Document Information

Date: 1978-10-30
By: Frank D. Moores
Citation: Federal-Provincial Conference of First Ministers, Opening Statement by the Honourable Frank D. Moores, Premier of Newfoundland, Doc 800-8/045 (Ottawa: 30 October-1 November 1978).
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DOCUMENT 800-8/045

FEDERAL-PROVINCIAL CONFERENCE
OF
FIRST MINISTERS

Opening Statement
by the
Honourable Frank D. Moores
Premier of Newfoundland

Ottawa
October 30-November 1, 1978

OPENING STATEMENT
by the
HONOURABLE FRANK D. MOORES
PREMIER OF NEWFOUNDLAND
at the
FIRST MINISTERS’ CONFERENCE ON THE CONSTITUTION
Ottawa, October 30, 1978

Mr. Chairman:

Discussions on changing the provisions of the B.N.A.
Act have been ongoing for decades but for a variety of
reasons have not met with success. The Province of New-
foundland welcomes this opportunity to express its views
on our constitution and possible changes to it, and it is
our hope that success will at last he attainable. Certainly,
we approach these discussions positively and in a spirit of
cooperation. There are a number of matters which are of
fundamental importance to our province just as there are
matters of fundamental importance to the Federal Government
and other provinces. If we can all recognize that such
constraints exist and that we must all work within them,
I believe agreement can be reached which will be equitable
to all the partners in this great confederation.

While any constitution essentially forms the basis
from which social, political and economic activity spring,
not all the stresses currently being felt in our nation
are caused by problems with our constitution. Many of
our problems have little to do with the B.N.A. Act and
merely changing it will not solve them. It is worth
remembering that the current constitution has served us
well for over a century and, if needs be, can continue to
do so in the future. In any free country a constitution
will only work if there is a collective will to make it
work and even the best conceived set of constitutional
arrangements will fail if there is no underlying spirit
of cooperation. Unfortunately, there has not always
been this spirit of cooperation on the part of the Federal
Government over the past few years. On the contrary, we
have seen the reasonably flexible provisions of the B.N.A.
Act being strained in their application by the federal
desire to expand in various resource areas. Concurrent
with this we have seen a lack of desire to enforce existing
federal powers with regard to free interprovinoial trade
particularly with regard to hydro-electric power. It is
passing strange that energy from Newfoundland is somehow
different than energy from other provinces and that the
same federal rules do not apply to all provinces to ensure
unimpeded transportation of energy across provincial territory.

Mr. Chairman, what we must strive for is a set of
constitutional arrangements by which we can all operate
independently within our own particular sphere and by which
we can effectively cooperate in the many areas where both
orders of government have a useful and legitimate role.
We must all recognize that there are essential roles for
both levels of government and our constitution must be
flexible enough to permit variations throughout the nation
to meet different needs in different regions at different
times.

While the Province of Newfoundland will be putting
forward its views and suggestions at this Conference and
at subsequent meetings and while some of these are con-
sidered vital to us, a fundamental principle to which we
fully subscribe is that there must be a strong federal
government in this nation. Therefore, while we feel there
are many desirable changes to be made in our constitution,
it is not our intention to undermine the ability and power
of the federal government to act for all Canadians when it
is in the national interest to do so.

By stating this fundamental principle we do not mean
to imply that only the federal government should be strong
and that the provinces should be weak. Quite the contrary.
We feel that within their own sphere, provinces should also
be strong and should have the resources necessary to
effectively implement their responsibilities, We do not
and will not subscribe(n proposals which will either create
weak provinces which cannot be viable or create a central
government which cannot act effectively. What is required
is a balance in our nation which will result in a strong,
but not omnipotent federal government, and strong provinces.
It is obviously not possible to state fully at this time just
which arrangements of constitutional powers would achieve
this result but our approach to these discussions will be
based on achieving this sort of balance in our nation.

Within this general context there are a number of
matters of vital concern to my Province which will
have to be resolved satisfactorily to make the process
of constitutional change meaningful and constructive.
It is my Province’s belief that a key issue in any con-
stitutional reform is the Division of Powers. It is this
factor that will most dramatically effect the balance
between the federal and provincial governments and which
will ultimately determine whether the fundamental
principle I have just stated, of a strong federal govern-
ment along with strong provinces, will be achieved. The
areas of major concern to the Province of Newfoundland
are the control over natural resources (in particular,
fisheries and the resources of the Continental Shelf),
uninterrupted interprovinoial trade (in particular with respect
to electricity) and items relating to taxing power,
communications, spending and declaratory powers.

Discussions on the Division of Powers must proceed
at the same time and along with those on institutional
changes. Jurisdictional and institutional issues interact
with one another in such a way that it is not possible to
develop a position on one in isolation from the other. It
is imperative, therefore, that a comprehensive approach be
adopted with respect to any constitutional reform.

Under the B.N.A. Act, provinces own the natural
resources and it is the ownership of these and the
exploitation of them which is the cornerstone of provincial
rights and viability. Unlike most of the other provinces,
however, Newfoundland is constrained in this regard in two
vital areas — the fisheries and offshore rights.

At the present time, the Province has virtually no
say in the management of the fishing industry even though
it is the basis on which Newfoundland was founded and even
though it is the basis on which much of our future lies.
The current situation is analogous to the Province of
Manitoba having no say in agriculture or the Province of
Alberta having no say in energy. We recognize that there
is a legitimatelrole for the federal government in our
fishery but at the same time we feel the federal government
must recognize that the Province has a legitimate role to
play as well. We believe strongly that any changes in our
constitution must include provision for a real and
meaningful input by the Province into the management of
our fishing resource and we are prepared to accept the
costs proportionate to our involvement as well as any
revenues involved. Serious consideration should be given to
attaining concurrent jurisdiction in this sector with provincial
paramountcy. We do not believe that this is an unreasonable
request or that it will in any way undermine the overall
power and authority of the federal government to manage
the national economy and deal with foreign nations. What
it will do is ensure that the Province will have an
effective role in a sector of the economy which is both
historic and vital to the development goals of Newfound-
land society.

Mr. Chairman, we also believe strongly that in the
development of a new constitution, the control of the
continental margin should rest with the Province. Again,
this is a resource sector where Newfoundland is quite
unlike most other provinces. The area of our continental
margin is some 500,000 square miles and when combined with
the 150,000 square miles of land mass means that Canada
gained rights over some 650,000 square miles of territory
in 1949. We believe the Province should have control
of its total resource area and we believe that if we are
to become a strong Province we must have the same degree
of control as other provinces.

How can Newfoundland ever hope to reach the same
degree of viability as other provinces if it only controls
one-quarter of its resource area? How viable would Alberta
be if it did not own the tar sands, or Ontario if it did
not own the southern half of the Province.

Once again we do not believe that Newfoundland’s
control of the resources of its continental shelf will in
any way decrease the power of the federal government to
manage the national economy effectively or perform its
other responsibilities. It would still obtain the same
benefits that now accrue to it from resources owned by
provinces such as onshore minerals, forests, energy, etc.,
and in our opinion would be fully entitled to them. We
do not believe that the federal government needs to control
three-quarters of Newfoundland’s resource area any more than
it needs to control three-quarters of any other provinces
resources. The Province of Newfoundland does need to control
100 percent of its resources, however, if it is ever going
to achieve the same degree of viability as other provinces
which already have 100 percent control.

Mr. Chairman, in this regard I was extremely concerned
over the insertion in Bill C-60 of Clause 32 which states:

“The territorial limits of Canada shall
include, in addition to the provinces
and territories described in paragraphs
3l(b) and (c), all other territory for
the time being forming part of Canada
but not included in any province or
territory described in either of those
paragraphs”.

The explanatory notes accompanying this states:

“This section would make it clear that
Canada includes some territory that is
not included in any province or territory,
such as territory under the territorial
waters of Canada”.

This unilaterally asserts federal ownership over the
continental shelf surrounding the Province of Newfoundland
and, as you know, our position is that the continental
shelf is owned by the Province. I believe that no action
should be taken on this question of resource ownership by
the Federal Government acting unilaterally.

During the next two days, I will be expanding on
these matters as they arise. For the present, however,
I want to go on record that in these two areas the
Province believes there must be an accommodation in any
new constitution to meet our legitimate needs, and it
will be extremely difficult for my Government to accept
any package of reform which does not address these two
central issues.

Mr. Chairman, in addition to these central questions,
there are quite a few areas relating to the constitution
where the Province of Newfoundland wishes to state its
general position and make suggestions. These include the
question of the role of the Monarchy, reform of the Senate,
the Charter of Rights, the Supreme Court and the more
general questions of provincial boundaries and amending
formulas. I would now like to make some comments on some
of these.

As you know, the Province of Newfoundland, along with
the other provinces, does not wish to see any changes which
will downgrade the existing status of the Monarchy as an
institution in our nation. I recognize that your stated
intent is to merely reflect the Current status of the
Monarchy and not to change it. Given this fact, what is
essential is to ensure that the relevant clauses reflect
this reality. While it appears that many of the provisions
do in fact simply state what is now current practice, the
fact that the powers of the Governor-General will now be
vested in him by Legislation and not through Letters Patent
by Her Majesty does represent a change, the implications of
which must be looked at more closely. I certainly believe
that the Monarchy is one area where no government wishes to
have heated debate, and I look forward to seeing this
question settled in a satisfactory manner.

Mr. Chairman, I welcomed your decision to refer the
question of Senate reform to the Supreme Court to
clarify any questions which provinces may legitimately
have with regard to federal power to do so under the
existing constitution. While this action will clarify
the right to make changes, there is still the question of
what changes are most desirable and achieveable and in
this regard, I would like to make several comments. In
general, I feel that many of the changes suggested are
reasonable. However, I do not feel the proposed method
of selecting representatives from each province is work-
able. I would suggest that serious consideration be given
to having fixed terms of office for those chosen and to
having the government of each province appoint the
provincial share. In fact, consideration might be given
to having all representatives chosen by the provinces
since a primary function will be to present regional views
on issues.

In addition, I do not think that the reformed senate,
whatever its final shape, should in any way undermine the
role which federal-provincial conferences play in making
our system work. Certainly, it is our view that the
development of this instrument, while far from perfect,
is a very important feature which provides a necessary and
vital mechanism for both orders of government to directly
discuss mutual problems and reach workable concensuses.

with regard to the Charter of Rights, the Province
of Newfoundland believes there is considerable merit in
entrenching certain rights. However, we do have a number
of reservations about entrenching some of the rights con-
tained in the proposed Charter, which, as you are aware,
goes well beyond that envisaged at Victoria. We recognize
that entrenchment of rights will not in itself protect
individuals and groups in our society. Some of the
most repressive regimes in the world today have
extensive rights entrenched in their constitutions
and some of the most humanitarian governments have no
guarantees of rights at all in their constitutions. I
believe it is true to say that any government bent on
abrogating civil liberties will not be restrained by a
constitutional bill of rights and any government bent
on upholding such liberties will not be deterred by the
lack of such a constitutional feature. Nevertheless,
while a constitutional bill of rights is not an absolute
guarantee of civil liberties, it is one technique for
preservation of rights and would tend to have a
restraining effect on any democratic government that
might at some future date contemplate the limitation
of some right.

Aside from the philosophical questions of entrenching
certain specific rights which I have already referred to,
there are practical implications inherent in entrenchment
which will pose very real problems for Newfoundland. I
will deal with these in greater detail when we come to that
specific topic during this Conference.

The proposed changes with regard to the Supreme
Court are generally acceptable to the Province of New-
foundland although we have some reservations regarding
certain aspects. For example, the proposal to have only
the Quebec judges review questions relating to Quebec
civil law may not be as beneficial as the present
structure where the common law and civil lay systems are
enriched by each other. In addition, while there is merit in
openness with regard to appointments to the Court, care must
be taken to ensure that the independence and impartially of
judges is notyundermined through a process of political
and public interrogation. Finally, we see no compelling
reason to increase the size of the court nor to have a
separate Constitutional Tribunal within it but we do not
feel strongly on either of these issues. There is one
aspect relating to courts which is not covered in the
current proposal but which we have long felt is necessary
and that relates to consultation with the provinces with
regard to appointments to the provincially constituted
court at the Superior, District or County Court level.
I would like to suggest that appropriate sections be
included in the proposals to take account of this short-
coming.

Mr. Chairman, as I indicated at the beginning, the
Province of Newfoundland is dedicated to national unity
and to the concept of having a strong central government
as well as strong and viable provinces. In a nation such
as we have, it is essential to have a central government
which can effectively fulfill its mandate particularly
with regard to the distribution of income throughout the
nation by transfers between governments and directly to
individuals.

In this regard, we believe that there should be a
strong commitment to overcoming regional disparities in
the constitution. We recognize that it would be virtually
impossible to write a quantifiable commitment in a con-
stitution and so the best that can be attained is a
qualitative statement. Given this fact, we feel that
there should be a formal review, by way of a Royal Commission,
say every ten years, to report on progress and recommend
measures to improve efforts. Mr. Chairman, we believe
that both the commitment to overcoming regional disparities
and the periodic review process should be included in the
constitution.

The constitution should provide each province the
chance to develop its own economy to meet its particular
needs. No province should be placed in a position where
it will likely always be disadvantaged because of external
constraints. I have cited two specific examples with
regard to Newfoundland. Unless we have the means to
develop our resources on a basis similar to other provinces,
it is going to be extremely difficult for us to overcome
many of the regional disparities with which we are now
faced. However, we have the resources to become a strong
viable province and we look to the revamped constitution
as a means which will permit us to achieve this objective,
which is common to both our governments.

Mr. Chairman, we will support the need for a federal
government which has the mandate and the power to effectively
manage its national and international responsibilities
including its responsibilities to see that all Canadians
receive a reasonable standard of public services. In
return. we look to the support of the federal government
and the other provinces to ensure that we have the same
degree of control over our destiny that other provinces
now enjoy. I believe you will agree that indeed this is a
common goal for the federal government and all the provinces
and can be achieved without decreasing the ability of the
federal government to perform its responsibilities and
without adversely affecting the aims and objectives of
other provinces.

We have discussed constitutional change for decades.
Now is the time for action.