Document Information

Date: 1978-10-30
By: Secretariat of the Conference
Citation: Federal-Provincial Conference of First Ministers on the Constitution, Summary Record of Proceedings, Doc 800-8/067 (Ottawa: 30 October-1 November 1978).
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CONFIDENTIAL

ENGLISH VERSION

CONFIDENTIAL

Document No. 800-8/067
December 1, 1978

Opening of the Conference

1. The Chairman welcomed the First Ministers and their delegations, following which the Secretary outlined the administrative arrangements for the meeting.

2. First Ministers adopted the agenda as proposed (see Appendix A).

Agenda Item 1: Introductory Statements

3. The Prime Minister of Canada placed emphasis upon the urgency of constitutional reform, and upon the need for First Ministers to succeed in this endeavour after so many failures in the past. Though some might question why First Ministers were meeting on the Constitution when serious economic problems remained to be resolved, Mr. Trudeau wished to point out that this was the first First Ministers’ Conference on the Constitution since the failure at Victoria in 1971. Constitutional reform had, moreover, become more than ever a matter of urgent necessity, and recent statements by a number of provincial First Ministers testified to the fact that they too considered this an urgent matter requiring the attention of governments. In Mr. Trudeau’s view, constitutional reform was required because Canada was a divided country and, as such, was economically weak. Economic progress required a measure of certainty and political stability, and it was therefore urgent to secure that stability through clearly drawing up the rules of the game in the Constitution. There was also a question of urgency in light of the deadline imposed by the referendum in Quebec. Furthermore, Mr. Trudeau felt that after 111 years, there was also a question of national pride involved in patriating the B.N.A. Act and in developing a truly Canadian constitution.

4. Turning to the question of whether First Ministers could succeed in this endeavour, Mr. Trudeau felt that the provinces had impeded this effort in the past and suggested that the ‘ball was now in their court’. Constitutional reform could, he said, be logically divided into three tasks: patriation and an amendment formula, the division of powers, and the reform of central government institutions. The federal government and the provinces had on nine successive occasions since 1927 tried to patriate the Constitution and develop an amending formula, but each of these efforts had failed because of the insistence on unanimity. Mr. Trudeau wondered if First Ministers would now display the leadership required to accomplish this task. He suggested that, if the Quebec government was concerned with ‘colonialism’, it should seek to ‘decolonialize’ Canada before proposing the ‘decolonialization’ of Quebec. As regards the divisidn of powers, Mr. Trudeau noted that provinces were seeking to diminish federal powers, and one province, Quebec, was asking for the transfer of all powers to the province. Although this led him to wonder whether this question could be successfully resolved in the time available, he considered certain of the provinces’ jurisdictional demands to be legitimate and reasonable and felt that some progress could be made. He noted, however,that he would also be proposing a list of powers which could be transferred from the provinces to the federal government. Turning to the question of the

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reform of central government institutions, the Prime Minister drew attention to the fact that sections 91(1) and 92(1) allowed the federal government and the provinces respectively to amend their own constitutions. The federal government had sought in Bill C-60 to amend its constitution to entrench fundamental rights and language rights at the federal level, and to modify central institutions to ensure, among other things, regional representation at the national level. Bill C-60 was, Mr. Trudeau stressed, not carved in stone and could be modified, however he questioned the position taken by the provinces in the Regina communique which suggested that unanimity was required before the federal government could proceed with this matter. In light of the opposition from Quebec, Mr. Trudeau doubted if this was a realistic demand. He expressed the hope that First Ministers would not once again fail to achieve constitutional renewal.

5. The Hon. William Davis, Premier of Ontario, commented on the Prime Minister of Canada’s opening remarks. He suggested, first, that one should not leave the people of Canada with the impression that the constitutional question was a major source of the country’s economic problems, for those problems were essentially rooted in basic economic, rather than constitutional, matters. Second, he wished to point out that the provincial First Ministers had not, in Ontario’s view, suggested at Regina that total unanimity was necessary to achieve constitutional reform. Their major concern, he explained, was rather that the process of constitutional reform be more comprehensive than that envisaged by Bill C-60, and that sufficient time be allocated to this endeavour rather than the fixed timetable proposed by the federal government. Ontario shared the federal government’s view regarding the urgency of constitutional reform and, even though the economy rather than the Constitution was the major priority of most Canadians, felt that First Ministers should be able to deal with both matters simultaneously. In a country as diverse as Canada, the Chairman had a responsibility, Mr. Davis felt, to attempt to express the consensus of the First Ministers, and he hoped that there would be no attempt to impose solutions.

6. Ontario was participating in constitutional discussions not to balkanize or to centralize but rather to achieve a reasonable plan of constitutional change. Though it had views on the division of powers, it would not be a party to the dismemberment or weakening of the Government of Canada, particularly as regards the latter’s economic and fiscal responsibilities. Constitutional proposals, it felt, should meet the tests of (a) whether they strengthened and improved intergovernmental relationships in Canada, (b) whether they had the support of Canadians across the country, and (c) whether they were in fact workable. The history of Canada’s attempts at constitutional reform disclosed, in Ontario’s view, that constitutional change was a national priority and not simply a federal preoccupation. A clearer idea of what would and what would not work was emerging, and there was now a better understanding of the interests and concerns of each First Minister. Constitutional reform would have to be comprehensive and could only be achieved through a reasonable consensus of the eleven governments. Consensus, Ontario stressed, did not mean unanimity. Differences could not simmer indefinitely and the province therefore believed that accommodations and commitments should be made within an agreed and foreseeable time frame. Once the process of constitutional reform had begun, Ontario felt that the many proposals put forward should be considered, including that of the Task Force on

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National Unity, and it hoped that no untoward surprises would be announced once negotiations had started in earnest.

7. A suitable constitutional arrangement should, Mr. Davis stated, seek to reduce the frustrations caused by unequal economic development across the country. It should also accommodate the reasonable requirements of Frenchspeaking Canadians to ensure the development of their language and culture. The focus of this development would be predominantly, but not exclusively, in the Province of Quebec. A new constitutional arrangement should also recognize Canada’s multicultural heritage and would have to respect the rights of the native peoples. It should in addition deal with ways to improve and encourage cooperation among the various parts of the country so that governments could work together or receive a fair hearing when differences had to be arbitrated. Finally, it would have to modernize the B.N.A. Act while being careful to retain those aspects of it which had proven their worth over the years. There were eight areas of the Constitution to which Ontario attached high priority:

– selective but significant adjustments to the distribution of powers to ensure that each order of government is given those responsibilities which it can best accomplish;

– new practices in intergovernmental consultation, including their institutionalization if need be;

– a process by which provinces can meaningfully contribute to the appointment of judges of the Supreme Court of Canada;

– the assurance that individuals, goods, capital and services can move freely across the country; the expression of individual human rights as identified in the 1971 Canadian Constitutional Charter;

– the rights of parents of official language minorities to have their children educated in the minority language where numbers are significant;

– an amending formula involving a significant majority of legislative bodies across Canada; and

– the Queen as Canada’s Head of State and as the basis of executive authority.

8. The Hon. Rene Levesque, Prime Minister of Quebec, noted that the Conference had not been called only to deal with the federal proposals found in Bill C-60, and suggested that the various proposals for constitutional change being put forward failed to respond to Quebec’s real aspirations and concerns. Though it was clear that other provinces also had legitimate concerns with the current constitutional arrangements, Quebec’s concerns were of a fundamentally different nature since they derived from the fact that the Quebec government represented one of the country’s two major collectivities. While French Canadians had, at the time of Confederation, conceived federalism as the guarantee of their political autonomy, it was clear that, to English-speaking Canada, Confederation had represented the establishment of a new nationality whose development required a strong central government, hence the historical opposition between Quebec and

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Ottawa. Though times had changed and other provinces were now also moving towards a more decentralized position, Mr. Levesque emphasized that Quebec society was evolving and would not for long support the constraints on its development imposed by the present political system. The Quebec government was the national government of Quebecois and as such had always sought to defend its autonomy from federal encroachment and to recuperate all the powers necessary to ensure the development of Quebec as a distinct society. Ottawa’s negative attitude to these aspirations had in large part contributed to the political movement in Quebec which was putting federalism itself in question. Since the federal government continued to hold this attitude, Mr. Levesque doubted that any significant breakthroughs would be made in the exercise which was now beginning.

9. In light of these considerations, Quebec felt that its principal contribution at the Conference would be to maintain the historical continuity of the positions taken by successive Quebec governments in the past, and Mr. Levesque tabled a document outlining what these positions had been. He noted that, since times and circumstances had changed, the intention was not to support the position of previous governments as regards specifics, but rather to continue the general trend of these positions, that is, to defend the constitutional rights of Quebec against centralization in Ottawa. This position was not only supported by the experience of previous Quebec governments, but was also the position of all parties in the National Assembly and represented the views of hundreds of groups and associations in Quebec. Mr. Levesque wished to make clear, however, that if First Ministers should agree at the Conference on substantial changes to the division of powers, particularly those which had met with the unanimous approval of the provinces, Quebec would not refuse to accept such modifications. The province felt that the onus for initiating such changes now rested with the federal government.

10. Mr. Levesque also wished to make it clear that there was no question of dispensing with the referendum, nor was there any question that his government would cease to put forward the sovereignty-association option. In his view, this option represented the only truly modern and logical way to reorganize the relationships between the two peoples of Canada. He emphasized that sovereigntyassociation did not, despite statements to the contrary, espouse isolationism for Quebec since the reverse was true. Quebecois wanted more than ever to be open to their neighbours. If Quebec sought to replace federalism with another form of association, it was precisely because it wished to ensure, while respecting its vital interests, the free movement of persons and goods which was essential to the continuation of the English Canadian community. Noting that negative attitudes and prejudice were to neither party’s benefit, Mr. Levesque called for both sides to put aside their preconceived ideas, and simplistic judgements, and was confident that if this were achieved it would be possible to cooperate to fulfill the tremendous possibilities being stifled by the present system.

11. The Hon. John Buchanan, Premier of Nova Scotia, emphasized that the Constitution was far more than a legal document since it was the heart of the Canadian union, the foundation of its parliamentary system under

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the Crown, and the bearer of over four hundred years of collective efforts, the symbols and institutions of which could not be treated lightly. Nova Scotia supported constitutional revision and was determined to make it succeed, however it considered it unrealistic to suppose that the country’s constitutional problems could be resolved in three days and suggested that the Conference be seen as part of a process. Constitutional review could not, Mr. Buchanan stressed, be undertaken faced with deadlines, nor could one part of the Constitution be considered in isolation from other parts. This task could only succeed through agreement, and not through unilateral action by any one party. Nova Scotia outlined the following positions with regard to constitutional revision:

– the province supported a constitutional monarchy and strongly felt that there should be no change in the role of the Queen;

– a charter of rights and freedoms should not be included in the Constitution unless it applied with equal force to all Canadians wherever they reside;

– Nova Scotia supported direct appointment of provincial representatives to the Second Chamber;

– the principle of equalization should be recognized as a fundamental basis of Confederation; regional economic development, Mr. Buchanan noted, should be seen as a process which would eventually eliminate equalization payments, and, in this regard, he felt that transportation policy should be considered a development tool;

– though Nova Scotia was prepared to examine the division of powers, it cautioned that, since powers entailed responsibilities, a transfer of powers would have to be accompanied, at least for the less affluent provinces, by a transfer of additional fiscal resources; the federal government would therefore have to maintain sufficient jurisdiction and taxing and spending powers to carry out its fiscal and economic responsibilities.

Noting that previous attempts at constitutional revision had failed largely because of an insufficient will on the part of the participants, Mr. Duchanan was confident that if all really wanted this process to succeed, it would do so.

12. The Hon. Richard Hatfield, Premier of New Brunswick, stressed the need for all First Ministers to make a commitment to come to terms with the real constitutional problems of the country and to resolve to do everything possible to ensure success. New Brunswick felt that previous efforts to achieve constitutional reform had been of questionable quality and had not been accompanied by the sense of urgency now evident. Mr. Hatfield stated that he was extremely sensitive to the fact that constitutional reform was a matter of national pride, and regretted not only the failure in Victoria, but also the fact that constitutional discussions had not been pursued, as he had suggested, in the years immediately following the Victoria Conference. Given the importance of these matters, he considered it inappropriate to impose deadlines and felt that First Ministers should be prepared to meet as often as required to arrive at a solution. The referendum in

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Quebec was not a deadline in Mr. Hatfield’s view, and it would in any event be unrealistic to suggest that a finalized Constitution was required for the purpose of that referendum. Noting that the Prime Minister of Canada had referred to Canada as a divided country, New Brunswick suggested that these divisions were a vital part of the Canadian reality, and that it had always been the intention in Canada to recognize and to work within these divisions rather than to seek uniformity across the country. New Brunswick considered constitutional reform to be extremely important and emphasized that with the proper commitment on the part of all governments, progress could be made.

13. Mr. Hatfield noted that his prepared text outlining his province’s position had been tabled for the record, and indicated that he was opposed to the regionalizing of the Senate and the Supreme Court. These should remain national institutions. New Brunswick was committed to the maintenance of a strong central government, with the powers needed to ensure the redistribution of wealth in the country. The principle of equalization should, it suggested, be enshrined in the Constitution.

14. The Hon. Sterling Lyon, Premier of Manitoba, expressed concerns regarding the Government of Canada’s constitutional proposals, voicing strong objections to the inclusion of a Charter of Rights and Freedoms in the Constitution. In his view, such a charter did nothing to enhance the rights presently enjoyed by Canadians, since they already benefited from more rights than could possibly be placed in a charter, nor did it do anything to attack the real constitutional problems of the country. If anything, it tended to subvert the law-making ability of elected Parliaments by placing this ability in appointees. Noting that the Charter proposed in Bill C-60 was similar to the federal proposals of 1968, Mr. Lyon suggested that things had not changed a greal deal in ten years, and that it should come as no surprise if provinces continued to oppose such a proposal. Manitoba felt that if the federal government would agree to abandon the condition that a charter of rights and freedoms be entrenched in the Constitution, it would do much to create a better atmosphere for consensus during the constitutional review. As for language rights, the province was of the view that these could be secured through an appropriate amendment of section 133 of the B.N.A. Act.

15. Commenting on the Prime Minister of Canada’s opening remarks, Mr. Lyon submitted that Mr. Trudeau was using exaggerated language when he portrayed the economic and political situation of the country, and when he referred to Canada’s colonial status. He seconded Ontario’s observation that the provincial First Ministers had, at the Regina Conference, not so much insisted on unanimity as upon consensus. Manitoba strongly objected to the reference in the federal proposals that Canada’s Constitution had little educational value and did not inspire patriotism. Mr. Lyon reminded the Conference that thousands of Canadians had fought and risked their lives through two world wars to safeguard the democratic institutions of the Canadian Constitution. He moreover considered it misleading to suggest that Canada had not developed uniquely Canadian institutions, since Canadians had modified and adapted the traditions bequeathed by the mother countries of the two founding peoples so as to render them distinctively Canadian.

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16. Mr. Lyon confirmed his province’s support for a constitutional review process and submitted that the Conference had to launch that process by clearly outlining the priorities and principles which were to apply. He suggested that basic principles should be, first, that there was no place for the unilateral imposition of deadlines in the process; second, that the process not denigrate or ignore the traditions of the country; and third, that it be recognized that the current constitutional arrangements had been comparatively successful in practice, and that the onus was therefore on the advocates of change to justify change. Manitoba proposed that, in order to launch the constitutional review process on a sound basis, the Conference agree to five basic steps:

– that the exercise being launched was not an exercise in replacing the Constitution but rather an exercise in improving it;

– that the Conference identify those areas of the Constitution which were basically sound, and those areas which required urgent improvement;

– once priorities had been determined, that the process consider the various proposals for constitutional change to determine which could apply;

– that the amendment procedure be considered a concurrent priority in the process; and

– that First Ministers agree to put aside those items which failed to meet the test of urgency or of general consensus or support.

Manitoba was vitally interested in maintaining the unity of the country and was confident that if the constitution.ll review process were launched on this basis that Canada could achieve the improvements needed to preserve and enhance Canadian unity and the general welfare of the national community.

17. The Hon. William Bennett, Premier of British Columbia, agreed with the Prime Minister of Canada that the time had come to revise the Canadian Constitution. He did not, however, agree with Mr. Trudeau’s portrayal of past efforts at constitutional revision, nor with the time frame proposed. The constitutional review process must, he suggested, involve genuine consultation, since unilateral action was no way to write a constitution. Although he recognized that the timetable for the process could not be open-ended, neither could it be overly rigid and a reasonable time frame would have to be devised.

18. British Columbia proposed that two basic principles be followed in constitutional reform: first, that each order of government be given clear responsibility for those matters with which it can deal in Lhe most accountable and efficient manner; and second, that it be recognized that the institutions of the national government must reflect the regional diversity of Canada. Mr. Bennett stressed the importance of modifying central government institutions to ensure adequate regional representation in national decision-making. In his view, current national institutional structures had had an inhibiting effecton the country’s economic performance and were characterized by deep-seated structural deficiencies which had contributed to the dissatisfaction with Canadian federalism. Moreover, though British Columbia recognized the need to alter and modernize the division of powers, it opposed wholesale decentralization and favoured instead a course which, by

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providing regions with a strong voice in national institutions, would serve to strengthen and unify, rather than weaken, the federation. It was British Columbia’s view that the application of the regional concept in central institutions could counteract the population representation in the House of Commons and could ensure that the outer reaches of Canada were brought into the centre of national decision-making. Mr. Bennett considered it important in this respect that the Pacific region be formally recognized as a fifth region of Canada, pointing out that it was currently, for many practical purposes, recognized as such.

19. Mr. Bennett drew the Conference’s attention to the nine documents his province was tabling setting out its constitutional position. He indicated that they included the following proposals:

– that, as a general proposition, First Ministers not try to codify every possible subject in a constitutional document since there was no guarantee that present legislatures and Parliaments would be any wiser than those of the future;

– that the Senate be reconstitute

– that the rights of Canadians could best be protected through the legislative capacity of governments;

– that the division of powers be placed on clearer and more rational lines to lessen wasteful and costly duplication.

Noting that the documents included several more proposals, Mr. Bennett suggested that they testified to the seriousness with which his province was approaching the constitutional discussions.

20. The Hon. W. Bennett Campbell, Premier of Prince Edward Island, outlined his province’s position on constitutional revision. Prince Edward Island supported the constitutional entrenchment of a Charter of Rights and Freedoms. Though cognizant of the potential effects of such a move, the province considered it a mistake to rely exclusively on tradition to safeguard the rights and freedoms of Canadians. The Canadian legislative record was not entirely without blemish on this matter, and Mr. Campbell noted that, if freedom was the result of vigilance, then a Charter of Rights could but assist legislators in exercising that vigilance. Although not an absolute guarantee, constitutional entrenchment would provide greater likelihood that basic rights would be respected. Mr. Campbell also noted that the province was concerned with the possible effect section 8 of Bill C-60 could have on its land legislation; nonetheless, the province was prepared, despite these concerns, to consider the proposal that property rights be protected by the Constitution. It wished to make clear, however, that this was contingent upon receiving adequate assurance that the residents of Prince Edward Island would experience no restrictions in any other province, other than those of laws of general application to all Canadians.

21. Mr. Campbell was of the view that Canada required a strong central government in order to resist the tendency towards fragmentation, as well as to ensure

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that all Canadians had equal access to opportunity and enjoyed national standards for basic services regardless of the size or wealth of their province. He recognized, however, that certain segments of Canadian society required special consideration, and therefore, though basically satisfied with the present division of powers, his province was prepared to discuss the concept of the federal government delegating responsibilities to the provinces whenever necessary. Mr. Campbell also indicated that his province would oppose any attempt to redesign the country into units of more homogeneous size and emphasized that every province had the right to be treated equally in every respect throughout the nation.

22. Turning to institutions, Mr. Campbell stated that Prince Edward Island supported the Monarchy and its existing role. Though it doubted whether changes to the Senate could ever replace the need for direct federal-provincial consultation, and though it felt that the present Senate was accomplishing a useful function, Prince Edward Island was prepared to examine alternative proposals for modifying the Upper House, and stated that it would find it acceptable:

– if all Senators were appointed by resolutions of the provincial Legislatures; and

– if the length of terms were set at five years and each member limited to two terms.

The province generally supported the changes to the Supreme Court proposed in Bill C-60 with the exception of the judicial appointment procedure which matter, it suggP. sted, could be referred to the federal-provincial committee of Attorneys-General. Prince Edward Island also felt that provision should be made for Common Law judges to participate in Civil Law cases. Mr. Campbell indicated that his province supported the establishment of a process of constitutional review, and emphasized that any such process should be primarily federal-provincial in nature.

23. The Hon. Allan Blakeney, Premier of Saskatchewan, suggested that constitutional revision was clearly the responsibility of all eleven governments, and it was therefore inappropriate to attempt to apportion praise or blame for past failures or to suggest that ‘the ball was in the court of the provinces’ alone. Commenting on the opening remarks of the Prime Minister of Quebec, Mr. Blakeney felt that it was not too helpful to say that Quebecois could only be a majority in their own province, since this was a self-evident statement which could apply with equal validity to any of Canada’s many majority/minority situations. Saskatchewan proposed that the object of constitutional revision was to make the Constitution reflect more clearly the realities which were Canada. These included the reality that Canada was a land of two languages. Mr. Blakeney reminded the Conference that those French-speaking Canadians who opposed English and. those English-speaking Canadians who opposed French were in effect thereby opposing Canada. Canada’s geography had created another reality, that of regionalism which would have to be reflected in the Constitution. There was also the reality of Canada’s position in the world economic system, and Mr. Blakeney suggested in this respect that Canadians could not flirt with dividing the economy into smaller fragments without jeopardizing the economic well being of the country. Though Canadians tended to dwell on their differences they did, Mr. Blakeney felt, share a great deal in common.

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The task was, therefore, not to remake Canada, but rather to strike a bargain for a better Canada in the future.

24. Saskatchewan stated that it was extremely concerned that the federal government was placing the province’s jurisdiction over resources and resource revenues under sustained attack. Mr. Blakeney noted that as early as December 1976 he had drawn attention to the federal government’s ‘systematic and deliberate attempt to destroy, through court action, the provincial rights of resource ownership’, and pointed out that the federal government had taken the unprecedented step of joining the Central Canada Potash Company in its court action against Saskatchewan’s prorationing system. The federal government’s unilateral move to render provincial royalties non-deductible for corporate income tax purposes, a move directed exclusively against the provinces, jeopardized their right to benefit from the resources they owned. Though Saskatchewan agreed that wealth should be redistributed across the country, it suggested that this should be done on the basis of the wealth accruing to any province, rather than on the basis of imposing federal levies on the particular resource commodity of a specific region. It failed to see, moreover, why oil should be singled out for this treatment and not other export commodities such as electricity. This issue was of crucial importance to Saskatchewan, and it hoped that a bargain could be struck leading to fair treatment for all, with rules which could be clearly understood, made applicable to all, and not subject to unilateral change. It noted in this respect that provincial First Ministers had presented proposals on this matter in 1976, to which the federal government had never qiven a substantive response.

25. Mr. Blakeney considered the constitutional questions to be very much related to economic matters, and felt that it was extremely important for First Ministers to arrive at some agreement in principle at the Conference. Although much had been said about the Bill of Rights, the Monarchy, the Senate and such matters, Saskatchewan pointed out that only by resolving the issues surrounding the division of powers would it be possible to address the real tensions in Canada today. It proposed in this regard that progress could be made if the Conference would consider a short list of questions upon which compromise solutions could in all probability be reached. This list could include:

– communications and certain aspects of culture;

– resource taxation and management;

– language rights;

– delegation of legislative powers;

– the Supreme Court; and

– the entrenchment of the equalization principle.

Consideration could also be given to including an amending formula in the short list.

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26. The Hon. Peter Lougheed, Premier of Alberta, emphasized that First Ministers should approach the Conference cognizant of the need for unity, but fully recognizing also that diversity was part of the Canadian fabric. In a country as diverse as Canada, it was only to be expected that provinces would have differences in views, and Mr. Lougheed stressed that this should by no means be held against them. Alberta shared Saskatchewan’s view that constitutional revision was the responsibility of all eleven governments, and indicated that one of its major concerns with the federal proposals in Bill C-60 was that they failed to consider the matters discussed by provincial First Ministers in 1976, particularly in regard to the division of powers. Mr. Lougheed noted that, in the seven years he had been Premier of Alberta, this was his first Constitutional Conference and suggested that, rather than emphasizing 51 years of failure, this Conference be recognized as the beginning of the post-1971 constitutional discussions. Alberta also wished to point out that, for individual Canadians, the country’s sluggish economic performance was the primary source of concern. Although economic and constitutional matters were interrelated, no one should suggest that economic problems would be resolved through constitutional modifications.

27. Alberta pointed to the widespread dissatisfaction with the federal system, not only in Quebec but in the Atlantic and Western provinces as well, and suggested that at the root of this dissatisfaction was the practical fact that decision-making could not be centralized in a country such as Canada. Mr. Lougheed stated that his province understood and appreciated many of Quebec’s concerns, and recognized that the Atlantic provinces also had legitimule grievances. Alberta, in this regard, supported the idea or enshrining the principle of equalization in the Constitution. The West too had legitimate economic aspirations, and Mr. Lougheed drew attention to the fact that the federal government had appeared to have recognized these aspirations when in 1973 it had called the Western Economic Opportunities Conference. Progress since that Conference was unfortunately very disappointing, and Alberta was now of the view that constitutional as well as economic adjustments were required. Alberta’s unequivocal position was one of strengthening the provinces in Confederation. The outlying parts of Canada had to be strengthened in order to provide them with the opportunity to participate fully in the mainstream of Canadian decision-making, and in order to ensure that provincial governments could withstand the pressures associated with voting concentration in central Canada. Whatever might be said to the contrary, Canada was a very centralized country in terms of decisionmaking; the unilateral manner in which the federal qovernment had imposed wage and price controls, as well as its actions in the provincial area of resource ownership were only a few of the many examples which could be used to demonstrate this point. Mr. Lougheed noted that Alberta’s position was outlined in the position paper it had prepared for the Conference, and pointed out that those proposals had the support of the Legislative Assembly and the majority of Albertans.

28. Alberta recommended that six basic principles be respected in the constitutional review:

– responsible Parliamentary government;

– the retention of a constitutional monarchy;

– the legal and constitutional equality of the provinces within Confederation;

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– strong provinces with a strong central government make for a strong Canada;

– neither sphere of jurisdiction should be subordinate to the other; and

– each of the two orders of government should respect the other.

In commenting on these principles, Alberta indicated thut a Parliamentary system of government implied continued reliance on elected as opposed to non-elected institutions. The principle that each province be considered equal in a constitutional sense had particular relevance to an amending formula, and Alberta hoped there would be no attempt to impose such a formula on the provinces. Mr. Lougheed also wished to make it clear that only all First Ministers jointly could speak for Canada, since Canada was a federal and not a unitary state.

29. The Hon. Frank Moores, Premier of Newfoundland, emphasized that a spirit of genuine cooperation had to prevail among First Ministers before there could be any hope of arriving at meaningful conclusions respecting constitutional revision. On the basis of what had been said by previous speakers, it was his opinion that a substantial change of attitude, and a great deal more flexibility and understanding would be required of First Ministers. Newfoundland supported the constitutional review and felt that it should be comprehensive. Mr. Moores pointed to Newfoundland’s unique position among the provinces. Though the oldest community in the country, it was the youngest province, and while it could be said to have gained materially from Confederation, it was conscious of its unique heritage and of the risks involved in linking its destiny with that of the rest of Canada. Newfoundland, Mr. Moores noted, had hopes of soon becoming a ‘have province’ but, if its past had taught it anything, it was that of the value of sharing. Since there was nothing more certain than, if things have changed in the past things would change again, Mr. Moores cautioned the more prosperous provinces not to render their less equal in fact or in formula.

30. Newfoundland felt that there were two points which should be reflected in the Constitution: first, that the division of jurisdiction should lead to a greater accountability of government to the people; and second, that provinces should share with each other to the advantage of all. With seven seats in Parliament, Newfoundlanders did not have a great deal of access to the federal government, yet it was the federal government which had jurisdiction over fisheries. Mr. Moores submitted that regional aspirations had to be recognized and that, while it was not his intention to weaken the central government, the people had to be provided with more opportunities to influence those things which were important to them. An efficient democratic system would place more responsibility and more accountability in the hands of the authority which was more accessible to the population. Responsibility for the fisheries should, Mr. Moores suggested, rest in the main with the government of the province. The matter of the ownership of off-shore resources was also of great interest to Newfoundland and it stron~ly objected, in this reqard, to section 32 of Bill C-60. Newfoundland felt that the off-shore would provide the cornerstone of the province’s future prosperity, nnd should be primarily controlled by the province. The federal government would, however, have to ensure that benefits accruing to the province from this resource not detrimentally affect

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other provinces, and Mr. Moores was confident that the national tax system would ensure a fair distribution of wealth. He also wished to raise the matter of Quebec’s refusal to renegotiate the Upper Churchill contract, a contract which Newfoundland considered extremely unjust, and submitted that the federal government should have the strength to adjudicate all such injustices to the advantage of the nation as a whole.

31. By way of summary, the Chairman observed that a consensus appeared to exist among First Ministers in respect of four points:

– that the problem of constitutional change is important and that a degree of urgency surrounded the issue;

– that all First Ministers had a responsibility to try and find solutions;

– that all First Ministers should be prepared to be flexible and to compromise; and

– that all eleven governments should be prepared to devote whatever time is necessary to achieve some early progress.

Agenda Item 2: Charter of Rights

32. The Hon. Otto Lang, the federal Minister of Justice, introduced this topic, noting that the Charter of Rights and Freedoms contained in Bill C-60 would constitutionalize the basic political and civil rights common to a bill of rights. It would also introduce a guarantee that Canadians were free to move, acquire property, and earn a livelihood in all parts of Canada. Certain rights with respect to language were included in the Charter with the object of ensuring that citizens who grew up in the tradition of one language could exercise basic rights in other areas of the country. Since legislatures too could trample upon the rights of individuals and minorities, the Charter sought to increase the protection afforded these rights by placing them in the Constitution where they would be more difficult to change.

33. The Premier of New Brunswick stated that his province was prepared to accept both the fundamental and language rights provisions of the Charter, the latter providing that the two official languages were given equal status in the Constitution. The Premier of Ontario explained that his province subscribed to the same position on language rights as it had taken at Victoria in 1971. It supported the constitutional entrenchment of the two official languages, and the provision of services in federal areas of jurisdiction in the two official languages, but it was concerned with the opting-in and language of education provisions of the proposed federal Charter. Mr. Davis considered the opting-in f eature to be both a cumbersome mechanism and a very unwise concept to place in a constitution, and suggested that the extension of language rights to provincial government services was a matter which could best be determined by the provincial government.

34. The Premier of Quebec stated that it was premature to propose to entrench language rights in the Constitution. Language rights were a new field of basic rights in Canada, and as such were called upon to evolve as society evolved. The constitutionalizing of these rights would tend to freeze this evolution and, as they were proposed in

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Bill C-60, to relativize these fundamental rights in a constitution. Quebec much preferred the alternative that it had proposed to the provincial Premiers at St. Andrews: reciprocity agreements. Reciprocity agreements recognized the fact that most provinces were in no position to grant extensive language rights at the present time, and sought to secure improvements in the situation of French minorities outside Quebec by takinq a step by step approach which would recognize the differences which existed among provinces. Mr. Levesque noted that other provinces also had recognized that broad language guarantees applying across Canada were inappropriate and cited a statement in a British Columbia position paper as an example. He called the Conference’s attention to the position on educational language rights the provincial First Ministers had adopted in their communique at their Montreal meeting in February earlier in 1978, and suggested that it exemplified why it was premature to constitutionalize language rights. Though no provinces had yet seized the offer of reciprocity agreements, Mr. Levesque noted that these were still on the table.

35. The Prime Minister of Canada pointed out that, by virtue of section 133 of the B.N.A. Act, the province of Quebec and the federal government were already bound to respect certain language rights. The Constitution could not very well be revised without at least continuing to maintain those language rights. There was a question, however, as to whether Quebec should remain the only province to incur language obligations, or whether they might not be extended to bind other provinces, and particularly those with significant French language minorities, in the same way that they bound Quebec. Mr. Trudeau was pleased to note in this regard that certain provinces had proposed that language rights could be dealt with by building upon section 133. He cited, moreover, the consensus on language rights the provincial First Ministers had arrived at during their meetings in 1976, and which they had reconfirmed in the Regina communique. This consensus spoke of a confirmation of the language rights of French and English generally along the lines discussed in Victoria in 1971, and Mr. Trudeau inquired as to whether this consensus still held.

36. British Columbia indicated that though it agreed with the extension of language rights in terms of federal services, it felt that their extension to provincial services was a matter which could best be handled by the provinces. It drew attention in this regard to the significant efforts it had made to provide French language education facilities, and felt that other provinces would do the same. Mr. Lang suggested that though several provinces were making significant improvements in the provision of French language education, it would be important to protect the minorities from arbitrary changes in policy on this most sensitive political issue. He, therefore, stressed the importance of looking beyond the language guarantees endorsed at Victoria.

37. The Premier of New Brunswick commented on the position taken by the province of Quebec, suqqesting that he failed to understand why Quebec should oppose the constitutional entrenchment of language riqhts, when it had itself recoqnized, in putting forward the notion of reciprocity agreements, that measures would have to be taken to secure such language rights for minorities outside of Quebec. The Prime Minister of Canada seconded this observation noting that if one believed that provinces were prepared

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to bind themselves by contract, then they should also be prepared to bind themselves by the Constitution. The Premier of Quebec replied that he had made his position quite clear, and noted that, other than for Ontario and New Brunswick, few other provinces seemed to be interested in this matter.

38. Mr. Trudeau, in response, asked the provinces whether they were interested in guaranteeing language rights, and in particular language rights in respect to education. Ontario indicated that it was prepared to sec the constitutional entrenchment of linguistic rights in respect to education, but noted that it could make no commitment in regard to the post-secondary level. Saskatchewan stated that it was prepared to go beyond the language rights contained in the Victoria Charter, including educational guarantees, though not necessarily those proposed in Bill C-60. Prince Edward Island indicated that it too was interested in providing constitutional guarantees of language rights. Alberta stated that, though it was prepared to accept the constitutional entrenchment of the principles of the Official Languages Act, it supported the position taken by the provincial First Ministers in Montreal in February 1978 regarding language rights in education. Manitoba reiterated that language rights should be secured through amendment to section 133 of the B.N.A. Act rather than through the constitutionalizing of a charter of fundamental rights.

39. Mr. Trudeau concluded the discussion on language rights by expressing the hope that the provincial consensus of 1976 could at least be regarded as a minimum guarantee to be given the use of English and French across the country. As for language rights in education, he indicated that, though no one disputed that education was a provincial matter, the B.N.A. Act did acknowledge that the federal government had the right to protect minorities in matters of education. At the time of Confederation, minority education rights had been conceived as being denominational in nature, while today they could be said to be essentially linguistic in nature. Mr. Trudeau did not see how the federal government could now give up this right unless minority education rights were entrenched in some other way in a revised Constitution.

40. First Ministers turned their attention to the question of entrenching basic legal and political rights in the Constitution. Note was made that Prince Edward Island had endorsed the Charter of Rights and Freedoms. Several other provinces also indicated that they supported the constitutional entrenchment of basic rights. Ontario stated that while it was aware that good arguments could be made against such a move, it had come to the conclusion that basic rights should be entrenched in the Constitution. Newfoundland also expressed concerns regarding entrenchment, but nonetheless favoured the constitutional entrenchment of basic rights, such as these had been agreed to at Victoria in 1971.

41. Nova Scotia reiterated its position that rights and freedoms should not be incorporated in the Constitution unless and until they applied with equal force to all Canadians wherever they lived. The rights to be included in a constitutional document should also, it submitted, be subject to the ununimous consent of all governments. Mr. Lang noted in reply that unanimity was also the preferred option of the federal government, but suggested that in the event that unanimity was not immediately forthcoming, an alternative procedure stretching out the

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time in which unanimity could be achieved should be considered. Nova Scotia indicated that it could support such a procedure.

42. Manitoba, Alberta, Saskatchewan, British Columbia and Quebec voiced concerns regarding the effect the entrenchment in the Constitution of a declaration of rights and freedoms could have upon the operation of responsible parliamentary government. While no province questioned the importance of providing protection for basic individual rights, they felt that this protection could continue to be provided, and on a more satisfactory basis, by elected representatives of the people and by the principles inherent in the process of democratic parliamentary government. There was a great deal of concern that an entrenched Charter of Rights would enhance the role of the Courts and would allow them to set policy on social questions which were more legitimately the concern of elected bodies. Saskatchewan in this regard pointed to the possibility that affirmative legislation discriminatinq between groups of people would be subject to being struck down by the Courts. It noted also that other parliamentary democracies had seen fit not to provide for an entrenched Bill of Rights. Several provinces pointed out that the parliamentary system of government had already secured for Canadians all the basic rights proposed in the Charter, and that history showed that the enshrining of these rights in a constitution was no guarantee that they would not be broken. Nor was placing their safeguard with the Courts any assurance, as the U.S.A. demonstrated, that they would be protected and allowed to evolve in a progressive or wise fashion. Quebec suggested that it would be better to place faith in the democratic process, and allow rights to evolve as society evolved. British Columbia doubted whether the assumption that present day legislators were more progressive than those of tomorrow would necessarily be a valid one. Alberta cautioned that the constitutional entrenchment of certain basic rights could actually serve to weaken the vigilance required of legislatures if basic rights were to be adequately protected.

43. Manitoba strongly objected to the proposed Charter of Rights and Freedoms. It pointed out that the selection of certain rights to place in the Constitution would create first and second class rights and that continued reliance on the traditions of the parliamentary system would avoid such classification. The rights to be listed in a constitutional document could not help but be worded in a broad and general fashion, opening the way to extensive powers of judicial review. Rights provided by legislative action were in comparison clear and specific, and not beyond the power of elected representatives to further elaborate or amend as conditions required. Manitoba reiterated that the federal government would be doing a great service to the success of the constitutional review if it would abandon the condition that a Charter of Rights and Freedoms be included in a revised constitution.

44. The Prime Minister of Canada expressed some concern with the position taken by Manitoba, stating that it would be difficult to abandon the Charter once other provinces had already indicated their support for it. A parliamentary democracy did not, in his view, preclude the entrenchment of a Bill of Rights in the Constitution, and one parliamentary democracy, India, had in fact incorporated a Bill of Rights in its constitution. Any written constitution, such as was required in a federal state, did, moreover, impose limitations on the supremacy of Parliament, and the only real question was how many such limitations should be placed in the Constitution. Mr. Trudeau

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concluded that the federal government and several provinces were still free to entrench the Charter and suggested that the question continue to be left open. Mr. Lang emphasized that, though it was true that entrenchment would transfer some responsibility to the Courts, individuals and minorities had to be provided some guarantee that legislatures would not trample on their rights; it was also important to realize that the entrenchment of rights implied having in mind an amendment procedure for the Constitution as well. He also felt that judicial traditions in Canada were different than those in the United States and that the fear of Court interference was exaggerated. As for the possibility of Courts striking down affirmative legislative action, Mr. Lang thought that this problem could be avoided through proper and careful drafting.

45. The Premier of Alberta suggested that the inclusion in the Charter of a ‘notwithstanding clause’, such as existed in Alberta’s individual rights legislation, might perhaps render the Charter more acceptable. The Prime Minister of Canada agreed that this procedure might provide a mechanism which would allow some provinces to adhere to a Bill of Rights and should therefore be considered. Ontario stated, in response, that it would be reluctant to see such a clause put into the Constitution on a matter as fundamental as individual rights.

Agenda Item 3: Distribution of Powers

46. The Hon. Marc Lalonde, the federal Minister of State for Federal-Provincial Relations, outlined the various approaches which could be used to examine the question of the distribution of powers. The federal government agreed in principle that this examination should be predicated upon five basic considerations:

– that the national government would have to be provided with the powers needed to promote and defend Canada’s international interests; that provinces should have the means to secure the social well being and cultural development of their citizens;

– that the federal government should have sufficient powers to redistribute wealth among provinces, to regulate international and interprovincial trade, and to maintain a healthy and competitive national economy;

– that the provinces should be provided with sufficient powers over resource management, manpow~r matters, and industrial development in their territory; and

– that it should be recognized that one order of government might be in a better position than the other to provide certain services, and that it should as a result have all the resources necessary to accomplish this end.

Mr. Lalonde suggested that other approaches, such as that proposed by British Columbia in its position paper, could also be considered.

47. Whatever the approach used, Mr. Lalonde felt it would be impossible to avoid the need for a certain degree of interdependency between the federal and provincial governments. The division of powers could in this respect continue to be set out as two separate and mutually exclusive lists, or greater recourse could be had to concurrentcy

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with specification of federal or provincial paramountcy as the case required. Another option would be to introduce legislative delegation in the Constitution.

48. A review of the division of powers might start by examining, Mr. Lalonde indicated, the proposals for jurisdictional change the Premiers had put forward during their meetings in 1976 and at their later meeting in Regina in August 1978. All together, these proposals included fifteen matters which the provinces wanted reviewed and revised.

– immigration;

– resource taxation;

– the federal declaratory power;

– the creation of new provinces;

– culture;

– communications;

– the federal spending power;

– the federal powers of reservation and disallowance;

– the federal treaty-making power; fisheries;

– natural resources, with the view of strenqlhening provincial powers in their respect;

– the federal emergency power;

– access to indirect taxation;

– the federal residual powers; and

– legislative delegation.

Only a small number of these matters were, in Mr. Lalonde’s opinion, likely to be settled very quickly or very easily. They did not, moreover, include all the matters the federal government was interested in reviewing. Those included, among others:

– the emergency power in relation to economic matters;

– non-tariff barriers to interprovincial and international trade;

– jurisdiction in foreign affairs;

– the regulation of competition;

– interprovincial telephone and telecommunications traffic;

– international and interprovincial movement of electricity, oil, gas and other minerals, including rights-of-passage;

– jurisdiction over minimum wages;

– marketing boards;

– regulation of the securities industry; and

– the right or obligation to make expenditures to reduce regional disparities.

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The combined list of federal and provincial proposals made for a long list which Mr. Lalonde felt would take at least two years to study in adequate detail. The federal government was, he stated, prepared to enter into this effort.

49. A number of provinces felt that the federal government had not given a substantive reply to the letter the Premier of Alberta had written to the Prime Minister of Canada on October 14, 1976 in which he had presented, as Chairman of the Premiers’ Conference, the consensus provinces had reached during their meetings that year. Mr. Blakeney suggested that this at least demonstrated that if there was guilt to lay for the past, the federal as well as provincial governments should share the guilt. The Prime Minister of Canada pointed out, in response, that he had replied to that letter in January 1977 and felt that his reply had been a substantive one. The issue, he submitted, was whether or not First Ministers could at least agree to patriation and an amending formula before launching into what promised to be a lengthy process of discussing the division of powers. He reminded the Conference that provincial First Ministers had met with him in April 1975 and that it had then been agreed, or so he had understood, that an effort would be made to patriate the Constitution independently of other considerations such as the division of powers. This was not what the letter of October 14, 1976 had proposed to do since it stated that provinces insisted on dealing with the division of powers before agreeing to patriation. Saskatchewan submitted that Mr. Trudeau’s letter of January 1977 could not be considered a substantive response to provincial proposals and questioned whether patriation was a priority in the minds of Canadians. Alberta differed with Mr. Trudeau’s description of the April 1975 meeting since it was not its understanding that an agreement had been reached not to discuss the division or powers. Such a proposal was clearly unacceptable to Alberta, and Mr. Lougheed agreed with Saskatchewan that the letter of January 1977 was not a substantive response to provincial proposals. New Brunswick indicated that it considered patriation of the Constitution to be extremely important. Ontario suggested that it be recognized that a number of provinces held strong views regarding the division of powers and that this matter should at a minimum be considered together with patriation.

50. In presenting Quebec’s position on this question, Mr. Levesque emphasized that his government was attending the Conference with the view of defending the positions historically taken by previous Quebec governments and had no intention of starting to ‘bargain’. He noted in this respect that the federal government had put forward a list of powers which it felt should be transferred from the provinces to the federal jurisdiction. Mr. Levesque wished to make it clear that under no circumstances would he agree to diminish the jurisdiction of the Quebec National Assembly. In his view the presentation of a list of powers to be transferred to the federal government tended, moreover, to create a distorted picture of the situation since it failed to consider that Ottawa had been actively encroaching upon provincial areas of jurisdiction and centralizing the decision-making process for several decades. Neither was Quebec at the Conference, Mr. Levesque stated, to participate in the forcing through of modifications in anticipation of the referendum. If progress were mude in the direction of providing provinces with a greater degree of

[Page 20]

jurisdiction, the Quebec electorate would be free to take this into account when the time came to make its decision. Quebec agreed with certain other provinces that the federal government had never adequately replied to the provincial consensus of 1976, and felt that it was incumbent upon that government to do so. Mr. Lalonde pointed out that previous Quebec governments had in fact agreed in the past to constitutional modifications transferring powers to the federal government, and suggested that jurisdictional encroachments went in two directions since provinces had also encroached upon federal areas of jurisdiction. Ontario indicated to Quebec that it too was not at the Conference to start bargaining, but rather to develop a logical and intelligent consensus on constitutional change.

51. At the request of the Conference, Mr. Lougheed, in his capacity as Chairman of the Premiers’ Conference during 1976, and Mr. Blakeney, as Chairman for 1978, each presented a brief summary of the provincial consensus arising from the Premiers’ meetings they had chaired. They generally confirmed the jurisdictional proposals made by the provinces as contained in Mr. Lalonde’s previous statement.

52. The Prime Minister of Canada commented upon several of the proposals put forward by the provinces, and indicated that the federal government was prepared to be flexible on the issue of the distribution of powers. He agreed that the federal spending power and the declaratory power should be limited in some fashion, but noted that these powers had proven very useful in the past and should not be abandoned altogether. Governments, he felt, could move relatively quickly to provide provinces with access to indirect taxation, and he pointed out that the federal government had endorsed such a measure in 1969. This would have to be done in such a way, however, as to not present barriers to international and interprovincial trade. As for resource taxation, Mr. Trudeau agreed that resources were fundamental to provincial economies, and that provinces should have whatever taxation rights they desired in their respect. The federal government would, nonetheless, have to maintain some access to the wealth generated by resources to enable it to redistribute wealth within the country. Mr. Trudeau indicated also that section 109 of the B.N.A. Act should be clarified to ensure that resources were the property of the provinces. Immigration, he noted, was already a joint power under the Constitution. He doubted whether provinces were suggesting that the federal government abandon this field completely, and felt that administrative solutions were more what was being called for. He noted also that the federal powers of reservation and disallowance were dealt with in Bill C-60, and were in any case not of the same priority as other jurisdictional questions.

53. Mr. Trudeau emphasized the importance for First Ministers of being able to demonstrate some early progress on constitutional change. He suggested that although many of the proposals were not subject to early resolution, it should nevertheless be possible to identify a short list of jurisdictional matters likely to be agreed to by governments within the next few months. He presented a proposal (see Appendix B) to the Conference regarding a process by which First Ministers could proceed, in relatively quick fashion, with the constitutional review, and in particular with the

[Page 21]

question of the distribution of powers. Mr. Trudeau recommended, first, that a special arrangement be put in place to enable the effort to go forward as rapidly as possible, and, second, that a priority list be established to serve as a guideline and as an objective for the next few months.

54. With respect to arrangements, the Prime Minister of Canada proposed that a federal-provincial committee composed of Ministers of Intergovernmental Affairs and Attorneys General be struck and that it meet frequently in the next few months to study the matters placed on the priority list. Other Ministers could sit on the committee when and as required. First Ministers should, in addition, try to ensure that contentious issues received the quick attention of their respective Cabinets. This committee could report to the next First Ministers’ Conference on the Constitution scheduled for early in the new year.

55. Turning to the list of priorities, Mr. Trudeau stated that the federal government was prepared to commit itself to study the many questions which had been raised, and asked, in return, that the provinces commit themselves to make rapid progress on other aspects of constitutional renewal. As a first priority list (‘short list’), Mr. Trudeau suggested that First Ministers agree in principle upon the following:

– that an appropriate method to limit the use of federal spending power be developed. The federal government was prepared to devise appropriate restrictions on the use of this power for payments to governments, and to institutions and persons, where payments to those might significantly affect the affairs of provincial governments. These restrictions should not, however, deprive the federal government of effective means to achieve such national goals as equal treatment of Canadians regardless of their residence, and alleviation of disparities among provinces and regions. Consideration could also be given to limiting the provincial spending power where it interfered with federal priorities.

– that the constitutional obligation of the federal government regarding equalization and regional development be made more explicit. The federal government was prepared to consider a more explicit text than that contained on this matter in Bill C-60, and suggested that the notion of regional development within provinces could perhaps be introduced into such a text.

– that a constitutional provision which would meet provincial concerns about the possible abuse of the federal declaratory power be devised. The federal government would, however, wish to ensure some means by which the total Canadian community could be protected if a provincial government, at some point in time, were to act in a way contrary to the interests of the country as a whole.

– that the proposals made in 1969 by the federal government allowing, within certain limits, provincial legislatures to levy indirect taxes be revived. The federal government felt, however,

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that the constitutional provision should be drafted in such a way as to ensure that provincial taxation would not create impediments to interprovincial and international trade, and that it be substantially confined to within provincial borders.

– that an effort be made on an urgent basis to clarify the respective powers of the federal and provincial governments in respect of: the control, management and taxation of natural resources; and the control and regulation of interprovincial and international trade.

– that the constitutional obstacles to the unification of family law under provincial jurisdiction be removed. The federal government was prepared to modify to a considerable degree its powers over marriage and divorce matters to accomplish this end.

– that communications be recognized as a field in which both orders of government had a legitimate interest. New constitutional provisions satisfactory factory to both orders of government should, as a consequence, be developed.

In addition to these matters, Mr. Trudeau proposed that the Committee on the Constitution also consider certain matters contained in Bill C-60, and in particular the Charter of Rights and Freedoms and changes to the Supreme Court. Since the Bill’s provisions on the Senate were to be the subject of an opinion from the Supreme Court, Mr. Trudeau did not believe that Senate reform need be on the first priority list. The Committee should, however, also consider the question of an amendment formula before the next First Ministers’ Conference on the Constitution.

56. Mr. Trudeau emphasized that this priority list did not exhaust the questions dealing with the distribution of powers with which the federal government wanted to deal. The list represented matters on which progress could be made in the next few months. A second priority list could subsequently be elaborated to continue the process of constitutional review. Mr. Trudeuu indicated that the federal government would wish at that time to have matters regarding the division of powers with which it was concerned included, together with provincial proposals, on that second list.

57. Several provinces expressed support for the proposal outlined by the Prime Minister of Canada. Ontario stated that it agreed with the proposal in principle. New Brunswick felt that it was a positive move on the part of the federal government and considered it important that the federal spending power not be entirely abandoned. British Columbia expressed support for the federal proposal but indicated that it would wish to deal with institutions at some point in the constitutional review process. Manitoba welcomed the priority approach outlined by Mr. Trudeau and hoped that matters which could not contribute to progress on the constitutional review would be put aside. The province indicated its support for the position taken by Alberta and Saskatchewan with respect to the control of resources, and reaffirmed its commitment to a strong national government. Alberta stated that it was encouraged by the federal proposal but was concerned with the number of caveats it contained. A number of provinces requested clarification as to when

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jurisdictional matters of interest to the federal government would be considered. Mr. Trudeau indicated that the federal government was prepared to delay their study until the second priority list was considered.

58. Newfoundland and Nova Scotia also endorsed the federal proposal but stressed that jurisdiction over fisheries should be included in the first priority list. Though it was recognized that the federal government had leqitimate responsibilities relating to fisheries, the coastal provinces also had legitimate interests in this matter and jurisdiction over fisheries should therefore not continue to be exclusively federal. British Columbia supported the views expressed by Newfoundland and Nova Scotia. Mr. Lalonde pointed out that the question of jurisdiction over fisheries was a complex one, and unlikely to be resolved over the next few months. The Prime Minister of Canada indicated that, though he was concerned that this issue would not be resolved in time for the next First Ministers’ Conference on the Constitution, he was prepared to sec fisheries added lo the first priority list.

59. Newfoundland expressed concerns regarding the question of JUrisdiction over off-shore resources, and suggested that this matter should be considered by the Committee on the Constitution as part of the item on the priority list dealing with the control and management of natural resources. It also raised objections in this regard to section 32 of Bill C-60. Mr. Trudeau stated, in response, that section 32 sought only to confirm, in keeping with new developments in international law, that the off-shore resources belonged to Canada. Since Canada was a federal state, the question of jurisdiction would still have to be resolved and was not affected by section 32. Noting that it had taken ten years for the federal government and certain coastal provinces to reach an agreanent regarding the joint administration of off-shore resources, Mr. Trudeau felt it would be unwise to reopen this matter and that it was unlikely to be settled before the next First Ministers’ Conference on the Constitution. Nova Scotia indicated that it was presently reviewing the agreement it had signed with the federal government regarding the joint administration of the off-shore. Newfoundland considered this question to be of critical importance. It also suggested that the federal government consider using its declaratory power to ensure that Newfoundland’s electricity could acquire access to other markets than Quebec.

60. Saskatchewan stated that it was encouraged by the proposals made by the Prime Minister of Canada. It felt that it would be important at some point to consider the possibility of introducing legislative delegation in the Constitution. Saskatchewan was concerned with the direction that judicial decisions were taking, and felt that there was a danger that the Courts would strike down provincial legislation relating to matters which both the federal government and the provinces recognized as being legitimately a provincial responsibility. Legislative, as well as administrative delegation, would make it possible to ensure that the provincial governments could overcome this difficulty. Mr. Trudeau noted that legislative delegation would substantially alter Canadian federalism and that the study of this matter would take some time. Mr. Lang remarked that certain judicial cases, such as those dealing with the trade and commerce power, were of such overall significance that the federal government felt compelled to be a party to them.

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61. Quebec indicated that, as a preliminary reaction, it was encouraged to see that some movement was finally being registered on the division of powers, and stated that it would participate in whatever structure was established to discuss constitutional matters over the course of the next few months. Though the items on the priority list were of interest to Quebec, and particularly the item dealing with communications, Mr. Levesque suggested that the federal proposal failed to recognize the existence of two distinct cultural communities in Canada. He noted in this regard that the proposal contained no mention of the special status successive Quebec governments had repeatedly demanded. Mr. Levesque stressed that Quebec was not prepared to start ‘bargaining’. He expressed concerns regarding the caveats attached to the federal proposal and the reference to a list of powers the federal government would want transferred from the provinces. He noted also that the federal proposal referred to an amending formula, a matter with which it was very difficult to deal.

Agenda Item 4: Institutions

62. The Conference agreed to examine the institutions of the Senate, the Supreme Court, and the Monarchy under this item. Turning first to the Senate, the Prime Minister of Canada indicated that the federal proposals for an Upper House contained in Bill C-60 attempted to provide for a greater representation of regional needs and aspirations. These proposals, however, were not carved in stone and would also be the subject of a reference to the Supreme Court; the federal government would not move unilaterally on the question of the Senate until the Supreme Court had given its decision. The matter could, however, be proceeded with sooner if changes to the Upper House met with the agreement of the provinces.

63. The Premier of British Columbia presented his province’s proposals regarding a restructuring of the Upper House. The Senate, he submitted, had been conceived to perform two major functions: first, to act as a chamber of sober second thought, and second, to provide regional representation in the formulation of national policies. While it had acquitted itself reasonably well in regard to the first function, it had not effectively performed its second function. British Columbia considered it imperative that regions be provided an effective voice in national policymaking and believed that this could best be achieved through a restructured Upper House. A restructured Upper House could provide a means to respond to regional alienation and would provide the outer regions of Canada with the opportunity for input at the centre. Effective regional representation in national institutions was, moreover, an alternative to massive decentralization which would only emasculate the federal government and weaken the federation. British Columbia was, therefore, proposing that substantive chanqes be made both to the Senate’s role and to the uppointmenl procedure of Senators with the view of securing effective rcqional representation at the national level.

64. British Columbia proposed thal all Senators be appointed by the provincial governments, with their tenure corresponding to the life of the government which appointed them. The leading Senator from each province would be a provincial Cabinet Minister, and other appointments would be made from persons of stature and ability in the province. Representation in the Upper House could not, however, be based on equal representation from each province, nor on a population basis. British

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Columbia favoured the continuation of representation based upon the regional concept, but suggested that it be recognized as a fifth Canadian region for purposes of representation. Not only would this better reflect current reality, but it would also provide the West with two fifths of the representation in the Upper House.

65. All matters considered by the Upper House would, British Columbia proposed, fall into one of two categories. Category ‘A’ would include matters of prime concern to provincial governments. The leading Senator from each province would, upon instructions from the provincial government, cast a bloc vote on behalf of all Senators from that province on these questions. The Upper House would also be given an absolute veto in respect of these matters. Category ‘B’ would include all other matters considered by the Upper House. The Upper House would only have a right of suspensive veto on these questions, and each Senator would be free to vote without instruction from the province. British Columbia suggested that the following matters be included in Category ‘A’:

– the approval of appointments to the Supreme Court;

– the approval of appointments to major federal agencies and commissions;

– amendments to the Constitution of Canada;

– the approval of federal laws whose administration fell to the provinces (e.g., the Criminal Code);

– the ratification of any exercise of the declaratory power; and

– the approval of the use of the federal spending power in areas of provincial jurisdiction.

British Columbia doubted whether the absolute or suspensive veto would be frequently used and felt that they would rather serve as an inducement for thorough federalprovincial consultation in the development of federal legislation affecting the provinces.

66. Ontario suggested that more thought should be given to the question of what First Ministers hoped to achieve through Senate reform. The Senate was one of the country’s key institutions and its restructuring would have major implications on Canada’s system of government, and in particular upon the responsibilities of elected representatives. Ontario felt that the Senate as presently constituted was accomplishing a useful function, and that First Ministers should be clear about what they intended the Senate to do before proceeding to implement changes. It noted that proposals for a reconstituted Senate sought to use the Upper House as a vehicle to ensure coordination and cooperation between the central government and the regions and suggested that other approaches might be considered to achieve this end. It did not believe, moreover, that one level of government should interfere with the other in discharging the constitutional responsibilities each had been elected to assume. Nor did it believe that Senate reform would provide any magic solutions to the question of national-regional cooperation; the First Ministers’ Conference and other such meetings remained the real vehicle by which to secure such cooperation. Ontario was therefore of the view that the First

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Ministers’ Conference should be institutionalized in the Constitution and mandated to meet, at a minimum, twice a year. It also suggested that the role of the Canadian Intergovernmental Conference Secretariat might be revised so that it could perform a policy collecting as well as an administrative function to assist the First Ministers’ Conference become a more effective vehicle by which coordination and cooperation between regions and the federal government could be ensured.

67. New Brunswick stated that it did not support making substantial changes to the Senate. The Senate was performing a very useful function and was effective in bringing regional concerns to bear on federal legislation. Mr. Hatfield also supported the present manner by which Senators were appointed and opposed the notion that the Senate should be elected. Consideration could, however, be given to limiting the terms of Senators to eight to ten years and to including British Columbia as a fifth region for purposes of Senate representation. New Brunswick voiced strong objections to the idea that appointments to federal agencies and commissions and to the Supreme Court should be publicly scrutinized by the Senate. The experience of the United States which had such a procedure did not, it felt, deserve to be imitated.

68. Manitoba emphasized that it wanted the Senate to be continued and that it did not want the Senate’s name to be changed. Mr. Lyon indicated that Manitoba would consider suggestions to provide for greater regional representation in the Senate and felt that the provinces should participate in the appointment of Senators. In this case some limit, however, would have to be placed on the Senate’s ability to defeat legislation passed by the House. He noted also that proposals for substantive changes, such as put forward by British Columbia, required more evaluation. Manitoba agreed with New Brunswick that the Senate should not be empowered to review appointments. In Manitoba’s view, Senate reform was not an urgent matter and should consequently not be placed on the first priority list.

69. Alberta expressed the view that feelings of regional alienation would not be resolved by structural changes to the Senate, and in this it recognized that it differed with the approach taken by British Columbia. Mr. Lougheed suggested that consideration should be given to having the Senate examine the technical aspects of federal legislation before second reading in the House of Commons. He agreed with previous speakers that empowering the Senate to review appointments could lead to serious problems.

70. Nova Scotia stressed that the Senate was a national institution requiring a provincial and regional presence. It therefore strongly objected to any unilateral action on the part of the federal government in this matter and suggested that, whatever the result of the reference to the Supreme Court, the federal government should not act alone. Nova Scotia recommended that the question of the Senate be placed on the first priority list for consideration by the Committee on the Constitution. The Attorney General for Nova Scotia pointed to the partisan nature of the present Senate and its domination by one political party, and suggested that, to enable the Senate to genuinely function as a body of sombre second thought, it would be necessary to adopt a non-partisan approach to appointments.

71. Prince Edward Island stated that it supported the Senate in its present form but would prefer having Senators

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appointed by resolution of the provincial legislatures and having their terms in office further limited. It foresaw major problems with restructuring the Senate in terms of interface with the House of Commons and the elected responsibility of provincial Ministers.

72. British Columbia commented on certain points raised by the other provinces, and called upon them to keep an open mind on the question of Senate reform. The province had spent a great deal of energy examining this question, and very much felt that it should be placed on the first priority list of the Committee on the Constitution. This was all the more necessary in view of the fact that the Committee would be examining the decentralization of powers, since British Columbia felt that its proposal for a reconstituted Senate could prove, upon more thorough study, to be a useful and practical alternative. The Prime Minister of Canada expressed support for the approach adopted by British Columbia. The issue was, he noted, how to solve the question of regional alienation, and this seemed to admit of only two answers: either more powers were decentralized to the regions, or more regional input was provided for in central government institutions. Though one might candidly reflect upon why provinces would oppose the latter solution, it had been successfully adopted, to resolve the very same problems, in other federations, and had been recommended by all groups who had made proposals on the issue in Canada. Mr. Trudeau too thought that this matter might be considered on the first priority list. New Brunswick voiced objections to including the Senate on the first priority list. The Chairman, noting that British Columbia was not alone in wanting the Senate question on the first priority list, felt that it should be included on that list.

73. The Conference turned its attention to the examination of the Supreme Court of Canada. The Prime Minister or Canada noted in this regard thal Bill C-60 sought to provide, first, for the entrenchment of the Supreme Court in the Constitution, and second, for an appointment procedure which would ensure that the Court would have the confidence of Canadians in all regions of Canada. Mr. Trudeau emphasized the importance of establishing the Supreme Court on a basis which would clearly provide it with the legitimacy required to operate as an effective constitutional court.

74. The Premier of Alberta stressed that the court called upon to render judgements on constitutional issues should reflect the perspectives of different parts of Canada. Appointments to this court should, moreover, not continue to be the sole prerogative of one of the parties to constitutional disputes. Note was made that Alberta had, in its position paper, prepared a proposal which called for the establishment of a separate Constitutionill Court, with judges to be appointed on a rotating basis from a pool of nominees living in various communities in Canada. Mr. Lougheed noted that this proposal would provide a better degree of representation from all regions of the country than could the nominating procedure outlined in the Victoria Charter. It would also leave the Supreme Court’s jurisdiction over non-constitutional matters intact.

75. Saskatchewan had, Mr. Blakeney stated, come to the conclusion that provision should be made for provincial input into the appointment of the judges of the Supreme Court.

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The Supreme Court was, he submitted, in fact part of the legislative process in Canada and it was self-evident that if only one party continued to make appointments to it, the Court could over time adopt the mind-set common to that party. To render the Court above reproach, the appointment process would have to clearly show that the Court was an impartial arbiter between federal and provincial governments. Saskatchewan, therefore, favoured a procedure allowing for provincial input in the appointment process, and indicated, in this regard, that it had no particular objections to the procedure proposed in the Victoria Charter.

76. Newfoundland supported the entrenchment of the Supreme Court in the Constitution, and felt that it would be desirable to have an appropriate provincial involvement in the appointment of judges. It emphasized, however, that the most important consideration in making appoinlments to the Supreme Court should continue to be that or finding the most competent and qualified people to fill the position of Supreme Court judge. Newfoundland had no doubt that Supreme Court judges were impartial and competent but felt that the formalizing of appointments on a regional basis, such as provided for in Bill C-60, would enhance the credibility of the Court. The province expressed concerns regarding the provision in Bill C-60 for the ratification of appointments to the Court by the House of the Federation. Although it felt that the number of judges on the Court could be increased to provide more representation for Quebec’s civil law system, Newfoundland was also of the view that common law judges should also be allowed to participate in civil law cases. Judges of provincial Superior, County, and District courts should, Newfoundland stated, also be appointed in consultation with the province and it suggested that some sort of simple formula should be enshrined to provide for meaningful consultation in this respect.

77. Ontario stated that it supported the constitutional entrenchment of the Supreme Court. It recommended that judges to the Court be appointed by the Governor General in Council from a list of candidates submitted by a National Judicial Nominating Council upon which would sit the Attorney General of Canada and the Attorneys General of all the provinces. In Ontario’s view it was important to continue to make appointments on the merit principle, and the province did not support the idea that judges should be appointed to represent specific regions. The province also opposed the concept of a separate constitutional court and believed that the Supreme Court should continue to be the court of final appeal for all of Canada. The number of judges on the Court should also be maintained at nine. Ontario felt that the responsibility for the appointment of judges to the Superior, County and District courts of the provinces should lie with the provinces rather than the federal government.

78. Quebec felt that if Supreme Court judgements tended to favour the federal government, it was because the Court was called upon to interpret a centralist constitution, hence the importance Quebec had historically placed on changing the division of powers. The matter of the Civil Code was important to Quebec under the present federal system, and the province indicated that it disagreed with the approach taken by Newfoundland on this question.

79. Manitoba stated that it essentially agreed with the position taken by Ontario, particularly in regard to the proposal for a nominating council composed of Attorneys General. Judges should not, it felt, be appointed as

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delegates from particular regions, nor should Supreme Court appointments be subject to ratification by a reconstituted Senate. The number of judges should, it fell, remain at nine.

80. British Columbia considered that the existence, the composition, and the jurisdiction of the Supreme Court should be specified in the Constitution. It recommended that appointments to the Court be made in a three-stage process involving federal-provincial consultation regarding the nominee, appointment by the federal government, and ratification by a reconstituted Senate. The Supreme Court should, it stated, be composed of eleven members drawn from the five regions of the country, and should retain final appellate jurisdiction in respect of all cases and in relation to both federal and provincial laws.

81. New Brunswick considered that the Supreme Court should remain a national institution and questioned whether provinces should participate in the appointment of judges. It pointed out that, given the limited number of judges and the length of their terms, certain provincial governments would have to wait a long time before seeing a judge appointed from their region, while judges appointed from other regions might render judgements disfavourable to that provincial government. If a regional concept were to be introduced in Supreme Court appointments, then New Brunswick felt that the Alberta proposal made more sense.

82. The Hon. Otto Lang and the Hon. Marc Lalonde questioned whether it could be said that the Supreme Court had a mind-set or a bias favouring the federal government. Though the federal government had in Bill C-60 formally provided for consultation with the provinces in the selection of judges, Mr. Lang wished to point out that appointments to the Supreme Court were made strictly on the basis of merit and ability, and suggested that the number of close decisions handed down by that body demonstrated that it did not harbour any particular bias. The Court’s responsibility was to interpret the law, and this it had sought to do to the best of its ability. Much of the dissatisfaction with the Court could, he felt, be imputed to a dissatisfaction with the Constitution itself rather than to the nature of the Court. Mr. Lalonde quoted a recent survey of Supreme Court decisions which indicated that the Court had rendered as many decisions in favour of the provinces as it had in favour of the federal government. He therefore did not believe that the Court could be regarded as biased in favour of the federal government. Saskatchewan, in response, pointed to recent and important Supreme Court decisions which had overturned rulings of the Court of Appeal in the provinces. In the vast majority of lhesc cases, the Supreme Court had favoured the federal government, whereas the Courts of Appeal had ruled in favour of the province. Since both Courts were dealing with the same law, Saskatchewan wondered how the more federal orientation of the Supreme Court should be explained, and strongly felt that this was a problem which should not be understated.

83. The Chairman, by way of summary, stated that First Ministers appeared to have reached unanimous agreement that the Supreme Court should be entrenched in the Constitution. He indicated that this matter would be placed on the first priority list for consideration by the Committee on the Constitution. A consensus also appeared to exist that some form of consultation with the provinces should

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take place in selecting judges to be appointed to the Supreme Court, although note was made that differences existed on how this should be accomplished. The Committee on the Constitution was asked to study this question, starting with the proposals in Bill C-60 and including the approach put forward by Alberta.

84. First Ministers turned their attention to the question of the Monarchy. Note was made that all supported the continuation of the Monarchy in its present form. A number of provinces expressed concerns regarding the manner in which Bill C-60 dealt with this matter. Ontario was concerned with the wording of the legislation in this respect and submitted a redraft of relevant sections of Bill C-60. It strongly urged the federal government to consider redrafting these sections, and stated that this was a matter upon which Ontario’s position could be characterized as inflexible. Saskatchewan expressed concern with section 45 of the Bill since it could be interpreted in such a way as to allow the federal Cabinet to dismiss the Governor General at will. Note was made that the federal government would soon be forwarding a revised draft of these sections of Bill C-60 to the provinces.

85. The Premier of Alberta suggested that consideration should be given, in keeping with the objective of securing adequate regional representation at the centre, to allowing some form of regional input into appointments on national boards and agencies such as the Canadian Transportation Commission. This would help render decisions made by the agencies more legitimate in the eyes of people living in Canada’s various regions, and particularly Western Canada. Mr. Lougheed felt that this question should be considered at the next First Ministers’ Conference on the Constitution. The Prime Minister of Canada indicated that he did not believe that the national government, elected to represent national interests, should abrogate its responsibilities in terms of appointments to nutional boards and agencies by allowing them to devolve to provinciul governments elected to represent provincial interests. Note was made by British Columbia that there would be an opportunity to discuss this question and its own proposals in this respect prior to the next First Ministers’ Conference on the Constitution, and that a better understanding of this question might then prevail.

Agenda Item 5: Process of Constitutional Review

86. The Prime Minister of Canada indicated that First Ministers had agreed to establish a Committee on the Constitution composed of Attorneys General and the Ministers of Intergovernmental Affairs for each government to examine in greater detail the points referred to it by First Ministers. This Committee was to report to the next First Ministers’ Conference on the Constitution scheduled for early February. Mr. Trudeau also indicated that First Ministers should agree on a communique and word it in such u way as to clearly specify those areas, such as provincial access to indirect taxation, upon which there had been agreement in substance, and those areas, such as Senate reform, which were being referred to the Committee for purposes of study only. He noted that the communiqué would have to include a second consensus which First Ministers had reached over the course of their dinner discussion the previous evening: a consensus to patriate the Constitution and arrive at an amendment formula. Mr. Trudeau indicated that the Committee should be asked to examine the question of patriation and an amending formula as part of the package of constitutional matters referred to it.

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87. A number of provinces expressed concern regarding Mr. Trudeau’s reference to a ‘package’, indicating that they hoped that movement on other items placed on the priority list would not be made conditional to agreement on patriation and an amending formula. Mr. Trudeau indicated that he wished to ensure that the Committee on the Constitution would work as diligently on the question of patriation and an amending formula as it would on other items; every part of the package was equally urgent.

88. Quebec was asked to present its views on this matter. Mr. Levesque considered that the federal government’s insistence regarding patriation and an amending formula was an eleventh hour development at the Conference, and he reiterated that Quebec did not intend to bargain concerning any ‘package deal’. Quebec was nonetheless prepared to participate in the work of the Committee on the Constitution as it related to the items deuljnq wil.h tiH’ uivision of powers. Though in its view the Committee should limit itself to a consideration of these items, Quebec was also prepared to participate in discussions on the Charter of Rights and Freedoms, Senate reform, and the Supreme Court if the majority of First Ministers felt these matters should be included on the priority list. Quebec would not, at this stage, however, consider participating in the study of an amending formula, and would absent itself from any such discussions on the Committee on the Constitution. Mr. Levesque explained that Quebec had historically maintained the position that an amending formula and patriation should only be agreed upon once the province had secured the powers needed to ensure its development as a distinct society, and he fully intended to continue that position.

89. Ontario stated that it agreed with the objective of patriation and felt that patriation and an amending formula should be examined by the Committee on the Constitution. It urged the federal government, however, not to make agreement on this subject a precondition for movement on other items referred to the Committee. Saskatchewan requested clarification as to whether the federal government was suggesting that patriation and an amending formula had to be agreed to before other matters could go forward. It felt that such a condition would evidently jeopardize the success of the entire exercise. Newfoundland also wished to have clarification of the federal government’s position and suggested that the possibility of amending the Constitution through Westminster should not be precluded. New Brunswick seriously questioned the position taken by Quebec and indicated that patriation and an amending formula had to be considered a priority question. Manitoba stated that, in its view, patriation and an amending formula should be considered a concurrent priority of the Committee on the Constitution.

90. The Prime Minister of Canada wished to point out that there were only three ways by which the Constitution could be revised. First, it could be amended through repealed recourse to Westminster, an option which Mr. Trudeau considered unacceptable though it might possibly be used one or two more time s. Second, the Constitution could be revised by federal statute such as had been proposed in Bill C-60; this approach could not, however, be used to deal with the division of powers and such statutes were subject to being changed by Parliament in the future. Third, First Ministers could agree on an amending formula and on patriation thereby providing the mechanism by which Canada could amend its own Constitution as need be. This

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was the option favoured by the federal government. Mr. Trudeau felt that it would be very important for First Ministers to agree at some point in the foreseeable future to develop an amending formula and to patriate the Constitution in order to entrench, without repeated recourse to Westminster, constitutional agreements arrived at in Canada. He did not see how amending the Constitution in Canada would affect Quebec’s position. Saskatchewan stated that it was encouraged that the federal government had not precluded the option of amending the Constitution in the traditional way should it be required. Quebec was of the view that it would be premature to envisage the question of an amending formula when it could already see that the forthcoming discussions on the distribution of powers were unlikely to meet its historical aspirations.

91. The Chairman stated that the Committee on the Constitution would be asked to study the question of patriation and an amending formula. It was understood that Quebec would not participate in these specific deliberations. The Committee would report on this matter, together with the other items it had been asked to examine, to the next First Ministers’ Conference on the Constitution. Mr. Trudeau indicated that the question of whether certain parts of the package considered by the Committee could fly independently of others would be considered by the next First Ministers’ Conference on the Constitution.

92. First Ministers agreed that the Committee on the Constitution should appoint a steering committee to better coordinate the work of the Committee.

Agenda Item 6: Duplication of Services

93. The Hon. Marc Lalonde, the federal Minister of State for Federal-Provincial Relations, noted that federal and provincial governments had reached substantial agreement on how to proceed with this matter. The outstanding issue remained that of the financial ramifications of decisions to eliminate duplication. Mr. Lalonde in this regard quoted from a letter the Prime Minister of Canada had sent to the Premiers on October 18, 1978 and in which he had indicated that a satisfactory resolution of the financial question would be an integral part of any agreement to eliminate particular instances of duplication. Mr. Lalonde hoped that work could begin at once on this project, beginning with an examination of the nine priority areas which the Premiers had already identified.

94. New Brunswick recommended that governments adopt the following principles in carrying out the exercise to eliminate duplication:

– decisions to withdraw services or financing must not be taken unilaterally without consultation between the governments affected;

– in areas where the financial consequences on either or both levels of government of a withdrawal of service were proportionally significant, there must be an appropriate and commensurate transfer of resources or financial responsibility;

– the guiding principle of the exercise should be the achievement of the most effective and efficient delivery of services to the public, and, in this regard, governments should not ovorlook the possibility of joint administration and delegation of administrative responsibility where desirable;

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– governments should agree to set aside those areas where the only possible solution is a change in the constitutional distribution of powers and deal with those separately; and

– governments should resolve to work cooperatively at both the political and administrative levels to achieve positive results as soon as possible.

95. A number of provinces indicated that they were encouraged by the federal government’s statement, and reaffirmed their support for the elimination of duplication in government services. British Columbia noted that it, together with other Western provinces, had expressed interest in pursuing this matter for over three years, and it welcomed the federal government’s response. Quebec emphasized the importance of the financial question to any efforts to eliminate services, and felt that it could cooperate in this work on the basis of the statement made in Mr. Trudeau’s letter of October 18, 1978. Ontario and Prince Edward Island urged that work on this matter should now be proceeded with without delay. Saskatchewan suggested that the federal government should use its influence with the Economic Council of Canada to ensure that the Council expedited the study it had been asked to prepare in relation to this question.

Other

96. At Saskatchewan’s request, the Conference agreed in principle to publish the Collation of Constitutional Proposals (1971- 1978) which had been prepared by the Secretariat to assist the First Ministers’ discussions.

Conclusion

Secretariat Note. Following their Conference discussions on the question of duplication of services, the First Ministers met privately over lunch to examine a draft communiqué. The Conference was adjourned later in the afternoon by the Chairman and a communique agreed to by the First Ministers subsequently issued (see Appendix C).

APPENDIX B

As I said at the outset of the Conference, and as many of the Premiers have stressed as well, there is an urgent need to demonstrate to our fellowcountrymen (and to ourselves) that early progress can be made on important constitutional questions. As Mr. Lalonde has just shown, the total task of constitutional renewal is complicated in the extreme. There are so many subjects to be dealt with, and so many factors to be taken into consideration. We have a major task in front of us and I will look forward to hearing your thoughts on how best to organize the work.

For my part, it seems to me that we will need to put in place some kind of special and effective arrangement to enable our joint effort to go forward as rapidly as possible over the next couple of years. It would also seem essential, if early progress is to be achieved, that some.sort of a priority list be prepared which can serve both as a guideline and an objective for the next few months. It is with these thoughts in mind that I would like to offer for your consideration a mechanism, and an “agenda for change”.

We could establish a Constitutional Committee which would meet frequently in the short term and regularly over the months thereafter. It could be made up of the Intergovernmental Affairs Ministers and the Attorneys General, and would be assisted by officials.

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The Ministers in question could be joined, as approprjate, by their various colleagues as particular powers came under study. We could each arrange matters so that rapid Cabinet consideration could be given to points of contention, even in the course of ministerial meetings, so that the decision-making process could be reduced from months to weeks.

We could try to reach agreement in principle, at this conference, on a number of high priority changes in the distribution of powers. These items could then be the subject of intensive work by the Constitutional Committee, so that detailed proposals, which our responsible ministers would hopefully have concurred in, could be ready for consideration and decision at our next conference on the Constitution, say, in January 1979. We could also decide upon a second priority list, or ask the Constitutional Committee to develop one, so that work could be put in train on the many other items which we will wish to study together. We ask only one thing in return: that you and your governments commit yourselves to rapid progress on those other aspects of constitutional renewal which we will discuss later, and to achieving a broad measure of agreement with us in those other areas.

To underline our commitment, and also to help in the setting of the priority list to which I have just referred, I wish to make specific proposals to the conference. These proposals are drawn from the lists which you, Premiers, have conveyed to me through Premier Lougheed’s letter of October 1976 and Mr. Blakeney’s letter of August 1978. Their selection has also been influenced by the views — and I might add in most cases,

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the strong views — which some of you have individually expressed in our correspondence. Finally, they reflect the federal government’s own assessment of what changes, among those you have proposed, are not only desirable, but also achievable over coming months.

I propose that we agree in principle, at this conference, to seek an appropriate method to place limits on the use of the federal spending power. Provincial governments have argued for years that the unrestricted use of this power by the federal government creates difficulties for the provinces. The federal government recognized as long as a decade ago that the limitation of this federal power would be in keeping with the spirit of Canadian federalism; and our recent budgetary difficulties have further reminded us that the lack of constitutional restriction on the federal power to spend is not always an unmixed blessing. I therefore put it to you that in this, as in other areas, the time for action has come. Subject to your agreement, I am willing to direct federal representatives on the Constitutional Committee to devise, in conjunction with your representatives, appropriate restrictions on the use of the federal spending power for payments to other governments and also to institutions and persons, where payments to those might significantly affect the affairs of provincial governments. I would assume that the provincial governments will also be willing to consider comparable limitations on their spending power when its use significantly affect: the affairs of the federal government.

The only caveat that I would make on this proposal is that, in our view, restrictions upon the federal spending power should not deprive us of effective means to achieve such national goals as equal treatment of Canadians, regardless of their residence, and alleviation of disparities among provinces and regions.

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I therefore propose that we agree in principle, at this conference, that the constitutional obligations of the federal Parliament regarding equalization and regional development be made explicit – indeed, more explicit than in our original proposals of last June. This has been a long-standing concern of the less affluent provinces, particularly in the Atlantic region. I was also encouraged to note that the more affluent provinces have explicitly or implicitly supported the concept of benefit-sharing for all through the federal government. Provinces might also wish to consider how best their own responsibilities for reducing disparities within each province, between areas and municipalities, might be expressed in the Constitution.

I propose that we agree in principle to devise a constitutional provision which would meet provincial concerns about the possible abuse of the federal declaratory power. There is the view expressed by the Premiers in the “1976 consensus” and there is also your new proposal, Premier Bennett, in this regard. I suggest that we instruct our representatives on the Constitutional Committee to come up with a procedure which might be acceptable to us all. In saying that, however, I want to make it clear that I think there must be some means by which the interest of the total Canadian community can be protected if, at some future time, a provincial government were to act in a way that would be quite contrary to the interests of the country as a whole. We have to envisage undesirable possibilities at a provincial level just as much as at the national level!

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I suggest that we agree in principle to revive the proposal made in 1969 by the federal government that provincial legislatures be allowed, within certain limits, to levy indirect as well as direct taxes. There was consensus at your meeting in Regina that “formal access of the provinces to the field of indirect taxation” is a matter “requiring early consideration” and I would agree that the time for action has come. The only conditions that I must make, as Prime Minister of the whole federation, are that the relevant constitutional provision be so drafted as to ensure that provincial taxation would not create impediments to interprovincial and international trade, and drafted in such a way as to substantially confine the burden of each province’s taxes within its borders.

I propose that we agree in principle to clarify the respective powers of federal and provincial authorities in respect of:

– the control, management and taxation of natural resources;

– the control and regulation of interprovincial and international trade.

The object, of course, being to ensure that both orders of government can acquit themselves of their responsibilities effectively, and that a fair share of the benefits from natural resources accrue to the people of the province where they are found, without depriving other Canndians of a reasonable share of these benefits. This is an aspect of the distribution of powers on which you, Premier Blakeney, and you, Premier Lougheed, hold strong

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views. Accordingly, I suggest that we and our colleagues not only agree to talk about it, but also try on an urgent basis to resolve the issue.

I propose that we agree in principle to remove consti- tutional impediments to the unification of family law under provincial jurisdiction. This is an area of social policy in which your government, Premier Levesque, and yours, Mr. Davis, have a keen interest. Moreover, most attorneys-general have encountered difficulties in their efforts to modernize and make more progressive our concepts and approaches to family law, difficulties that are hard to overcome within the existing constitutional framework. To facilitate these much-needed reforms within the provincial sphere, the federal government is therefore willing to consider substantial changes to its jurisdiction over marriage and divorce.

I propose that we agree in principle that the broad field of communications is one in which both orders of government have reasonable and legitimate interests. The present Constitution as interpreted by our highest courts over the years seems to assign almost the entire field to the Parliament of Canada. We believe, however, that today’s reality and the future as we can best foresee it require a more varied approach. There are many aspects of the field which would seem to be of clear national significance. There are other aspects where the significance is more of a local nature. We believe a renewed Constitution should reflect this and that we should try to work out together new constitutional

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arrangements, satisfactory to both orders of government.

Because of the complexities of the field and because of its rapidly developing technology, it will likely be difficult for us in the months which he immediately ahead to reach final conclusions on how a new constitutional provision should look in the overall. We think nevertheless that there may be some matters within the field on which we could reach early agreement, and I propose, therefore, that communications be added to the list of items for early and urgent attention.

I put forward these proposals for the early agenda of the Constitutional Committee, as I also put forward the important matters raised in Bill C-60, including the question of Rights and Freedoms, and the question of the Supreme Court. Indeed, I would hope the Constitutional Committee would be able to examine all these matters as well as the Constitutional Amending Formula before our next Conference. Much detailed work needs to be done on these various aspects of constitutional renewal — rights, powers and institutions. The “mix” I have just suggested was chosen because of my conviction that, with good will on all sides, it can be used to demonstrate to Canadians that constitutional renewal can really begin to take place.

Finally, I stress that the above proposals do not exhaust the federal government’s views on the distribution of powers. There are many areas where we will be ready to consider new arrangements to enable the provinces to better serve the people. There are

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other areas where we will ask that adjustments to the federal Parliament’s jurisdiction be considered, so that it, too, may promote more effectively the interests and well-being of all Canadians. The federal government would hope that items from both categories would be included on the second priority list which I have suggested we draw up. As I have said many times before, everything is “discussable” and negotiable, as long as we are talking about arrangements that fit within a true federation.

I now look forward to hearing your own proposals, and your reactions to the suggestions I have just made.

APPENDIX C

1. INTRODUCTION

The First Ministers of the Federation, namely the Prime Minister of Canada and the Premiers of the ten Provinces, assisted by their Ministers, met in Ottawa to discuss an agenda for constitutional renewal which included a Charter of Rights and Freedoms for Canadians; the Distribution of Powers between Parliament and the Provincial Legislatures; the Institutions of the Canadian Federation; and the process of constitutional revision, including, except for Quebec, patriation and an amending formula.

The Conference was attended on invitation by many observers, including the leaders of opposition parties in Parliament; Senators and Members of the House of Commons, and members of provincial Legislatures; members of the Task Force on National Unity; leaders of national and some provincial native organizations such as the National Indian Brotherhood, the Inuit Tapirisat of Canada, and the Native Council of Canada; and representatives of the Federation .of Municipalities of Canada and some provincial municipal associations.

2. THE RENEWAL OF THE CONSTITUTION

There was agreement among First Ministers on:

– the importance and urgency of constitutional change;

– the responsibility that rests on the federal government and provincial governments to find solutions to constitutional problems;

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– the need for all governments to adopt a flexible approach and to demonstrate a willingness to compromise; and,

– the need for all governments to devote time and effort to the task of renewal.

3. PROCESS OF RENEWAL

The First Ministers agreed:

a) to establish a Constitutional Committee composed of designated federal and provincial Ministers, including ministers of intergovernmental affairs, Ministers of Justice and Attorneys General, as appropriate. The Committee will be assisted by officials and will be joined, as appropriate, by other Ministers as particular powers come under study;

b) to make arrangements, within each of their governments, to ensure that rapid consideration will be given by their respective Cabinets to points of contention that might arise in the Constitutional Committee, to accelerate the decision-making process;

c) to ask the Constitutional Committee to provide them with interim reports on difficulties that might arise during its deliberations, which could prevent specific proposals being framed prior to their next Conference on the Constitution;

d) to direct that the Committee report to First Ministers before their next Conference on the Constitution;

e) to meet in conference, to consider and act upon the specific proposals of the Constitutional Committee, and other matters relating to the renewal of the constitution, the 5th and 6th of February, 1979.

APPENDIX D

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