Document Information

Date: 1978-10-30
By: Pierre Trudeau
Citation: Federal-Provincial Conference of First Ministers, Text of the Letter of Prime Minister Trudeau, September 13, 1978, in Reply to Letter from Premier Blakeney of August 22 which Conveyed the Conclusions Reached at the Premiers Conference Held in Regina on August 9-10, Doc 800-8/026 (Ottawa: 30 October-1 November 1978).
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DOCUMENT 800-8/026

FEDERAL-PROVINCIAL CONFERENCE
OF
FIRST MINISTERS

Text of the Letter of Prime Minister Trudeau,
September 13, 1978, in Reply to Letter from Premier Blakeney
of August 22 which Conveyed the Conclusions
Reached at the Premiers Conference
Held in Regina on August 9-10

Federal

Ottawa
October 30-November 1, 1978

PRIME MINISTER
PREMIER MINISTRE

Ottawa, K1A 0A2
September 13, 1978

My dear Premier:

Thank you for your letter of August 22
with which you sent me the four communiqués issued
at the Premiers Conference held in Regina on
August 9 and 10.

With much of what is in the communiqués
my colleagues and I, in the federal government,
are in full agreement. Indeed I regret the extent
to which the form of presentation and other factors
have led to an impression of disagreement and con-
frontation that has tended to ignore the degree to
which there is agreement in important areas.

As you mention, the federal government
agrees fully with the view expressed in the first
communiqué that it is important to take early action
on the problem of duplication of government services.
It was for that reason that we proposed in our White
Paper, “A Time for Action”, that this matter should
be taken in hand as an important priority. We pro-
posed, as you know, that a meeting on the subject

The Honourable Allan Blakeney, Q.C.
Premier of Saskatchewan
Legislative Building
Regina,Saskatchewan
S4S 0B3

… 2

-2-

be held in mid-July but the provinces did not feel
ready to proceed at that time. In the light of
the position taken at the Premiers Conference,
Mr. Lalonde and your Deputy Premier, Mr. Romanow,
have been in touch with a view to arranging a
meeting of the Ministers concerned during the
latter part of September to discuss this question
and, generally, to prepare for our forthcoming
Conference on the Constitution. I share the
hope of the Premiers that some early progress
may be possible.

In respect of constitutional reform,
dealt with in the second communiqué, again there
are substantial areas of agreement between the
position of the Premiers, as stated in the commu-
niqué of August 10, and that of the federal
government. My colleagues and I welcome the
endorsement of the need for constitutional change.
We have noted also that many topics mentioned in
the communiqué have already been included in the
proposals that the federal government put before
Parliament on June 20. On the eleven subjects
listed in the communiqué from the 1976 consensus
of the Premiers, six are included in one form or
another in the federal proposals. Three others
relate to the distribution of powers and, as I
indicated in my letter of July 7, the federal
government would be ready to begin discussion
of that fundamental matter at the conference
proposed for this autumn. The remaining two
items relate to taxation and the spending power.
The federal government had already indicated in
publications as long ago as 1969 its readiness
to consider ways in which these matters can be
tackled.

. . .3

-3-

Of the six “Other Areas of Consensus”
to which the communique refers, two are already
covered by the June 20 federal proposals: the
abolition of the powers of reservation and
disallowance, and provincial involvement in
appointments to the Supreme Court. The rest
relate for the most part to the distribution
of powers and would be covered in our discus-
sions of that area of constitutional change.

We agree too that the “Other Subjects” to which
the communique refers require “early consider~
ation”.

Both your letter and the communiqué
refer to the federal proposals in respect of the
Crown and the Governor General. There has here
been a serious misunderstanding of the nature of
the proposals, a misunderstanding that the Premiers
appear to share. As my colleague, the Minister of
State for Federel-Provincial Relations, made clear
in his statement to the Joint Parliamentary Commit-
tee on the Constitution on August 15, the purpose
of the federal government is to make clear that
the Queen remains the “sovereign head” of Canada
and to have that position embedded formally in
our Constitution. All that the proposals do with
respect to the Monarch and the Governor General
is to state the present reality as it is, taking
into account the developments in our constitutional
practice since 1867. It is the view of the federal
government that, in any revised Constitution, such
a statement of the present constitutional reality
is desirable and it does not appear to me to he at
variance with the views of the Premiers as expressed
in your letter or in the second communiqué. It may
well be that changes in the drafting of specific
provisions could better reflect this intention
and make more certain the desired result. We would,
of course, welcome suggestions for such drafting
changes.

. . .4

-4-

The principles you enunciate in your
letter include the belief that “institutional
and jurisdictional problems interact in such a
way that they must be considered together”.
Here too I think agreement in substance may
be obscured by questions of method. Use of
the terms “Phase I” and “Phase II” with respect
to the federal proposals for the constitutional
exercise may have given an impression of sequence
in discussion and in consideration that was not
our intention. The two “phases” were seen as a
sequence in their respective target dates for the
implementation of action but not, necessarily,
for discussion and consideration. You will recall
that I suggested that an item on the distribution
of powers should be included in the agenda for
the initial constitutional conference. There is
no necessity for the “jurisdictional problems” to
be considered apart from “institutional” areas:
discussion of the two can begin and can proceed
simultanecusly. We think,however, that action
that can constitutionally be taken in Canada, by
Parliament acting within its own powers, should
be taken. It should not have to wait upon other
revisions that may require more time to consider
and that can only be completed by the British
Parliament. The federal government does not,
any more than the Premiers, want an “unrealistic”
for “rigid” time-table. It does, however, feel
that some effective start should be made on
constitutional change at the earliest possible
moment and in any event, before the electors
of Quebec are called upon by their provincial
government to choose between political independ-
ence on the one hand, and on the other, the
preservation of a status quo which federal and
provincial governments have proved incapable of
changing despite 51 years of effort.

. . . 5

-5-

Referring again to the six principles
in your letter, the federal government agrees
fully that “proposals from all sources” must be
given careful consideration. It agrees too that
it is desirable to achieve the largest possible
measure of agreement with the governments of the
provinces. What we have done over the last months
bears this out. It was in earnest of the govern-
ment’s commitment to hold discussion and to seek
agreement that I outlined the plan for constitu-
tional action to you and to all other Premiers
when I met separately with each of you in the
months preceding the Federal-Provincial Confer-
ence last February. It was for the same purpose
that federal Ministers and officials visited eight
Premiers and the designated Ministers in the other
two provinces in June to confirm this commitment
and to outline the government’s proposals in more
detail. After the proposals were made public on
June 20, I proposed dates for the Constitutional
Conference, on which we had agreed in principle
last February, and suggested that Mr. Lalonde meet
with his opposite numbers in the provinces to
prepare such a conference. A Joint Committee
of Parliament was established for full public
discussion and the government published a number
of documents on important aspects of the proposals
as a basis for effective discussion with provincial
governments and all the interested parties during
the process of constitutional renewal. (Need I
mention that many interested parties – including
the Ontario Advisory Committee on Confederation,
the Progressive-Conservative Party, the Canadian
Bar Association, Canada West and so on w have been
publishing their constitutional proposals and it
would have been passing strange if the Government
of Canada had been precluded from publishing its
own proposals.)

. . . 6

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In short, we have done everything we
could to make clear that we want a full exchange
of views with the provinces and as much agreement
as can be achieved. The question is not whether
agreement is desirable: it is. The question is
whether, if the complete agreement of all provinces
cannot be achieved, nothing whatever can be done –
as nothing has been done in eight previous efforts
to achieve major and far-reaching agreements on
constitutional change, undertaken by six Prime
Ministers of Canada, starting in 1927. The federal
government believes that a continuation indefinitely
of that total incapacity to act is not something
that can or should be accepted as the inevitable
result of a possible failure to get the agreement
of each and every government. And that is why,
on the elements of change that fall within the
exclusive jurisdiction of Parliament under Section
91(1) of the B.N.A. Act, we felt impelled to set
a deadline of one year.

Section 91(1) of the British North
America Act empowers the Parliament of Canada
to amend our Constitution in areas of federal
concern just as Section 92(1) empowers each pro-
vincial Legislature to amend the Constitution in
areas of provincial concern. There are, as you
know, five clearly stated exceptions to the
jurisdiction of Parliament under Section 91(1).
The proposals we published on June 20 set forth
areas of action that, in the opinion of the
gederal government and its legal advisers, are
within the powers of Parliament. The fourth
“principle” in your letter expresses “doubt”
that the “federal government has the legal authority
to act alone”. The “authority” is, of course, a
matter of constitutional law and resides in the
Parliament of Canada, not in the government. With

. . .7

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regard to its extent, I am enclosing herewith
a copy of a statement made in the Joint Parlia-
mentary Committee on the Constitution by the
Minister of Justice on August 31.

While there may be debate about the
precise extent of the power of Parliament under
Section 91(1), there can be no doubt that it
exists and that it is extensive. Neither the
“principles” in your letter nor the communique
of August 10 appear to distinguish between
constitutional changes that are within the
jurisdiction of Parliament under Section 91(1)
and those that are not. The provincial govern-
ments have, legitimately, shown a sensitivity
about “intrusions” by the federal government
into areas of their jurisdiction. I think many
of the claims of intrusion are debatable. However,
if there have been federal intrusions into areas
of provincial jurisdiction, there hes been none,

I think, that is as direct and as sweeping as the
provincial intrusion into federal jurisdiction
that appears to be involved in the second Regina
communique. In substance, if we understand it
rightly, it declares that federal jurisdiction
under Section 91(1) must not even be exercised,
if it be “significant” or “important”, except
with the permission of the provincial governments.
As I have said, the communique does not qualify
that position as being in respect of matters that
could, possibly, be considered to be outside the
powers of Parliament under Section 91(1). The
ccmmuniqué states that t ere should be no change
that is “significant” or “important”, no matter
now clear the jurisdiction of Parliament may be,
without the approval of ten provincial governments.
We agree that provincial jurisdiction should be
respected. The federal government feels that the
jurisdiction of Parliament also must be respected.

. . .8

-8-

However, the goal of the federal
government is not confrontation; it is the
attainment of the greatest possible measure
of agreement, with the provinces and among
the people of Canada, for those important
changes in our Constitution that seem essen-
tial to the renewal of our Federation. But
in the last analysis, Parliament itself must
decide whether the national interest requires
it to exercise the powers it possesses. And,
the federal government does not accept the
proposition that the power of Parliament under
Section 91(1) can only be exercised with the
iapproval of each provincial government.

Since the Minister of Justice made
his statement on August 31, the Joint Parlia-
mentary Committee has passed a motion to the
effectt that there should be a reference to the
Supreme Court of Canada with regard to the
jurisdiction of Parliament under Section 91(1)
respecting the Senate and the Crown. There
would be no purpose to be served in any refer-
ence with regard to the Crown since, as I have
indicated, the intention of the government is
to make no change in substance in that regard.
It is simply a matter of finding the best words
to carry out this intent. So far as the Senate
is concerned, while the government and its
advisers have no doubt as to the capacity of
Parliament to legislate to the effect that is
involved in Bill C-60, it seems undesirable to
allow allegation of uncertainty in this regard
to continue to impede concentration on the
substance of the question of a second Chamber
in a revised Constitution. We are also conscious
of the doubt the Premiers expressed in this regard
in the Regina communiqué. My colleagues and I
have accordingly decided to make a reference to

. . .9

-9-

the Supreme Court to clarify Parliament’s juris-
diction to make changes affecting the Senate or
to legislate for its replacement by a different.
second Chamber. Making the reference does not,
of course, mean any lessening in the desire that
I have expressed to see constitutional change
effected with the full agreement of the provinces.
Indeed, the reference should in no way preclude
our exchanging views, in the meantime, on the
best role and structure for the Upper Chamber
of Parliament in a renewed Federation. Our
making the reference is simply a matter of
wishing to have certainty about the capacity
of Parliament to act if, after full discussion
with the provinces, it is found that the only
way in which action can be achieved is by Par-
liament taking its own responsibilities, within
its constitutional powers, in what it considers
the national interest to require.

with regard to the economy; dealt with
in the third communique, there appears to be
substantial agreement among all governments.
The federal government shares the desire of the
Premiers to continue the course that was started
in the early months of 1978 and in the conference
of last February to achieve national co-operation
on economic strategy. Our meeting of First
Ministers this autumn will permit us to continue
that co-operation. I think it would undoubtedly
be desirable to consider then whether meetings on
the economy in November of each year should be
made a regular feature. As you knew, the federal
proposals on the Constitution include the prov-
sion that was agreed on at Victoria in l97l which
would make it a constitutional requirement to have
at least one meeting of federal and provincial
First Ministers in each year.

. . .10

-10-

The federal government welcomes the
expressed approval of the Premiers for “a fiscal
position of continuing restraint”. The actions
of the federal government in recent weeks, in
which it has announced major reductions in exist-
ing and planned expenditures, are ample indication
that it shares the Premiers’ view in that respect.
In the the re-ordering of priorities that has occurred
through these reductions, we have had in mind the
Premiers’ concern, which we share fully, for a
reduction in the problem of duplication of ser-
vices.

The federal government shares the sense
of urgency about problems relating to the economy
that is expressed in the third communiqué. It
will be putting before Parliament, when it meets,
a number of measures relating to the economy. It
would clearly be most desirable to have the views
of the provinces on many matters in order that
action can be on the basis of as much agreement
and co-operation as possible. At our Conference
on the Economy last February, we agreed to hold
a Conference on the Constitution in September
and a future Conference on the Economy in November.
While it did not prove possible to hold the Consti-
tutional Conference in Septemberm and while we have
now agreed to hold it on October 30-31 and November 1,
I believe we should make every effort to carry out
our original purpose and hold the Conference on
the Economy before the end of November. I would
be pleased if you would let me know if this would
be acceptable to you. In sending copies of this
letter to your fellow Premiers, I shall raise the
same question with them. In the meantime, i am
asking the officers of the Federal-Provincial
Relations Office to get in touch with their oppo-
site numbers in the provinces to explore possible
dates.

. . .11

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Perhaps I can refer very briefly to
the fourth communique on inter-provincial trucking.
Once again, it appears to reflect substantial
areas of agreement with the federal government.
The views set forth are similar to those that
have been expressed by my colleague, the Minister
of Transport, to the Canadian Conference of Motor
Transport Administrators in September, 1977, and
on other occasions.

Sincerely,