the interests of the people of Quebec?

[Translation]

Senator Tremblay: I do not quite understand what you mean by the interests of the people of Quebec. But we will accept that way of putting things.

What we are suggesting is a plan whose dynamics at least encourage consensus somewhere between unanimity and a majority of the kind we are suggesting and which corresponds to the one found in the Vancouver formula, seven provinces or two thirds and 50 per cent of the population, the plan we are suggesting clearly calls upon the widest consensus possible and, once the process has been brought to a close, if the minimum consensus we are suggesting is not attained. we will simply have to come to a conclusion, the conclusion being that in the state of mind the representatives of the people at both levels of the government perceive things, it would be best to come back to accepting unanimity even at the risk of including a certain rigidity in . . .

[Text]

Mr. Robinson: Senator Tremblay, we have not got to that stage, with respect. You see, we have not got to that stage, we have not come full circle to unanimity, that stage has not been achieved because seven provinces have told Quebec and have told the people of Quebec that: we do not care if you do not like this, we will accept it and we have 50 per cent of the population.

[Translation]

Senator Tremblay: If it does get to that, it will be over something, over some substance, over some kind of amending formula.

In this regard, we know that the Vancouver formula which does have a non-“opting-in” clause is a formula which has already been accepted by Quebec.

The hypothesis you are putting forth is that Quebec would continue to accept Vancouver while all the other provinces would refuse it from now on. However, we do know that the provinces have reached a consensus on that . . .

Mr. Robinson: No, no.

Senator Tremblay: That there remains some work to be done, we recognize that, but it is precisely on the momentum of the consensus in principle concerning the general orientation of the Vancouver formula that the real debate will take place.

[Text]

Mr. Robinson: Let me ask you this specific question, though, just so I understand and so that the viewers, particularly in the Province of Quebec, understand what it is you are proposing.

You do agree that through your amending formula, after 240 days it is entirely possible that even though the Province of Quebec objected strenuously, the Government of Quebec and the Province of Quebec objected to an amending formula which seven other provinces supported, that you are prepared to say: that is just too bad, that the interests of the people of Quebec must be submerged in the larger national interests? is that what this would achieve?

[Page 125]

[Translation]

Senator Tremblay: You are putting the question in the abstract. The situation you are describing would have to occur because of some kind of amending formula.

[Text]

Mr. Robinson: Formula, Senator.

[Translation]

Senator Tremblay: No, no. The consensus mechanism is described in our formula but the content, the object of the consensus is put forth as a working hypothesis through what we call the Vancouver formula, or another formula, the amended Vancouver or whatever other formula.

The problem you have raised will arise because of something and that something will be an amending formula. Consequently, we must review the analysis of the situation, get out of the purely mechanical side to link the level of consensus to the object upon which that consensus will or might bear, that is the content of the amending formula.

It is from that content that the discussions will be arising and we have very serious indications, that is the least that can be said, that the Vancouver formula, and that is why we are suggesting that as a starting point, that the Vancouver formula has already been the object of a consensus.

[Text]

Mr. Robinson: Well, Mr. Chairman, I understand what Senator Tremblay is saying now but with respect, Senator Tremblay, your answer to the question then surely must be, quite simply: yes; that the people of Quebec and the Province of Quebec would in those circumstances have their interest overridden if seven other provinces so desire; and I think if I were a Quebecois, which I am not, if I were a Quebecois I would be extremely concerned to know that all it would take is 240 days and then the veto of the people of Quebec would be overridden.

However, Mr. Chairman, I would like to turn to another question, another concern with this amending formula, and perhaps Senator Tremblay wants to think about that, but certainly that is my reading of his proposal.

I would like to turn to another question, Mr. Chairman, if I may, with respect to this, and that arises from Clause 4 and also, of course, generally from the previous paragraphs.

Senator Tremblay, where do the aboriginal peoples fit into this amending formula? About, well, a few days ago in perhaps one of the most significant decisions that this Committee took, it was agreed to affirm and recognize the rights of aboriginal peoples of Canada.

Perhaps I am not reading this formula correctly, Senator Tremblay, but it is my understanding that the only way that those rights would be recognized under your amending formula—because they are not in Parts V or VI—is pursuant essentially to unanimity. Is that correct?

Senator Tremblay: It is through the amending formula which will be agreed upon.

Mr. Robinson: But that applies to Parts V and VI, does it not?

[Page 126]

[Translation]

Senator Tremblay: No, no. Once the process we have described has led to an amending formula, it is that amending formula which will be used to entrench in the Constitution the substantive changes which we are suggesting be made in Canada and not through a foreign power.

[Text]

Mr. Robinson: Well now, Senator Tremblay, just a few days ago—I believe it was on Saturday—you were suggesting that aboriginal and treaty rights were so important that we should move quickly on them and that you exempted them from the general charter package, and the Conservative party was saying that should be sent to England right away!

Now you are saying, “No, no, we are not going to ensure aboriginal rights immediately; we are going to leave that subject to the vagaries of whatever amending formula we may finally end up with—the 120 days special or the 240 day special or unanimity.”

That is what you are saying. You are saying that in three or four days, all of a sudden aboriginal rights have slipped in importance to the Conservative party, and that the aboriginal peoples of this country are going to have to wait that much longer to achieve their rights.

[Translation]

Senator Tremblay: Our approach is that the substantive changes to be made within the normal process of the federation and should not be unilaterally imposed through a foreign power.

The position we have taken on the substance of things concerning the charter, concerning equalization, for example, has been to be in perfect agreement on the substance of those things as being part of a proposal coming from one order of government in the negotiations which are to be undertaken with the other order of government. That is the basic principle from which we are building.

Our position on the content remains exactly what it has been all during our work.

We have worked on the charter to improve it, we said we would work in that spirit but as far as the charter itself is concerned, we want to reinsert it in the normal process of a federation.

[Text]

Mr. Robinson: Thank you, Mr. Chairman.

Just to conclude, then, my understanding of this particular amendment has only increased my concern that it might actually receive any support from members of this Committee.

I say that with respect, because Mr. Chairman, what is being suggested here is an amending formula which could override the views of the people of Quebec, which treats Quebec as a province just like any other province; which would delay—one knows only how long, if unanimity is the formula which is ultimately arrived at—delay indefinitely a recognition of the rights of the aboriginal peoples of this country; which would kill, if unanimity is the formula, any hope for a charter of rights in this country; because we know, Mr. Chairman, where Sterling Rufus Lyon and some of the other Conservatives stand on that; which would kill the charter of rights;

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which would deny the hopes and aspirations of Canadian women, the handicapped and the other people who have appeared before us!

That is the effect, Mr. Chairman, of this amendment; and I suggest, taken in that light it must be rejected.

Some hon. Members: Hear, hear!

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

I would like to invite the honourable Jake Epp.

Mr. Epp: Thank you, Mr. Chairman.

I want to speak very strongly in favour of the proposal that Senator Tremblay has placed before this Committee.

I think it is important for those of us who do not come from the Province of Quebec, including Mr. Robinson, that we also understand who the person was who proposed this amendment.

Senator Tremblay has had long experience in his home province. I think many of us would agree that he was one of the architects of the quiet revolution of the 1960 and 1970s.

Additionally, it is he who has been the architect of much of the modernization in the Government of the Province of Quebec well before the present government came into power.

I think it must also be understood that he has had possibly a better sense of modern Quebec today than anyone else around this table.

I think, Mr. Robinson, when you placed your finger on the one point when you said to Senator Tremblay that he was making Quebec a province like any other province, one thing you are forgetting and that is, through the proposal which you support and which the government is imposing, it could be such that neither the Government of Quebec nor a single voter in Quebec would have any say whatsoever in the amending formula that will be imposed.

So, what you are suggesting is through a method which has been proposed by Senator Tremblay, whereby the citizens of Quebec, or, for that matter, any other province could have participation in the development and agreement of that formula over a staged period, your suggestion is if you cannot get that agreement you are willing to opt for a unilateral position to impose a formula which has not been accepted by the Province of Quebec, not accepted by the government or by the party in waiting in Quebec—the Liberal party has not agreed to the Victoria formula as well! Additionally, you would be setting up no system whereby any one resident of the Province of Quebec could vote on any formula.

That is your proposal, Mr. Robinson,

If you look at the option you are putting forward, it is not even unilateralism. it is simply an absolute position where no one within that province or, for that matter, any other province can participate directly.

That is the point that is important.

[Page 128]

Mr. Robinson: With respect, Mr. Chairman, I do not wish to interrupt Mr. Epp. But I believe, Mr. Epp, you are misstating the position I am supporting.

It is my understanding that under the proposed amending formula Quebec would indeed have a veto.

Mr. Epp: Quebec would have a veto under the proposed amending formula which you support; but what you are forgetting is that Quebec was the first province—right after 1971, the Victoria conference—to reject the agreements at Victoria, and, in fact, at the present time both the present government and the government in waiting do not accept Victoria.

While you say you are giving them a veto—which is correct—you are therefore by the very fact of the veto saying that that right should be sufficient to override their objections.

Mr. Chairman, I think; as members of this Committee who have been sitting here for some period of time will all agree, we have held our views on both sides of the table very sincerely and very honestly.

I am quite pleased that Mr. Mackasey said that. Because that is in direct opposition to what his leader said.

In a speech yesterday in Brandon, he in fact condemned all those who did not agree with him as not being interested in rights, not being interested in the future of the country, and, in fact, being a divisive force in the country.

I reject all three charges.

They were made in my home province, and I am glad that Mr. Mackasey has rejected those three charges by his very words today; because, Mr. Chairman, what Mr. Mackasey has said is that while he disagrees with our position—and we obviously disagree with his—what Mr. Mackasey has said tonight is that the views are held sincerely and that our party is just as interested in the charter of rights and the preservation and protection of rights as he professes his own party to be. Mr. Chairman, that is the important fact—those members who have worked around this table have no disagreement either with Mr. Mackasey or myself.

Mr. Mackasey: On a point of order, Mr. Chairman.

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

Mr. Mackasey: I want to substantiate what Mr. Epp said. I made that point very clear. But I said the difference was that we wanted to enshrine them now and not 53 years from now. That is a fundamental difference.

Mr. Epp: Mr. Chairman, that is the point I now want to come to; because I do not think Mr. Mackasey was right there.

Mr. Mackasey said that we were willing to delay. Mr. Chairman, how long would the delay be? The delay could be one year. Now, how long would you delay, Mr. Mackasey, under your formula.

The basic difference is not delay. That is not the basic difference, Mr. Mackasey. The basic difference is on the method of doing it. There you get to the crunch, because the

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basic difference is whether you are asking Canadians to do it, or whether you are asking the British to do it.

Some hon. Members: Hear, hear!

Mr. Epp: And, Mr. Mackasey, where the difference is is not when, and maybe not even as great a measure how, but who.

We believe that the Canadian people are mature enough, are sovereign and that they can do it rather than the British.

Now, Mr. Chairman, where do I get my proof from? The best proof I have is from documents, from this government—in fact, from the Department of External Affairs; documents which Mr. Strayer has seen as well, at least his name appears on them.

And when one checks the documents, one finds a difference between a public line of the government and the behind-the-doors line.

The public line is that the Prime Minister is willing to wrap himself in the flag and say, as he wraps himself in the flag, that he wants patriation, that he cannot go, for example, and speak to members, for instance, from Ghana, which was one example that I believe even the Minister of Justice has used; and that it is so embarrassing to speak to them and to say, “Gentlemen, our constitution is still in Britain”.

Let us bear in mind that it was not the British who asked for that. It was Canada back in 1931 who requested it, and it was as early as 1931 when the British had already sait that could be a difficult situation for them, and one that they did not want.

Mr. Chairman, what is the Secretary of State for External Affairs saying behind closed doors? What he is saying is not what the Prime Minister is saying in public. He is not saying that partriation is the burning issue among Canadians, and the burning issue with the Prime Minister and with the treasury benches and with the Liberal party.

He says, “No”. It is going to be a lever!

Where is the change between the Public statements and the documents? Is it not the responsibility of members of the benches to say the same thing both in private and in public? Is it not their responsibility?

Mr. Mackasey has had those responsibilities. I have had those responsibilities. We both took them in that way.

Mr. Mackasey: There may have been times, I must confess—since this is the time for confession—that my public statements to the press were not precisely what I had said in Cabinet. I must confess I am not perfect and I have made that mistake at times. I am sorry and apologize to the press if I have ever misled them on labour matters.

Mr. Epp: Mr. Mackasey, your confession is not only accepted, I would imagine, to members of this Committee, but I am sure you also have the benefit of clergy.

[Page 130]

But the point I want to make is that this whole operation smacks of manipulation.

Let us go back and look at the Manipulation. In the referendum campaign, what was said? Quebeckers were told very clearly by the Prime Minister, “Vote no, and I will guarantee you less centralized federalism”. How many times did we hear that? Time after time.

The minute the results of May 20 had come and gone, the Prime Minister reverted to his old stance.

There was manipulation regarding the advertising. We have seen more geese flying across our television than we see in northern Canada in any given year; using public money to do what? To manipulate the public.

We saw the Pitfield memo and the Kirby documents.

At the very time when the Prime Minister had said to the First Ministers of the country, “Come, let us reason together”.

They suddenly had a document of 60 pages in their hands which was the most devious means whereby to manipulate the First Ministers—a devious means to manipulate the Opposition; a devious means to manipulate the press and a devious means to manipulate the Canadian people!

That is the legacy that we are now addressing this evening.

Mr. Chairman, what happened? Now, when the Prime Minister comes before us and says that he wants patriation— and I do, too; and he says he wants an amending formula— and I do, too. And he says he wants a Charter of Rights—and I do, too; then we find, in these very days—in these very days—that what Ministers are saying in public and what they have been saying in private, and what they have been assuring us, that the correlation cannot be found. That is the juncture at which we are.

If the constitution is to have legitimacy and to have public support, then a government must say to the people, “This is our course of action because we believe it to be right”.

And, Mr. Mackasey, if you believe it to be so right, why does your government have to resort to these kinds of tactics?

Mr. Irwin, the other day. ..

Mr. Mackasey: Would you like to have an answer later?

Mr. Epp: I would be happy to have one.

Mr. Mackasey: You have one.

Mr. Epp: The other day Mr. Irwin said, “We”, that is the government, “trust the people”.

Mr. Irwin, if you trust the people, why do you try to manipulate them.

Mr. Irwin: On a point of order, Mr. Chairman. I do not wish to interrupt Mr. Epp at this time, but I will speak to it after he has completed his remarks.

Mr. Tobin: On a point of order, Mr. Chairman.

[Page 131]

The Joint Chairman (Mr. Joyal): Mr. Tobin, on a point of order.

Mr. Tobin: Mr. Chairman, I will be brief. I really hate to interrupt Mr. Epp in mid-stride, but I find it somewhat surprising to hear Mr. Epp accuse Mr. Irwin or any other member of this Committee of the very things he stated at the beginning of his remarks, that he would want no member of this Committee to be accused of; and that is acting not in goodwill or in any sense of manipulation, or of acting not according to goodwill or conscience.

I find your opening statements and your more recent remarks contradictory. I hope you will clarify for members of this Committee that you are not suggesting that members of this Committee have been manipulative or that they have been anything other than honest in their deliberations.

There is a contradiction in your remarks.

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

Mr. Epp: I am glad you have had that point of order, Mr. Tobin, because what I said at the beginning was that I believed Canadians want to seriously address the problems of the constitution this year. We have had a Minister here over the weeks—and I have said time after time, and I will say it again—who I believe sincerely tried to get agreement, consensus, partnership.

Mr. Chrétien tried. Many a Minister from the provinces tried; and I am convinced, as I have said before, we would have got that agreement if those gentlemen had been allowed to completed the job.

Today, unfortunately, much of that goodwill has been dissipated by the very actions I have just described.

So, Mr. Tobin, there is no consistency. I did not accuse this Committee. But I think you know perfectly well what I have been saying, and if not, then maybe you should have been listening,

So, what I am saying to you, is that if you do not accept that—and I will just go back to September 9, where the First Ministers broke up. I am convinced that the revelations of the Kirby document of those days seriously damaged any possibility of consensus and agreement. And I am not so sure if the Minister, in his more candid moments would not say the same thing!

Mr. Chairman, that is the difficulty we face as we leave this Committee and go into the House.

Until we get some of those conflicting statements between the public statements, what we now see revealed, and the private statements reconciled, I say to you Mr. Tobin, and to your colleagues, that it would be most difficult for us as members of the Official Opposition, representing many Canadians, in fact to believe that the sincerity which I know is held by many of you in the task that we have had, is held in the same measure by those who represent you on the government benches. When I say that, I am not speaking of the Minister of Justice.

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Mr. Chairman, what the government is saying is that there are only two approaches. One, is the approach of unanimity. I do not believe, Mr. Chairman, that in a modern federal state such as ours unanimity is the answer.

That is why I say I do not believe, if you take a look at the amendment to the British bill tonight—I say to Mr. Robinson with sincerity as well that you need all that time to get agreement on the basic package.

Mr. Nystrom was there as well throughout the summer. I am sure he shares the view that, given a little more time and flexibility and goodwill, agreement could have been found. For those of us who saw it, you will never convince us otherwise.

But the one point you make is that unanimity is the only answer, or unilateralism. I suggest there is a third, and the third is partnership. And that partnership between the federal government and the provinces has always been the way, although negotiations have been hard, although negotiations have often been difficult, there is not an arrangement in Canada today that has not been made through negotiation, by consensus, by agreement.

And for the first time, on the fundamental law of the country, you are asking us and you are telling Canadians, we might not be popular, even though, Mr. Chairman, I find that just a little comical hearing from the Liberal party: we do what is right, we do not worry about public opinion; but I will leave that for another day and another forum. You are saying to us that you are going to do it regardless of what Canadians say, no matter in what number or from where.

I know Mr. Robinson is sincere when he mentions the Quebec situation because he has mentioned it a number of times, and I know him to be sincere in it. But if you take that argument a little further, Mr. Robinson, you run into even greater difficulty with that argument when you find that the mass of Canadians, although they support various elements of these proposals, for example the charter and equalization just to give you two, they do not support the unilateral action, and I do not think you could find a region in the country or a poll or a public meeting where Canadians, when given the option and the facts, are supporting that unilateral action.

Mr. Chairman, I believe that unilateral action, such as proposed by the federal government, is going to exacerbate and lead to division, the measure of which we possibly have not seen in the country before.

I know the Liberal party says to their caucus members: fellows, hang in, it is no different than the flag debate, and once the flag debate was over, people rallied around the colours. Mr. Chairman, this is not the flat debate. That was a symbol, and a lot of people agreed with that symbol, and I do too, and did then as a very much younger person when that debate took place.

But what we are debating today is not only a Charter. What we are debating today is how will the provinces, how will the

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federation function, and you are not resolving by a single stroke—Mr. Chairman, if I could call 10:30 . . .

The Joint Chairman (Mr. Joyal): Being 10:30 p.m., this meeting is adjourned until 9:30 tomorrow morning.

[Translation]

The meeting is adjourned.


WITNESSES

From the Departure of Justice:

Mr. Roger Tassé, Q.C., Deputy Minister;
Dr. B.L. Strayer, Q.C., Assistant Deputy Minister, Public Law.


Other Issues:

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50 51 52 53 54 55 56 57

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