Document Information

Date: 1969-02-10
By: Secretariat of the Conference
Citation: Constitutional Conference, Broadcasting and Satellite Communications (Ottawa: 10-12 February 1969).
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THIS DOCUMENT IS THE PROPERTY OF THE GOVERNMENT OF CANADA
CONFIDENTIAL
BRIEFING PAPER

The Constitutional Conference – February 1969
BROADCASTING AND SATELLITE COMMUNICATIONS

Current Federal Initiatives

The federal government over the past year has
taken the following initiatives in the field of broad-
casting, and in all of these, questions are raised or
have been rasied by provinces (in nearly all cases
Quebec) over federal jusitification of its position.

Initiatives have been taken in the fields of:

-General Broadcasting, where through a new Broad-
casting Act, the federal government has recons-
tituted an independent public regulatory authority
(the Canadian Radio-Television Commission) with
the objective of creating a stronger regulatory
instrument for supervising the Canadian Broad-
casting System – itself redfined and given
new general objectives (for both the private
and public systems) in the Act.

– Satellite Communication, where, as set out in the
White paper tabled last April, steps are being
taken to develop, as a joint government and
private undertaking, a Canadian domestic
communications satellite, in order to provide
more extensive, faster and cheaper communications,
including broadcasting, telephonic, and data
communication purposes.

– Educational Broadcasting, where, as the government
has announced, legislation is to be proposed
providing for the establishment of a Crown cor-
poration to own and operate transmission facili
ties to serve provincially controlled educational
broadcasting requirements and interests.

The Federal Interest

The broad basis for federal involvement is of
course that broadcasting and public communication vehicles
are a vital national resource that require regulated deve-
lopment for the public good, so that competing demands are
regulated, a coherent and progressive system can develop,
and abused can be prevented. That the federal initiatives
have expanded so rapidly in the past few years is merely
a reflection of course the “expanding universe” of commu-
nications and it significance as a major national resource.

The Exercise of Federal Jurisdiction

The federal government’s jurisdiction over
broadcasting rests not simply on the interpretation of
the Constitution by the courts (notably the 1932 Privy
Council decision that the federal government has

-2-

exclusive legislative power to regulate, and control
radio communications in Canada), but just as important
is the uninterrupted exercise of that jurisdiction over
many decades, and the recognition of the federal govern-
ment’s competence to do so throughout that period by
Canadians and by foreign states, as well as in fact by
all provinces. While the original Privy Council decision
did not relate to broadcasting but to radio communication,
the exercise of federal regulatory authority in respect
of broadcasting (one of the several uses to which radio
can be put) has never been challenged, and is not now
being challenged by any province. Subject to challenge
is the way in which, as a matter of federal policy, the
jurisdiction has been exercised.

Federal policies

Federal jurisdictional responsabilities in
respect of the uses to which radio transmission facilities,
subsequently television, and now satellite, may be put.
The essential of that policy has always been that the
content of broadcasting must in a free society be freely
formulated – that governments must keep themselves at
“arm’s length” from involvement in and control over
broadcasting. Government’s only role is to lay down in
the public and national interest the general principles
that must guide broadcasting, and intervene only where
the abuses occur. Thus the independence from government
of the Canadian Radio-Telvision Commission. Thus the
stipulation that provincial governments shall not be
licenced to enter the field of general broadcasting.

Subject to the principles laid down by the
Parliament of Canada, then, and to the application of these
principles by a completely indenpendent authority repre-
senting the interests of all Canadians, the real force
in determining broadcasting content in Canada is the owners
of the broadcasting facilities and their employees, and
their determination is largely governed by the rules of
free entreprise. The government’s ownership of the
national broadcasting service, the CBC represents the
only involvement of a public authority in the field of
broadcasting, and there, too, elaborate measures have
been taken to preserve the independence of the Corporation.

Provincial Claims

Provincial governments have never been owners of
facilities for general broadcasting. That no licences are
to be issued to provincial governments or their agents will
be the subject of a new directive from Cabinet to the CRTC
shortly. It has always been national policy that except
for the Canadian Broadcasting Corporation, only private
parties should be licenced for general broadcasting purposes.

The case developed by any province supporting
their right to enter the field of general broadcasting
arises of course in relation to broadcasting content. To
the extent that some types of broadcasting content relate
to matters of provincial jurisdiction or prime provincial
interest, the case can be made that the provinces have a
right to be permitted control, in some sense, of broad-
casting content and by extension the required transmission
facilities. Quebec has mounted such a case, claiming that its
jurisdiction over education and responsability for related
cultural pursuits entails a right to control educational
broadcasting.

In the areas of general broadcasting, educational
broadcasting and satellite communications, the essentials
of provincial arguments will be that federal jurisdiction
ought to be limited to a regulatory control over tran-
mission processes, the allocation of frequencies and
related housekeeping matters. The federal role in these
terms would be to prevent broadcasting chaos rather than
to ensure that a Canadian broadcasting system is developed,
and developed in the public interest.

The federal case is that a responsibility for
transmission in the field of general broadcasting cannot
be divorced from control of the general uses to which
transmission facilities are put, and that the exercise of
this responsibility will not prevent provinces from pursuing
their legitimiate interests – particularly in educational
broadcasting. In fact, positive steps are being taken to
encourage provinces to take initiatives in the field at an
early date.

As regards, general broadcasting, however,
provincial competence in matters of education would appear
to be no more germane than federal competence in other
matters of its own jurisdiction, and there would seem to
be no more reason to admit any special provincial interest
now than there has been in the past. Culture is no more
a field of constitutional jurisdiction than is information
or research, and it cannot be considered a basis for prov-
incial competence in any aspect of broadcasting, at least
inso far as the present Constitution is concerned.

In what follows, the provincial, and the federal
cases will be set out concretely in respect of the three
areas of current federal initiative.

EDUCATIONAL BROADCASTING

“L’éducation étant de notre ressort
exclusif, et son complément, la culture, une
responsabilité prioritaire pour le Québec,
tout le domaine de la radio et de la télé-
vision éducatives doit être controlé par
le Québec sur territoire, et sous tous
ses aspects.” Premier Bertrand, le 25 novembre, 1968.

The Proposed Federal Policy

To introduce legislation to provice for the
creation of a Canadian Educational Broadcasting Agency which,
subject to the Broadcasting Act, would conduct tranmission
facilities and rent them out as required to meet the
needs of provincial educational broadcasting. Provision
would be made for the broadcasting of programs approved by
an educational broadcasting authority each province would
be expected to establish. What is to constitute “educational
programming” will be stipulated in the proposed Bill.

The policy was designed to draw a sharp distinc-
tion between the content, “educational programming” (to
be defined in a narrow and formaly way) and the transmission
facilities, and correspondingly a sharp distinction would
be drawn between provincial control over the educational
programming and federal control over tranmission facilities.

Quebec’s Case

Its case has been stated in different ways.
Most relevant is Premier Bertrand’s November speech to
the “Association canadienne de la radio et télévision de
langue francaise”. The tone of his argument is best set
out in this proposition (which had a certain moderacy to
it), “in broadcasting, it is obvious that Quebec must
reserve a role that is exclusive in matters of teaching
and formal education, and a necessary role in matters of
culture and education in a broader sense”. Exclusive
jurisdiction in educational broadcasting, he argued,
entailed the right to define what constitutes such broad~
casting, and the right to control of the transmission
facilities. If private enterprises were entrusted with
licences, why not Quebec in matters of educational broad~
casting? He attacked the federal policy as being based
upon the political consideration of distrust of provincial
activities. The federal government feared it would be
impossible to effectively regulate provincial governments
if licenced to broadcast (this is so), and he charged this
was unfounded. A control of transmission facilities can
lead, he argued further, to influence of content. Premier
Bertrand argued that the Constitutional discussions must
take up “broadcasting”, and that in the meantime Quebec
would totally reject the federal policy on grounds not so
much of its unconstitutionality (Ottawa has licencing
authority, he recognized), but in terms of a bad policy,
based upon distrust of provincial governments.

A Federal Response

There are many types of response.

A discussion of broadcasting during the course
of the discussions of division of powers could be recognized
as desirable.

A debate on the current federal policy on edu-
cational broadcasting is, however, what Quebec will press
for, and the response here can be twofold. We can indicate
that the federal policy over educational television is
being discussed with all provinces by the Task Force on
Educational Television, particularly to clarify the points
that might concern provinces as being intrusions into the
jurisdiction over content – the definition of educational
broadcasting, the “spare time” issue, the proposed functions
of the ETV Agency. There has been in fact insufficient
consultation on these matters to date, and during future
consultation a number of provincial points should be
examined carefully. To date, only Alberta has been visited.

As regards the basic policy decision over federal
ownership of transmission facilities as a means of pro-
tecting the regulatory powers of the federal government,
the public defense of this cannot be based upon distrust.
its single base must be “content and carrier” in this field
are separable….if education is defined as a formal and
narrow way. To the degree that Quebec at this point
publicly argues that it wished to define “education” in a
much broader way than has the federal government, the
implicit fears of the federal government will find their

own public justification. This again suggests, however,
that the federal government must, while insisting upon
the final stipulation of what will constitute educational
broadcasting, be prepared to negotiate the definition.

SATELLITE COMMUNICATIONS

“Nous voulons agir avec ordre et efficacité.
Nous voulons un système intégré et complet
couvrant non seulement l’éducation et la
culture, mais aussi la trasnmission de
données et les échanges entre les banques
de savoir. C’est d’ailleurs dans cette
perspective que nous avons songé aux
satellites de communication. Ce système
intégré, l’efficacité exige que nous le
contrôlions en entier, ce qui n’empêchera
pas une collaboration et des échanges avec
les autres provinces et avec le gouvernement
fédéral les cas échéant”.

Premier Bertrand, le 25 novembre, 1968.

The Government Policy on Satellites

Satellites in general, and communications satel-
lites in particular come within exclusive federal juris-
diction through their nautre, as essentially international
objects, and also through their use of radio waves. This
statement of policy was made in the White Paper on a
Domestic Satellite Communications System for Canada,
published on 28 March 1968 (p.63).

It is an established policy that Government
control of communications is a basic element of national
security (White Paper p. 56)

A domestic communications satellite system con-
sisting of satellites and earth stations is a national
undertaking operating under the jurisdiction of the Govern-
ment of Canada (White Paper p. 44). Such a aystem is
capable of extending national television services in the
French and English languages to all parts of Canada and
is an important part of Government policy (White Paper
p. 56)

The Government intends that a corporation will
be formed by special statute of Parliament to develop, own
and operate both the satellites and eartn stations of a
(domestic) system (White Paper p. 50). The Government
intends to regulate both rates and practices of a satellite
system as necessary, to safeguard the public interest
(White Paper p. 58, 60).

Under the COTC Act, Parliament has given to the
Canadian Overseas Telecommunications Corporations reponsi
bility for overseas international communications, including
those by satellite. The COTC is the Canadian signatory to
the interm INTELSAT agreement, and the entity responsible
for the Canadian presence in INTELSAT.

Reasons for this Policy

The International Character of Space

The Treay on the Peaceful Uses of Outer Space,
which was ratified by Canada and which entered into force
on 10 October, 1967, states that space “is not subject
to national appropriation”. The space segment of a
communications sytem is international by its very nature
(White Paper p. 62).

Negotiations with foreign countries for launching
services, and the use of radio frequencies and satellite
positions in synchronous orbit, touch upon complex and
sensitive areas of national and international policy.
The Government of Canada is the only Canadian body which
can negotiate with other countries in these fields
(White Paper, p.56).

National Undertaking

By pre-empting the field, the Government is
exerting its jurisdiction and control over satellite
communications systems as “works or undertakings extending
beyond the Limits of a Province” (BNA Act Section 92, 10(a).
The Government is also forestalling provincial ownership
of earth stations, or the control or regulation of satellite
undertakings by Provinces, which might bring a Province
into conflict with areas of jurisdiction of the Federal
Government such as international affairs, or the regula-
tion, registration and licensing if users of radio, or of
space vehicles.

International Communications

The Government occupies the area of jurisdiction
of international communications through its chosen ins-
trument, the Canadian Overseas Telecommunications Corpora-
tion, a telecommunications common carrier which provides
communications services to public and private users, without
restriction or limitation on message content, use, etc.

The Government negotiates internationally on
behalf of Canada, in the field of communications, for
example for the use of radio frequencies, participation
in the International Telecommunications Union, INTELSAT,
or with the USA for trans-border broadcasting.

The Position of Quebec

Quebec maintains that her exclusive jurisdiction
over education requires that the Province control the
means of distributing educational material, for example,
via communications satellite. M. Cardinal has called
the satellite “a black-board in the sky”.

Secondly, Quebec has international aspirations,
in this field, as evidenced by the recent letter (attached)
from the Foreign Minister of France, to the Minister of
Education of Quebec concerning joint activities by France
and Quebec in the Symphonic satellite communications project,
and its

The Arguments of Quebec

Quebec argues that jurisdiction over education
gives concurrent jurisdiction over the means of distri-
bution of educational material. Quebec therefore claims
shared jurisdiction with the Federal Government over
telecommunications, including satellites, and broadcasting.

Secondly, Quebec may claim that an earth station
is a provincial work or undertaking, wholly situate within
the Province, though such a statement has not yet been
made formally.

The Role of the Provinces

Provinces may make use or domestic or international
satellite systems for provincial purposes through a com-
mercial agreement with the corporations established by
Parliament, e.g., TELSAT Canada or COTC.

Provinces may produce and distribute by satellite
educational or other program material by this means,
without any limitations other than those of purely tech-
nical or economic nature.

Provinces may also, either directly or through
provincial corporations, participate in the ownership of
corporations established by Parliament to develop, own
and operate communication satellites and earth stations.

All communications satellites or earth stations,
including those which might be owned by or for a Province
or Provinces, are subject to licensing under the Radio Act,
and are also subject to such regulations as may be pres-
cribed by Parliament in accordance with the laws of Canada,
or in consonance with Canada’s international obligations
and commitments.

GENERAL BROADCASTING

“La radio et la television ne sont pas
dissociable des autres moyens audio-
visuels dans l’éducation. Comme moyens
techniques, la radio et la télévision ne
sont pas appelés à servir exclusivement
les besoins de l’éducation, mais d’autres
besoins qui sont aussi de la compétence
du Québec. Et tout cela fait partie
d’un ensemble encore plus vaste qui
fait qu’un système intégré de télé-
communications n’est qu’un aspect du
problème des communications en général.
Dans ce domaine, nous avons plusiers
projets à l’étude”.

Premier Bertrand, le 25 novembre, 1968.

The argument of the province of Quebec in respect
of general broadcasting is dependent upon what it now would
term its “necessary” roles in matters affecting culture
and public education. The argument set out by Premier
Bertrand in his November statement was that, in a federal

State, the provincial governments have the right to at
least the same degree of entry into broadcasting as has
the central government. In mounting its case in relation
to general broadcasting, Quebec continually makes reference
to educational broadcasting, since the terms of its argu-
ments here are a nature extension of these former ones.
The federal responsibilities are really over the licencing
of transmission facilities, for reason of good order
and coherence, …”but allocating frequencies is something
quite different from controlling broadcasting”.

What of a concrete nature Quebec might wish
to argue is unclear, as is clear from Premier Bertrand’s
statement quoted above.

At the February 1968 Constitutional Conference,
Quebec focussed its comment upon the make-up of the
regulatory authority and the CBC. “The composition of
these two organizations must give a truer image of the
country’s bicultural dimension. To that end, a number –
to be determined later – of members of the boards of
directors of both organizations should be appointed
directly by Quebec”.

A Possible Response

Unlike educational broadcasting, a long standing
policy exists, and no serious challenge or argument has
been made against it. It is, in fact, the federal practices
that are seriously under attack, namely the way in which
the governing boards of the CBS and the CRTC are in prac-
tice constituted. The response must be on such particular
questions as this – that the federal is taking seriously
the proposal adopted by the 1968 Conference to study “the
reform of institutions linked to federalism, including
the Senate and the Supreme Court”, and would consider the
examination to include its major institutions in the field
of broadcasting.

Conclusion and Recommendation

Quebec will surely outline it is brief and
during debate its position that jurisdiction over education
and related areas entails control in some circumstances,
at least a necessary involvement in others. It will argue
the interrelatedness of broadcasting content, and thereby
the interrelatedness of controls over the “carrier”. It
will most likely acknowledge federal responsibility for
‘control of frequences’, and related regulations respon-
sibility but consider them purely technical functions.

The federal response can be, if detailed argu-
ments are taken up, that in the area where carrier and
content and separable, ie. education, broadcasting, the
federal government has in its proposed policy recognized
the exlcusive jurisdiction of the provinces. If Quebec
disputes the policy on adopted by the federal government,
it can pursue the points in the process of consultation
that is being systematically undertaken.

PAGE QUATRE 248 CONFD

CETTE UNIVERSITE ON PERSONNELS FRANCAIS, QU’IL SAGISSE D’AUTRES
PROFESSEURS, DESQUIPES DE CHERCHEURS OU DE PERSONNALITES EMINENTES
DE L’ENSEIGNEMENT SUPERIEUR FRANCAIS, FINCIT.

4.TEXTE DE LA LET CONCERNANT LES SATELLITES: CIT

M. LE PRESIDENT,

AFIN DE DISPOSER DANS LES MEILLEURS CONDITIONS DES MOYENS TECH-
NIQUES NECESSAIRES POUR LE DEVELOPPMENT DES ECHANGES ET DE LA
COOPERATION DANS LES DOMAINES DE L’EDUCATION ET DE LA CULTURE, ET
VU L’IMPORTANCE QUE REVETENT A CETTE FIN LES MOYENS DE TELECOMMUNI
CATIONS PAR SATELLITE, J’AI L’HONNEUR DE VOUS FAIRE SAVOIR QUE MON
GOVT EST PRET A ETUDIER AVEC LE VOTRE LE DEVELOPPEMENT D’UNE COOPE
RATION DANS CE DOMAINE.

A CET EFFECT, ET LA SUITE D’ENTRETIENS CONSACRES A CE PROBLEME,
JE VOUS PROPOSE CE QUI SUIT:

1) DES INGENIEURS ET DES TECHNICIENS QUEBECOIS SERONT ASSOCIES A
LA CONSTRUCTION DU SATELLITE SYMPHONIE, DES STATIONS TERRIENNES, ET
DES INSTALLATIONS AU SOL NECESSAIRES, ET EVENTUELLEMENT DES SATELLI
TES QUI SUIVRONT EN EFFECTUANT DES STAFES DANS LES DIVERS ORGANIS
MES NATIONAUX FRANCAIS CHARGES DE LA GESTION DE CE PROGRAMME.

EN OUTRE, TOUTES DEMARCHES UTILES SERONT ENTREPRISES EN VUE DE
FAVORISER DES STAGES ANALOGUES DANS LES DIVERSES SOCIETES FRANCAISES
CHARGEES DE LA REALISATION DE CE PROGRAMME.

2) LA FRANCE ET LE QUEBEC COOPERONT POUR L’UTILISATION DE CE SATEL
LITE, DANS LE CADRE DU PROJET SYMPHONIE, PAR L’ECHANGE DE PROGRAMMES
EDUCATIFS, CULTURELS ET SCIENTIFIQUES EN LANGUE FRANCAISE.

PAGE CINQUE 248 CONFD

D’AUTRE PART, LA FRANCE ET LE QUEBEC ELABORERONT ENSEMBLE UN PROJET
DE SATELLITE DE TELECOMMUNICATIONS DONT LA MISSION SERA D’ASSURER
D’UNE MANIERE PLUS CONSTANTE ET PLUS LARGE DES ECHANGES DE PROGRAMMES
EDUCATIFS, CULTURELS ET SCIENTIFIQUES EN LANGUE FRANCAISE.

LA DECISION CONCERNANT LA REALISATION DE CE PROJET, OU DE TEL
AUTRE QUI POURRAIT ASSURER DANS D’ASSUI BONNES CONDITIONS LES MEMES
MISSIONS, SERA PRISE EN TEMPS UTILE.

LES ORGANISMES FRANCAIS ET QUEBECOIS COMPETENTS COOPERERONT, EN
TANT QUE DE BESOIN, POUR L’ETUDE ET LA CONSTRUCTION DES STATIONS
TERRIENNES ET DES INSTALLATIONS AU SOL NECESSAIRES.

LE CENTRE NATL D’ETUDES SPATIALES POUR LA PARTIE FRANCAISE ET LE
BUREAU DE LA PARTIE FRANCAISE ET LE
BUREAU DE DEVELOPPMENT AUDIO-VISUEL POUR LA PARTIE QUEBECOISE
CREENT UN GROUPE DE TRAVAIL MIXTE EN VUE D’ASSURER LA BONNE EXECU
TION DES ENGAGEMENTS PRIE.

IL EST MAINTENANT ENTENDU QUE LES DEUX GOVTS SUPPORTERONT
A PARTS EGALES LES FRAIS ENCOURUS.

SI LES TERMES DE LA PRESENTE LET RECONTRENT VOTRE APPROBATION,
VOTRE RESPONSE CONSTITUERA AVEC CETTE LET L’ACCORD DE NOS DEUX GOVTS
VEUILLEZ AGREER, M. LE PRESIDENT, L’ASSURANCE DE MA HAUTE CONSIDERA
TION.
SIGNE: MICHEL DEBRE
POUR COPIE CERTIFIEE CONFORME A L’ORIGINAL

PARIS JAN 24/69. FINCIT