Federal-Provincial Conference of First Ministers, Constitutional Reform: The Position of the Provinces (30 October-1 November 1978)
By: Secretariat of the Conference
Citation: Federal-Provincial Conference of First Ministers, Constitutional Reform: The Position of the Provinces, Doc 800-8/020 (Ottawa: 30 October-1 November 1978).
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Constitutional Reform: The Position of the Provinces
Communiqué No. 2 of the Meeting
of Premiers held in Regina
on August 9-11, 1978
October 30-November 1, 1978
I. THE PROCESS OF CONSTITUTIONAL REFORM
For many years, provincial governments have shown
concern over constitutional issues and have participated
actively in a large number of conferences and discussions.
As a result of provincial initiatives and leadership, a
great deal of useful progress has been made in identifying
problems requiring constitutional action, and achieving a
greater understanding of their implications.
Premiers agreed that the division of powers is the key
ssue in constitutional reform, and should be addressed in
conjunction with other matters.
1. The Importance of Constitutional Discussions
The provinces endorse the need for constitutional reform,
to provide the basis for all Canadians to achieve a
greater measure of economic and social well being and
cultural fulfillment, and to establish more harmonious
relations among governments.
2.First Ministers’ Conference on the Constitution
The provincial governments therefore look forward to the
forthcoming First Ministers’ Conference on the
Constitution now scheduled for the end of October.
They believe that the Conference should be open.
They believe, further, that the agenda must accommodate
all proposals, and should be drawn up jointly by the
federal government and the provinces.
The Premiers accordingly have instructed Ministers
responsible for the Constitution to continue preparatory
work, and to invite the federal Minister of State for
Federal-Provincial Relations to meet with them.
In the View of the Premiers, important proposals from all
sources must be given careful and thorough consideration
in the constitutional review process. Some of these
proposals are: ‘
– the consensus reached by the ten provincial Premiers in
– proposals made, or under preparation, by or for
federal or provincial governments, such as the
report expected from the Task Force on Canadian
Unity, co-chaired by Hon. Jean-Luc Pepin and Hon.
– the federal government’s Constitutional Amendment
4. The Importance of Agreement
The Premiers firmly believe that significant constitutional
reform should have the concurrence of all governments,
recognizing the equality of status of all provinces in the
It is doubtful whether the federal government has the
legal authority to proceed unilaterally with proposed
changes to the Senate and the role of the monarchy. In any
event, it would clearly be wrong for them to undertake
unilateral action in those or other important areas
without provincial support.
Constitutional reform must be part of a process that will
improve the well-being of all citizens and strengthen
5. A Comprehensive Approach
It was agreed that discussions on constitutional reform
cannot be compartmentalized into artificial divisions.
Insfitutional and jurisdictional problems interact in such
a way that they must be considered together.
The Premiers agreed that problems involving the
distribution of power between the federal government and
the provinces have been a major source of friction and
have a negative impact on the daily lives of all
Canadians. These problems demand equal attention.
6. A Realistic Timeframe
A comprehensive review is unlikely to be successful if
arbitrary deadlines are imposed. A fixed and rigid
timetable is unrealistic and does nothing to contribute to
the harmony and goodwill necessary to complete a process
of constitutional review.
II. THE SUBSTANCE OF CONSTITUTIONAL REFORM
1. The Consensus Reached by Premiers in 1976
Provinces agreed to advance, again, the 1976 consensus,
which has not received an adequate response from the
federal government. That consensus constitutes a useful
starting point for discussions with the federal government
in crucial areas involving the distribution of powers, and
represents a positive contribution toward the resolution
of significant problems.
Quebec said that, while committed to its option of
sovereignty-association, it could generally go along with
the 1976 consensus and most of the other constitutional
points raised in Regina. Quebec went on to state that
this approach falls within the mandate of the Quebec
government to reinforce provincial rights, within the
present system, and also illustrates some of the minimal
changes required to make the federal system a serious
alternative in the forthcoming Quebec referendum.
The 1976 consensus covered a number of areas of concern:
– language rights
– resource taxation
– the federal declaratory power
– annual Conference of First Ministers
– creation of new provinces
– Supreme Court of Canada
– the federal spending power
– regional disparities and equalization.
2. Other Areas of Consensus
In addition, the Premiers, in the course of their discussion
in Regina, have reached agreement on a number of additional
substantive matters, on which federal views are invited:
– abolition of the now obsolete federal
powers to reserve or disallow provincial
– a clear limitation on the federal power to implement
treaties, so that it cannot be used to invade areas
of provincial jurisdiction
– the establishment of an appropriate provincial
jurisdiction with respect to fisheries.
– confirmation and strengthening of provincial powers
with respect to natural resources
– full and formal consultation with the provinces
in appointments to the Superior, District and
County Courts of the provinces
– appropriate provincial involvement in appointments to
the Supreme Court of Canada.
3. Other Subjects
Further, there was a consensus that a number of additional
matters require early consideration
– the federal emergency power
– formal access of the provinces to the field of
– the federal residual power
– amending formula and patriation
– the delegation of legislative powers between
4. Elements of the Constitutional Amendment Bill
With regard to the federal Constitutional Amendment
Bill, Premiers expressed a number of substantive concerns, in
addition to the points noted previously.
Provinces agree that the system of democratic parliamentary
government requires an ultimate authority to ensure its
iresponsible nature and to safeguard against abuses of power.
That ultimate power must not be an instrument of the federal
Cabinet. The Premiers, therefore, oppose constitutional changes
that substitute for the Queen as ultimate authority, a
Governor General whose appointment and dismissal would be
solely at the pleasure of the federal Cabinet.
The provinces regard the House of the Federation, as
proposed, as unworkable.
Some provinces support the principle of constitutional
entrenchment of basic rights while others believe that,
under our parliamentary system, individual rights are better
protected by basic constitutional traditions and the
ordinary legislative process.
Provinces are concerned over section 8 of the federal Bill
and its potential interference with important provincial
legislation respecting land ownership and other matters.
Some Premiers noted that the proposed language guarantees
go substantially beyond earlier proposals, and feel that prac~
tical difficulties may be encountered in their provinces,
particularly in respect of provincial government services and
All Premiers expressed grave concern that section 109 of
the B.N.A. Act, concerning provincial ownership of natural
resources, has not been carried forward into the proposed
Premiers are concerned that section 32 of the
Constitutional Amendment Bill is an attempt by the federal
Jgovernment to acquire from the provinces jurisdiction over
offshore territories and resources.
Premiers feel that, if there is to be a preamble, it
should be short, clear, and precise. A statement of aims, if
any, would best be included in the preamble.
Premiers stressed that all these issues, and others, will
require careful and detailed discussion with the federal