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CONFIDENTIAL

DISCUSSIONS WITH PREMIERS RE “PATRIATION” OF CONSTITUTION

New Brunswick — Premier Hatfield — July 3, 1975

Meeting — 11:30 — 1:00; lunch to 3:30. Present: Premier Hatfield;
Marcel Massé (Secretary to Cabinet of N.B.), Frank Carter
and self.

Presentation — Outlined positions taken by Premiers chronologically.
At end, Mr. Hatfield asked what the federal government‘s position
was. I said that the reactions and positions of Premiers had not
yet been put to the Cabinet: simply the original objection of
“patriation” on the basis of the Victoria amending formula. So
far as the Prime Minister was concerned, I thought Mr. Lougheed’s
two points were acceptable, as were Mr. Bourassa’s constitutional
guarantees in principle. I thought the addition of “regional
disparities” would also be acceptable if it was the Victoria
formula (Part VII). I had no idea whether it would be acceptable
to add anything such as Mr. Campbell wanted.

Discussion — Mr. Hatfield began by saying forthwith that the
additions proposed on the Supreme Court and to guarantee French
culture caused difficulties for him. The original, bare proposal
had been O.K. but the expanded plan was more of a problem. The
points he made were:

1. Supreme Court — He reminded us that he had approved this
idea at Victoria. He had accepted it then only as a
necessary price to get the charter. He was still opposed
to it and had made that clear at the Interprovincial
Conference in Toronto last fall. Part IV brought
judicial appointments into discussion at a political
level; implied acceptance of the idea that judges
were open to bias because of the agency appointing
them; and would add an element of cynicism to the
attitude toward the Courts. I said I respected his
arguments, but reminded him that at present the
Supreme Court was almost unusable for jurisdictional
cases between the federal government and Quebec (or
Newfoundland). The sense of bias was real. Mr. Hatfield
agreed; deplored it; but still disliked the remedy.
He felt it would do little to help — if anything.

2. Constitutional Guarantees — Mr. Hatfield said anything
of this kind would resurrect difficulties for him.
He asked whether such guarantees would “enshrine” the
N.B. Official Languages Act constitutionally. I said
not in the kind of concept that was being thought
about (which I then outlined to him). He said he
would like to see the N.B. Official Languages Act

given constitutional protection so it could not be
repealled by a later legislature. I asked if he
wanted the same for the Federal Official Languages
Act. He seemed a bit surprised that it did not have
any constitutional protection now. I said I saw
very real difficulties about any attempt to do what
he proposed for N.B. If for N.B., what about Quebec?
How would any proposal to bind a province be accepted
there? What about Bill 22?

This led Mr. Hatfield to another aspect of his problems
with the “constitutional guarantees”. Anything about ,
the French culture, in the wake of Bill 22 which had been
very embarassing to him with its “French only” official
language, would resurrect that problem. If there had
to be any “guarantee” it would have to include both
languages. He was clearly quite unhappy about the
idea, not because of any objection to the protection
of the French culture, but because it would revive
the controversy over two official languages in N.B.
I said we would look at what might be formulated to
see how far it could go to meet his concerns — of both
types.

3. Regional Disparities — Mr. Hatfield agreed with Premier
Regan that, if anything went in on “French culture”,
that would have to be something on regional disparities.
He thought he would also favour the sort of thing
Premier Campbell wanted: a more specific and
enforceable provision, especially about provision for
the level of government services.

4. Amending formula — Mr. Hatfield said either Part IX
or a modified version to meet Mr. Lougheed‘s points
would be acceptable to him. Despite mention in his
letter of May 23 to the Prime Minister, he did not
refer to the proposal to omit Articles 53, 54 and 55.

5. The general exercise and objective — Mr. Hatfield said
he much favoured “patriation” and “repeating the BNA
Act” so that we had our own constitution in our own
control. He felt the federal government had not made
clear the importance of it. There were all kinds
of jurisdictional conflicts — with Alberta on resources;
on communications; off-shore minerals — we should be
able to deal with changes to clear such things up.
The agreement should be made.

To achieve “patriation” with capacity to amend,
everyone would have to be prepared to pay a price.
He seemed to imply that he might be resigned to the
price of Part IV and some sort of “constitutional
guarantees”.

6. Tactics and Handling — Mr. Hatfield said, in reply to
a question by me, that he thought a conference of
First Ministers would be needed before the matter could”
be considered ready for action with the legislatures.
It could be a “coronation” rather than a conference to
discuss.

He referred to the meetingsof officials in 1968-1971
with approval. “Meeting of that kind might be useful.

I mentioned Mr. Campbell’s doubts about Mr. Bourassa’s
attitude, based on comments by him at St. Andrews (the
meeting of Premiers + Governors of the New England States).
Mr. Hatfield confirmed the comments. Mr. Bourassa had
indicated his concern about raising this question amid
the problems of labour, the Olympics, etc.