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Date: 1979-02-05
By: Secretariat of the Conference
Citation: Federal-Provincial Conference of First Ministers on the Constitution, List of “Best Effort” Draft Proposals with Joint Government Input discussed by First Ministers, Doc 800-010/036 (Ottawa: 5-6 February 1979).
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DOUMENT: 800-010/036

FEDERAL-PROVINCIAL CONFERENCE
OF FIRST MINISTERS ON THE CONSTITUTION

List of “Best Effort” Draft Proposals
with joint government input
discussed by First Ministers

Ottawa
February 5-6, 1979

TABLE OF CONTENTS

Resource Ownership and Interprovincial Trade
and section 109 Alternatives …………………….PAGE 1
Indirect Taxation ………………………………PAGE 5
Supreme Court ………………………………….PAGE 6
Family Law …………………………………….PAGE 9
Equalization and Regional Development …………….PAGE 11
Spending Power …………………………………PAGE 12
Declaratory Power ………………………………PAGE 16

Draft Proposal Discussed by First Ministers

RESOURCE OWNERSHIP AND INTERPROVINCIAL TRADE

(1) (present Section 92)
(1) Carries forward existing
Section 92

Resources

(2) In each province, the
legislature may exclusively
make laws in relation to

a) exploration for non-
renewable natural
resources in the
province;

b) development, exploit-
ation, extraction,
conservation and
management of non-
renewable natural
resources in the
province, including
laws in relation to
the rate of primary
production therefrom;
and

c) development, exploit-
ation, conservation
and management of
forestry resources
in the province and
of sites and facilities
in the province for
the generation of
electrical energy,
including laws in
relation to the rate
of primary production
therefrom.

(2) The draft outlines exclusive
provincial legislative
jurisdiction over certain
natural resources and
electric energy within the
province. These resources
have been defined as non-
renewable (e.g. crude oil,
copper, iron and nickel),
forests and electric energy.
This section pertains to
legislative jurisdiction and
in no way impairs established
proprietary rights of provinc
over resources whether these
resources are renewable or
non-renewable.

Export from the province of resource

(3) In each province, the
legislature may make laws
in relation to the export
from the province of the
primary production from
non-renewable natural
resources and forestry
resources in the province
and the production from
facilities in the province
for the generation of
electrical energy, but
such laws may not authorize
or provide for prices for
production sold for export
to another part of Canada
that are different from
prices authorized or
provided for production
not sold for export from
the province.

(3) Provincial governments are
given concurrent legislative
authority to pass laws
governing the export of the
resources referred to above
from the province. This
legislative capacity is in
the sphere of both inter-
provincial and international
trade and commerce. Provin-
cial governments are prohibited
from price discrimination
between resources consumed
in the province and those
destined for consumption in
other provinces. This new
provincial legislative
capacity applies to these
resources in their raw state
and to them in their processed
state but does not apply to
materials manufactured from
them.

Relationship to certain laws of Parliament

(4) Any law enacted by the
legislature of a province
pursuant to the authority
conferred by subsection (3)
prevails over a law enacted
by Parliament in relation to
the regulation of trade and
commerce except to the
extent that the law so
enacted by Parliament,

a) in the case of a law in
relation to the regulation
of trade and commerce
within Canada, is necessary
to serve a compelling
national interest that is
not merely an aggregate
of local interests; or

b) is a law in relation to the
regulation of international
trade and commerce.

(4) The effect of this new pro-
vincial legislative responsi-
bility over trade and commerce
diminishes the scope but does
not eliminate the federal
government’s exclusive autho-
rity over trade and commerce.
The exercise of the provincial
power is subject to two limi-
tations. First, the federal
government may legislate for
interprovincial trade if there
is “compelling national
interest”. This trigger
mechanism may apply to circums-
tances other than an emergency
as established under the
peace, order and good govern-
ment power. Second, federal
laws governing international
trade prevail over provincial
laws in international trade,
in effect establishing a
concurrent power similar to
that for agriculture.

Taxation of resources

(5) In each province, the legis-
lature may make laws in
relation to the raising of
money by any mode or system
of taxation in respect of

a) non-renewable natural
resources and forestry
resources in the
province and the
primary production
therefrom; and

b) sites and facilities in
the province for the
generation of electrical
energy and the primary
production therefrom,

whether or not such production
is exported in whole or in
part from the province but
such laws may not authorize
or provide for taxation that
differentiates between
production exported to
another part of Canada and
production not exported
from the province.

(5) Provincial powers of taxation
are increased to include
indirect taxes over the
resources outlined in this
section — whether these
resources are destined in
part for export outside the
province. These taxes are
to apply with equal force
both in the province and
across the rest of the
country.

Production from resources

(6) For purposes of this section,

a) production from a non-
renewable resource is
primary production
therefrom if

i) it is in the form
in which it exists
upon its recovery
or severance from
its natural state,
or

ii) it is a product
resulting from
processing or
refining the
resource, and is
not a manufactured
product or a
product resulting
from refining crude
oil or refining a
synthetic equivalent
of crude oil; and

b) production from a forestry
resource is primary pro-
duction therefrom if it
consists of sawlogs, poles,
lumber, wood chips, sawdust
or any other primary wood
product, or wood pulp, and
is not a product manufact-
ured from wood.

(6) In determining the scope
of provincial legislative
powers over resources
exported from the province,
it became necessary to
define the degree to which
the resource was processed.
It is not intended to
extend provincial authority
to manufacturing but it is
intended to extend it to
something beyond its extract
ion from its natural state.
Given the varying resources
covered by this section,
the wording of this sub-
section is thought to place
the appropriate limitations
on provincial powers.

Existing Powers

(7) Nothing in subsections (2) to
(6) derogates from any powers
or rights that a legislature
or government of a province
had immediately before the
coming into force of those
subsections.

(7) This clause ensures that any
existing provincial
legislative powers found
in s. 92 are not impaired
by the new section.

Draft Proposal Discussed by First Ministers

LIST OF ALTERNATIVES COVERING THE
DISPOSITIONS OF SECTION 109

Option 1 Maintain the status quo, do not carrv
forward section 109.

Option 2 (a)

Property in
lands,
mines, etc.

*”123.1 All lands,
mines, minerals and
royalties belonging to any
province immediately before
this sect on comes into
effect, and all sums than
due or payable in respect
of any such lands, mines,
minerals and royalties,
belong immediately after
this section comes into
effect to the province
or are then due and payable,
subject to any trusts
existing in respect thereof
and to any interest other
than that of the province
therein.”

Option 2 (b)

Ownership
of property

*”123.1 All property
of property belonging to any province
immediately before this
section comes into effect,
belongs immediately after
this section comes into
effect to the province,
subject to any trusts
existing in respect
thereof and to any interest
other than that of the
province therein.”

Option 3

Ownership
of property

“127.1 Nothing in
of property this Act changes the
ownership in any property
owned by Canada or a
province immediately
before the coming into
force of this Act.”

*Note: Numbering is tied in to numbering found in
Bill C-60.

Draft Proposal Discussed by First Ministers

INDIRECT TAXATION

Taxation within the province by any mode or
system of taxation for provincial purposes, except indirect
taxation that a) constitutes a tax on the entry into or
export from the province or otherwise has effect as a
barrier or impediment on interprovincial or international
trade, or b) is so imposed that the burden of the tax is
passed outside the province.

Draft Proposal Discussed by First Ministers

SUPREME COURT

The Supreme Court of Canada

1. There shall be a general court of appeal for
Canada called the Supreme Court of Canada.

2. The Supreme Court of Canada shall consist of a
chief justice, to be called the Chief Justice of Canada,
and eight other judges, who shall be appointed by the
Governor General.

3 (1) A person is eligible to be appointed as a
judge of the supreme Court if, after having been
admitted to the bar of any province, the person has,
for a total period of at least ten years, been a
judge of any court in Canada or a barrister or
advocate at the bar of any province.

(2) At least three of the judges of the
Supreme Court shall be appointed from among persons who,
after having been admitted to the bar of Quebec, have,
for a total period of at least ten years, been judges
of any court of that province or of a court established
by Parliament or advocates at the bar of Qubec.

4. Where a vacancy in the Supreme Court
occurs, the Minister of Justice of Canada shall consult with
the Attorney General of the province or Attorneys General
of the provinces from which the persons being considered
for appointment come.

5. (1) The judges of the Supreme Court
hold office during good behaviour until they attain the
age of seventy years but are removable by the
Governor General on address of the Senate and
the House of Commons.

(2) The salaries, allowances and pensions of the
judges of the Supreme Court shall be fixed
and provided by Parliament.

6. The Supreme Court has exclusive ultimate
appellate civil and criminal jurisdiction within
and for Canada.

7. An appeal to the Supreme Court lies
with leave of the Supreme Court from any
judgment of the highest court of final resort in a
provine, or a judge thereof, in which judgment can be
had in the particular case sought to be appealed to the
Supreme Court, where, in the opinion of the Supreme
Court, any question involved is one that ought to be
decided by it.

8. An appeal to the Supreme Court
lies from an opinion pronounced by the highest court
in a province on any matter referred to it for hearing
and consideration by the Lieutenant Governor in
Council of that province.

9. In addition to any appeal provided for by this
division, an appeal to the Supreme court lies as
lay be provided by any Act of Parliament.

10. Parliament may make laws authorizing the
reference of questions of law or fact to the Court
and requiring the Court to hear and determine such
questions.

11. Where any case before the Supreme
Court It involves a question of law relating to the
civil law of Quebec and no other question
of law, that case shall be heard by a panel of five
judges at least three of whom have the qualifications
described in section 3 or, with the consent of the
parties, by a panel of four judges at least two of
when have those qualifications.

12. Parliament may make laws providing for
the organization, maintenance and operation of the
Supreme Court, and the effectual execution and working
of this division and the attainment of its intention
and objects including laws providing for the appointme
of such ad hoc judges as may be necessary to ensure
quorums.

Courts for Better Administration of Laws of Canada

13. Parliament may, notwithstanding anything in
the Constitution of Canada, from time to time provide
for the constitution, organization, maintenance and
operation of courts for the better administration
of the laws of Canada, but no law providing for the
constitution, organization, maintenance or operation
of any such court shall derogate from the jurisdiction
of the Supreme Court or Canada as a general court of
appeal for Canada.

Appointment and Tenure of Office
of Judges of Superior, District and County
Courts and their Salaries, Allowances and Pensions

14. The Governor General shall appoint
the judges of the superior, district and county courts
in each province, except those of the courts of probate
in Nova Scotia and New Brunswick.

15. Where a vacancy occurs in the superior,
district or county court of a province, the Minister of
Justice of Canada shall consult with the Attorney Genera
of the province an to persons being considered for
appointment.

16. The judges of the courts in each province
appointed by the Governor General shall be
selected from among members of the bar of the province
or from among judges who were members of the bar of
the province prior to their appointment as judges.

17. The judges of the superior courts of
the provinces hold office during good behaviour
until they attain the age of seventy years but are removable
by the Governor General on address of the Senate
and the House of Commons.

*18. The salaries, allowances and pensions of the
judges of the superior, district and county courts
in each province, except the cours of probate in Nova
Scotia and New Brunswick, shall be fixed and provided
by Parliament.

19. (1) For the purpose of enabling persons being
tried or giving evidence in any superior, district
or county court in a province to exercise any right they may
have by law to he tried or heard in English Or French according
to their choice, the Governor in Council may, notwithstanding
sections 16 and 17, at the request of the Attorney General
and appropriate chief justice of the superior court or
chief or senior judge of the district or country courts
of that province, appoint any persons who have been judges
of a superior, district or country court, of any other
province, or any persons who are judges of such a court
of any other province with the consent of the Attorney
General and appropriate chief justice or chief judge of
such province, to be deputy judges of any superior,
district or county court in the province on behalf of
which the request is made.

(2) A deputy judge may be appointed pursuant to
this section for any period of time during which period,
he or she shall perform such duties as are assigned by
the appropriate chief justice or chief judge, and his
or her appointment may be terminated at the pleasure of
the Governor in Council.

20. For the purposes of this Division, the term
“province” includes the Yukon Territory and the Northwest
Territories.

Draft Proposal Discussed by First Ministers

FAMILY LAW

1. Repeal head 26 of section 91 — “Marriage and divorce”.

2. Repeal head 12 of section 92 — “The solemnization of
marriage in the Province” and substitute therefore
“Marriage, including the validity of marriage in the
Province”.

3. Add after section 95 the following section:

95A(1) The Legislature of each Province may
make laws in relation to divorce in
the Province, except that Parliament
has exclusive authority to make laws
in relation to the recognition of
divorce decrees granted within or
outside Canada, and in relation to the
jurisdictional basis upon which a court
may entertain an application for divorce.

(2) The Parliament of Canada may make laws
in relation to divorce, except that
the Legislature of each Province has
exclusive authority to make laws in
relation to alimony, maintenance, custody
and any other relief corollary to divorce.

(3) Where the Legislature of a Province
enacts a law in respect of any of the
matters in which it has concurrent
authority with the Parliament of Canada
under this section, the Parliament of
Canada ceases to have authority in
respect of that Province in all
concurrent matters under this section
while any such law of the Legislature
continues in force.

4. Add to section 96 of the B.N.A. Act the following sub-
section:

“(2) Notwithstanding that the judges
are not appointed under subsection 1,
the legislature of a province may confer,
or authorize the Lieutenant Governor of
the province to confer, concurrently or
exclusively, upon any court or division
of a court or all or any judges of any
court, the judges of which are appointed
by the Lieutenant Governor of the province,
the jurisdiction of a judge of a superior
court of the province in any matters
arising out of family relationships,
including divorce, annulment of marriage,
decrees of validity or nullity of marriage,
separation, support, maintenance, adoption,
custody, access, affiliation, family
property, and rights and obligations among
members of a family recognized as such in
law”.

5. Add in the transitional provisions of the Act a
provision for the continuation of the application of
the Divorce Act (Canada) in respect of corollary relief
for a period sufficient to allow Provinces to put their
legislation in place.

Draft Proposal discussed by First Ministers

EQUALIZATION AND REGIONAL DEVELOPMENT

“96(1) Without altering the legislative
authority of Parliament or of the legislatures
or of the rights of any of them with respect
to the exercise of their legislative authority,
Parliament and the legislatures, together with
the Government of Canada and the Governments
of the Provinces, are committed to

(a) promoting equal opportunities
for the well-being of Canadians;
(b) furthering economic development to
reduce disparity in opportunities
for social and economic well-being;
and,
(c) providing essential public services
of reasonable quality to all
Canadians.

(2) Parliament and the Government of Canada
are further committed to the principle of making
equalization payments to provinces that are
unable to provide essential public services of
reasonable quality without imposing an undue
burden of taxation, or to the principle of
making arrangements equivalent to equalization
payments to meet the commitment specified in
Section 96(1)(c).”

(3) The Prime Minister of Canada and the
First Ministers of the Provinces shall review
together the questions of equalization and
regional development at lease once every five
years at a meeting convened pursuant to section
97.

Draft Proposal Discussed by First Ministers

Spending Power

Legislative Text
Renumber section 91 of the B.N.A. Act
as subsection 91(1) and add the following

Alternative (2) A

(2) The Parliament of Canada may make
laws for the expenditure of money, or
for conferring a benefit equivalent to
that which would result from the expend-
iture of money, in relation to any
matter not coming within the legislative
jurisdiction of Parliament, and not
within the concurrent legislative
jurisdiction of Parliament and the
legislatures where a law of Parliament
has paramountcy, subject to such of the
following conditions and restrictions
as are applicable in any particular
case.

Alternative (2) B

(2) The Parliament of Canada may make
laws for the expenditure of money, or
for conferring a benefit equivalent to
that which would result from the expend-
iture of money, subject to such of the
following conditions and restrictions
as are applicable in any particular
case.

Legislative Text

(3) A law of Parliament referred to
in subsection (2) that provides for
payments to all provinces, or for
conferring a benefit capable of pro-
viding an equivalent to that which
would result from payments to them,
and that is such that the payments
are or the benefit is conditional on
expenditures by the provinces or the
foregoing of revenue by them, is
of no force or effect unless authorized
by the governments of a majority of
the provinces that have, according to
the then latest general census, at
least 50% of the population of Canada.

Alternative (4)A

(4) A law of Parliament referred to
in subsection (3), notwithstanding
that it is authorized as provided in
that subsection, is of no force or
effect unless it provides for payments
Or benefits to individuals residing in
a province that does not accept payments
or benefits thereunder that are in amounts
determined by or pursuant to a provision
of such law.

Alternative (4)B

(4) A law of Parliament referred to in
subsection (3), notwithstanding that it
is authorized as provided in that sub-
section, is of no force or effect unless
it provides for payments to a province

Legislative Text

that does not accept payments or benefits
in accordance with the general provisions
of the law that are equivalent in amount
to the payments or benefits that would
otherwise have been provided to it under
the law.

(5) Subsections (3) and (4) apply whether
or not the payments provided or the bene-
fits conferred are provided or conferred
on terms or conditions that may vary as
between provinces.

(6) A law of Parliament referred to
in subsection (2) that provides for
payments to individuals or bodies,
other than provincial governments,
in all provinces and that signifi-
cantly affects the programs of a
province is of no force or effect
unless, prior to the enactment thereof,
the government of Canada has consulted
with the government of each province
whose programs would be so affected.

(7) Where the government of Canada is
of the opinion that a measure providing
for payments as described in subsection
(6) that it proposes to introduce for
enactment by Parliament will affect
the programs of a province, it shall
consult with the government of that
province before introducing the measure.

Legislative Text

(8) A law referred to in subsection
(6) shall be deemed not to have the
effect therein referred to unless,
prior to the enactment of the law,
the government of a province has, in
writing, advised the government of
Canada that, ix its opinion, the law
will have such an effect.

(9) Where the government of a pro-
vince has advised the government of
Canada as provided in subsection (8)
in relation to a particular measure,
a copy of the instrument reflecting
such advice shall forthwith be laid
before Parliament and thereupon no
further consideration shall be given
to the measure in Parliament for a
period of ninety days or such lesser
number of days as is agreed to by
the government of the province,
during which period the government
of Canada shall consult with the
government of the province in
relation to the measure at a
meeting convened for that purpose
or in such other manner as is
agreed upon.

DECLARATORY POWER

1. Amend head 92. 10(c) to read as follows:
“(c) Such works as, although wholly
situate within the province, are before
or after their execution-declared by
Parliament.to be for the general advantage
of Canadabor for the advantage of two or
more provinces, for purposes indicated in
the declaration.”

2. Add new subsections to section 92 which for the
purposes of this draft are numbered as follows:

“92.(2) Before Parliament declares any work
to be for the general advantage of Canada or for
the advantage of two or more provinces

(a) the government of Canada shall consult
with the government of the province or
the governments of each of the provinces in
which the work is situate; and
(b) if the consultation under paragraph (a)
does not result in an agreement that the work
be so declared, the Prime Minister of Canada shall
consult the first ministers of the provinces
about the proposed declaration at a first
ministers’ conference.

(3) Where, after the consultation required by
subsection (2), an agreement has not been reached
that a work be declared to be for the general
advantage of Canada or for the advantage of two or more
provinces, a declaration under paragraph 92(1)10(c) shall have
effect only for such period not exceeding five years from
the effective date of the declaraticn as is stated in
the declaration but nothing in this subsection
prohibits Parliament from making a further declaration
in respect of the work after the requirements of
subsection (2) have again been fulfilled.

(4) No declaration under paragraph 92(1)10(c)
shall be made by Parliament without the prior
consent of the government of the province in which the work
to be so declared is situate if it is a work for

(a) the primary production or initial
processing of any non renewable or forestry
resource; or

(b) the generation of electrical energy.

(5) Parliament may revoke any declaration of a
work to be a work for the general advantage of
Canada or for the advantage of two or more provinces
made before or after the coming into force of this
section and may limit or, subject to subsections (2) to
(4), extend the purposes for which any such declaration
had been made.”