Federal-Provincial Conference of First Ministers on the Constitution, A New Brunswick Proposal to obtain wider support for the Constitutional Resolution (2-5 November 1981)
By: New Brunswick
Citation: First Ministers’ Conference on the Constitution, A New Brunswick Proposal to obtain wider support for the Constitutional Resolution, Doc 800-15/013 (Ottawa: 2-5 November 1981).
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FEDERAL-PROVINCIAL CONFERENCE OF FIRST MINISTERS ON THE CONSTITUTION
A New Brunswick Proposal to obtain wider support for the Constitutional Resolution
2-5 November 1981
A NEW BRUNSWICK PROPOSAL TO OBTAIN WIDER SUPPORT FOR THE CONSTITUTIONAL RESOLUTION
New Brunswick, which has consistently supported the Constitutional Resolution now before Parliament, is hopeful that Parliament will be able to approve a Resolution which has the widest possible support among the Canadian people.
The Resolution contains a number of elements which are of fundamental importance to the people of New Brunswick including constitutional recognition of the language rights of New Brunswickers, minority language education rights, an entrenched Charter of Rights, provision for equalization, confirmation of the Monarchy and, of course, Patriation.
While New Brunswick has given its unconditional support to the Resolution, it reserves the right to work toward changing some of it provisions now and once it has been returned to Canada from Great Britain. The opportunity for further discussion and amendment of the Constitution in the early years of its Patriation, provided for in the current Resolution, was a compelling factor in the Province’s decision to give unconditional support.
In the last months many Provinces have not been able to support the Resolution. Their opposition has caused a deepening rift in the traditional cooperative approach to government in this country which has been the proud hallmark of Canadian federalism for many years.
What the reasons for this clear division the Canadian people are becoming impatient with the failure of the Governments to deal effectively with this fundamental aspect of their life.
New Brunswick has always been willing to discuss both the substance and process of the current Resolution with a view toward finding a way out of this impasse. The frustration of many Provinces to obtain from negotiations the constitutional provisions which they believe to be necessary is understood.
At the same time, New Brunswick believes that it is vital for this country that we patriate the Constitution and that this Constitution contains provisions for an entrenched Charter of Rights, equalization and language rights.
In light of this, New Brunswick suggests that the Resolution before Parliament could be altered to ensure a substantial Constitution while at the same time providing ample opportunity for continued discussion and decision on many matters on which there is an honest difference of opinion.
To do this, New Brunswick proposes that Governments agree to a simplified Charter containing the essential and universally-accepted fundamental freedoms and democratic rights, together with minority language education rights, provisions affecting language rights for New Brunswick and the Federal Government and mobility rights.
All other provisions of the Charter of Rights would be suspended for a three-year period.
In addition, an amending formula would be approved at the Constitutional Conference. New Brunswick suggests a formula containing elements from the “accord” signed last April by the Eight Premiers and the amending process proposed by the Province of Saskatchewan to the joint Senate-House of Commons Committee on the Constitution earlier in the year.
The remaining provisions of the Constitutional Resolution including those dealing with provincial legislative powers over natural resources and equalization would come into effect immediately, with the exception of the provision dealing with aboriginal and treaty rights of Canada’s native people which could be discussed further and amended during the three-year period.
During the time in which parts of the Charter are suspended, the Constitutional Conferences already provided for in the Resolution would be used as a means of negotiating clauses in the remaining rights by using the amending formula. If this failed and provinces were still determined to oppose them, the opposition of six legislatures would be sufficient to repeal any of the suspended rights.
If this did not happen, or if those opposing failed to obtain a sufficient number of legislative approvals, the rights would automatically become law.
Finally, the veto of the Senate over certain changes in the Constitution would be removed and replaced with a suspensive veto of 180 days.
New Brunswick believes that this proposal satisfies the concerns of all Governments, providing as it does a substantial Constitution including a Charter of Rights while at the same time allowing ample time for further discussion on matters of controversy as well as a means of removing sections of the Charter should enough Legislatures be determined to do so.
THE SPECIFICS OF THE PROPOSAL
New Brunswick suggests that the proposed resolution be altered in the following respects:
Charter of Rights
Only certain provisions of the Charter would come into force immediately. These include:
Guarantee of Rights and Freedoms (Section 1)
Fundamental Freedoms (Section 2)
Democratic Rights (Section 3-5)
Mobility Rights (Section 6)
Official Languages of Canada (Sections 16-22)
Minority Language Educational Rights (Section 23)
General (Sections 25, 26, 29, 30, 31)
The remaining provisions of the Charter of Rights would be enacted, but would not come into force for three years. These include:
Legal Rights (Sections 7-14)
Equality Rights (Section 15)
Enforcement (Section 24)
General (Sections 27, 28)
This concept of deferred application for three years presently exists in the Charter, but applies only to section 15.
During this three-year period these provisions would be placed on the agenda of the proposed Constitutional Conferences (see proposed amendment to Section 36). At the end of this period six provinces acting together could prevent the coming into force of any provision by depositing resolutions of their legislative
assemblies with the Clerk of the Privy Council opposing the coming into force of the provision. Such a resolution could be adopted at any time after two years had elapsed from the coming into force of the other provisions of the Act (see proposed amendment to Section 65). The two-year restriction is designed to ensure at least two years of open discussion prior to a commitment being made by a legislative assembly, during which a consensus on the scope of the Charter might be reached and an amendment secured, if necessary.
The amending formula, to become operative immediately, would be based on elements of the Saskatchewan proposal of December 19, 1980 (Brief presented to the Special Joint Committee on the Constitution by Premier Blakeney), and on elements of the April accord of the eight opposing provinces. Basically, the formula would require the approval of Parliament together with the legislative assemblies of at least a majority of the provinces representing at least sixty per cent of the population of Canada, including at least two Atlantic and two Western provinces.
However, the requirement of Senate approval of a proposed amendment could be by-passed after one hundred and eighty days.
Further, an amendment that would derogate from the proprietary rights of a province or would alter the boundaries of a province or the use of French or English within an area of provincial responsibility would require the approval of the legislative assembly of that province.
These provisions have been incorporated in a revised section 46. Part VI of the Constitution Act, 1981, would otherwise remain intact. However, Sections 47 and 51, dealing with Referendum procedure, would not come into force for three years and would be subject to being removed from the Act by resolutions of the legislative assemblies of six provinces (see proposed amendment to section 65).
Rights of the Aboriginal Peoples of Canada
While section 25 of the Charter would come into force immediately, section 34 of the Act, which recognizes and affirms the aboriginal and treaty rights of the aboriginal peoples of Canada, would not come into force for three years, pending further discussion of this subject at the Constitutional Conferences to be held pursuant to section 36 (see subsection (5) of proposed amendment to section 65).
In all other respects the Constitutional resolution, as it existed on April 24 1981, would remain intact.
TEXT OF SUGGESTED AMENDMENTS
Section 32 – Delete subsection (2)
Section 36 – Strike out the words “Until Part VI comes into force” where they appear in subsection (1) and substitute: “During the three years after the day fixed by proclamation pursuant to selection 64”.
– Delete subsection (2) and substitute:
(2) A conference convened under subsection (1) shall have included in it agenda
(a) an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item; and
(b) an item respecting the provisions of this Act referred to in subsection 65 (1).
– Add subsection (4) as follows:
(4) After three years from the day fixed by proclamation pursuant to selection 64 this section may be repealed, and this Act may be renumbered consequential upon the repeal of this section, by proclamation issued by the Governor General under the Great Seal of Canada.
PART V- Delete
Section 46- Delete and substitute the following:
- (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by
(a) resolutions of the Senate and House of Commons; and
(b) resolutions of the legislative assembles of at least a majority of the provinces representing sixty per cent of the population of Canada, including
(i) two or more of the Atlantic provinces, and
(ii) two or more of the Western provinces.
(2) In this section,
“Atlantic provinces” means the provinces of Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland;
“Western provinces” means the provinces of Manitoba, British Columbia, Saskatchewan and Alberta.
(3) An amendment to the Constitution of Canada may be made under subsection (1) or section 48 without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the passage by the House of Commons of a resolution authorizing its issue, the Senate has not passed such a resolution and if, after the expiration of those one hundred and eighty days, the House of Commons again passes the resolution, but any period when Parliament is dissolved shall not be counted in computing the one hundred and eighty days.
(4) Notwithstanding subsection (1), an amendment to the Constitution of Canada that would
(a) derogate from the proprietary rights of a province,
(b) alter the boundaries of a province, or
(c) alter the use of the English or the French language within an area of provincial legislative authority,
shall not be made without authority of a resolution of the legislative assembly of that province.
(5) Notwithstanding subsection (1), an amendment to subsection (4) or to section 92A shall not be made without authority of resolutions of the legislative assemblies of all the provinces.
Section 56- Strike out the words “and Parts IV and V of this Act” where they appear in subsection (1).
– Delete subsection (2) and substitute:
(2) This section may be repealed, and this Act may be renumbered consequential upon the repeal of this section, by proclamation issued by the Governor General under the Great Seal of Canada.
Section 65- Delete and substitute:
- (1) Subject to subsections (2) and (3), sections 7, 8, 9, 10, 11, 12, 13, 14, 14, 24, 27, 28, 47, and 51 shall come into force three years after the day fixed by proclamation pursuant to section 64.
(2) Prior to the time provided in subsection (1) for the coming into force of the sections referred to therein, any province may deposit in the office of the Clerk of the Privy Council a resolution of the legislative assembly of that province, if adopted after two days years have elapsed from the day fixed for proclamation pursuant to section 64, opposing the coming into force of any section referred to in subsection (1); and any resolution so deposited may be withdrawn.
(3) A section referred to in subsection (1) shall not come into force if, on the day the section would otherwise come into force, there remain deposited in the office of the Clerk of the Privy Council resolutions of the legislative assemblies of six provinces opposing the coming into force of the section.
(4) Where, pursuant to subsection (3), a section does not come into force as provided in subsection (1), the section may be repealed, and this Act may be renumbered consequential upon the repeal of the section, by proclamation issued by the Governor General under the Great Seal of Canada.
(5) Section 34 and paragraph 55 (c) shall come into force three years after the day fixed by proclamation pursuant to section 64.
(6) After three years from the day fixed by proclamation pursuant to section 64 this section may be repealed, and this Act may be renumbered consequential upon the repeal of this section, by proclamation issued by the Governor General under the Great Seal of Canada.
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