Document Information

Date: 1980-10-21
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1980 at 3884-3917.
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COMMONS DEBATES October 21, 1980

GOVERNMENT ORDERS
[English]

THE CONSTITUTION

ESTABLISHMENT OF A SPECIAL JOINT COMMITTEE OF THE
SENATE AND THE HOUSE OF COMMONS

The House resumed from Monday, October 20, consider-
ation of the motion of the Minister of Justice and Minister of
State for Social Development (Mr. Chrétien):

That a Special Joint Committee of the Senate and of the House of Commons
be appointed to consider and report upon the document entitled “Proposed
Resolution for a Joint Address to Her Majesty the Queen respecting the
Constitution of Canada” published by the government on October 2, 1980, and
to recommend in their report whether or not such an address, with such
amendments as the committee considers necessary, should be presented by both
Houses of Parliament to Her Majesty the Queen;

That 15 members of the House of Commons to be designated no later than
three sitting days after the adoption of this motion be members on the part of
this House of the Special Joint Committee;

That the committee have power to appoint from among its members such
subcommittees as may be deemed advisable and necessary and to delegate to
such subcommittees all or any of their powers except the power to report directly
to the House;

That the committee have power to sit during sittings and adjournments of the
House of Commons;

That the committee have power to send for persons. papers and records, and to
examine witnesses and to print such papers and evidence from day to day as may
be ordered by the committee;

That the committee submit their report not later than December 9, 1980;

That the quorum of the committee be 12 members, whenever a vote, resolu-
tion or other decision is taken, so long as both Houses are represented and that
the joint chairmen be authorized to hold meetings, to receive evidence and
authorize the printing thereof, when six members are present so long as both
Houses are represented; and

That a message be sent to the Senate requesting that House to unite with this
House for the above purpose. and to select, if the Senate deems it to be
advisable, members to act on the proposed Special Joint Committee.

Mr. George Henderson (Parliamentary Secretary to Minis-
ter of Fisheries and Oceans): Madam Speaker, I have listened
intently and with a very open mind and heart to the speeches
made by hon. members on both sides of the House in reference
to the resolution pertaining to the constitution, and I believe
there is no question that most hon. members attempted to
speak with sincerity. We are all aware that constitutional
proposals of historic importance are involved.

I must say that on a number of occasions I have been
somewhat disturbed by the personal attacks launched by some
members of this chamber. We find ourselves engaged in a
debate over the constitution of our country, a debate which, in
the final analysis, overflows from these chambers and touches
the hearts and souls of each and every Canadian. It is my
contention that there is no place for personal attacks and
attempts to make political hay in this historic debate.

Hon. members of the House must understand that, above all
else, we must be cognizant of the fact that our performance in
this House determines to a very large degree the level of
respectability afforded this House of Commons. I personally
have no intention of launching a personal attack on any
member of the House concerning remarks already made in the
debate, although there are some points of view upon which I
would like to comment. Instead, I would like to speak on this
resolution with simplicity and sincerity. As members of this
Thirty-second Parliament we have the opportunity now to
accomplish what other Parliaments had been unable to accom-
plish for the last 53 years. Parliament has the opportunity of
bringing our constitution home, and after 113 years we will
finally have a constitution which is completely our own.

When we were in the embryonic stages as a nation the
Fathers of Confederation could have freely decided to sever
the ties with Britain, but instead they unanimously chose to
bring the resolutions into effect by an act of the British
parliament. Now we have grown from that embryonic stage,
we are a mature adult nation, and what may have been
appropriate in I867 is no longer appropriate in 1980.

The constitution of 1867 no longer meets the needs and
aspirations of Canadians because many of our needs and
aspirations have changed. It therefore must be rethought,
remodelled, and rewritten to reflect these changes. And it must
be done in Canada by Canadians. The constitution of 1867
contains a number of good points that can be modernized and
complemented with new elements and incorporated into a truly
Canadian document tailored to meet the needs of all Canadi-
ans. It is now the time to patriate the constitution, provide for
an amending formula, and to entrcnch a Canadian charter of
rights and freedoms and the principle of equalization in that
constitution.

I would like to speak very briefly on the Canadian charter of
rights and freedoms. At one time it was believed that these
rights and freedoms could be adequately protected simply by
the ordinary process of parliamentary democracy. But it has
been increasingly recognized that more protection is required.
The international community has expressed this need through
such instruments as the Universal Declaration of Human
Rights in 1948 and the International Covenant on Civil and
Political Rights and on Economic, Social and Cultural Rights
in 1966. The Canadian government, after consultation with
the provinces, joined many other nations in subscribing to
these international commitments, which were commitments to
foster and protect the basic rights of people.

In Canada there has also been a growing recognition that
legislatures should provide more positive protection for basic
human rights. In 1960 Parliament adopted the Canadian Bill
of Rights. Saskatchewan, Alberta and Quebec have provincial
bills of rights. In addition there are federal and provincial laws
which prohibit discriminatory practices in a broad range of
social and economic activities. While these various statutes
afford some measure of protection, it is by its very nature
limited and sometimes inconsistent. For instance, the legisla-
ture which passed a law yesterday could decide to repeal or
restrict it tomorrow. An individual’s only immediate redress
would be to try to convince the same government which had
restricted the rights to reinstate them. In a country as large
and diverse as Canada, with its two official languages and
many cultural and ethnic groups, basic rights and freedoms
require more protection than this.

Rights, by their very nature, pertain to individuals and
minorities and their protection should not be left simply to the
good will of the majority or of the government of the day.
Those rights must be guaranteed in the constitution so as to
protect them from change by any single government, parlia-
ment or legislature. I believe cntrenchment in the constitution
is the only way of ensuring Canadians their basic rights and
freedoms for all time.

I would like to single out just one of the basic rights and
freedoms which concerns mc greatly as a Canadian and a
member of this Parliament. I refer to the right of mobility, the
right to work and live in my part of this great country. We
have heard overtures from at least one provincial premier in
the last short while to enact provincial legislation which would
prohibit Canadians from working in his province. I submit this
is the kind of legislation which is extremely dangerous to every
Canadian. I bring this point up because I may be the only
member of the House of Commons who has had an opportu-
nity to work in every province in this great country.

I know what it is like to hitchhike from coast to coast. I
know what it is like to pawn my watch in Edmonton in order
to buy breakfast. I know what it is like to sleep in a culvert in
northern New Brunswick in November. I know what it is like
to drive railway spikes for the northern Alberta railway. So I
have some general idea of Canada. And I know what it is like,
as a Prince Edward Islander, to work in Toronto and shuffle
my way onto tramcars at 7.30 in the morning to make my way
to an assembly line. But, if I had my life to live over again, I
would want to do the same thing because that was how I came
to know Canada, and that is why I love Canada and the people
of all ethnic backgrounds who make up this great country.
That is why we should not allow provincial barriers in any part
of this country.

When I travel back to my constituency at the weekends and
return to Ottawa on Monday, hardly a week goes by without
my meeting on the plane five or six young Prince Edward
Islanders who are on their way to Calgary or Toronto seeking
jobs, a plane ticket in their pocket and a few dollars. That is
quite an experience. I can relate to it because I went through
that myself 26 years ago. The only thing different was that I
did not have the money for the plane ticket—I used my thumb
to get me across this great country. I do not believe we in this
Parliament can deny young people from all corners of this
great country that privilege and that opportunity if they so
desire.

I believe the third main objective of this resolution is to
entrench the principle of equalization into the constitution. It
is an absolute necessity for the very survival of my province,
the province of Prince Edward Island. I was looking over the
speech made yesterday by the hon. member for Hillsborough
(Mr. McMillan) and he quite correctly pointed out what the
federal government means to Prince Edward Island. He point-
ed out that of the $505 million expenditures in 1978 $426
million was in the form of transfer payments or other pay-
ments from Ottawa. That is why it is very essential to my
province that equalization be written into the new constitution.

When the Fathers of Confederation convened in Charlotte-
town in 1864, Prince Edward Island was in a very favourable
economic position—a “have” area, if you will. I am quite sad
to say that since confederation the fair isle of Prince Edward
Island has eroded, not only has the sea eroded our beaches but
there has also been economic erosion over the last 113 years.
Without guaranteed equalization payments, a sharing of the
almost limitless wealth of this great country, Prince Edward
Island, along with other provinces, would find itself in very
difficult circumstances.

A feeling of concern and willingness to share is nothing new
to Canadians. The desire to share and help others less well
blessed than ourselves has always been an ingredient to be
admired in the over-all character of Canadians. But there are
many millions of people in underdeveloped countries around
the world who would readily admit that their lot is a better one
because of Canada’s willingness to share. It is that willingness
to share in this country which draws us closer together as
Canadians.

I believe it is absolutely essential to settlc the question of the
amending formula. The provinces and the federal government
will be involved in studying all constitutional revisions or
changes which will affect all Canadians. But the prospect of
gaining unanimity on an amending formula is very dim. This
being the case, and I believe that hon. members would agree,
in order for my province of Prince Edward Island to be
afforded meaningful input, I will be suggesting an amendment
to section 42 to the committee. I hope that the Premier of
Prince Edward Island will join forces with me in submitting
that amendment and, indeed, that the two hon. members for
the ridings of Malpeque (Mr. Gass) and Hillsborough in P.E.I.
will join with us.

I believe that it is necessary to have an amendment because
the population of the Atlantic provinces as of July, 1980, if my
figures are correct, was 2,265,600 people. Prince Edward
Island comprises only 124,000 of this total, or 5.4 per cent of
the population of the Atlantic region. Therefore it would be
impossible for Prince Edward Island in concert with any other
singular province of the Atlantic region to be representative of
50 per cent of the population of that region.

My suggested amendment would be that at least two of the
Atlantic provinces be in agreement with no reference made to
specific percentages of the population of the Atlantic region.
The hon. member for Hillsborough brought up this point
yesterday, but I was surprised that he did not suggest an
alternative, and I am very surprised that the Premier of Prince
Edward Island, Mr. MacLean, whom I admire and who sat in
these chambers for many years, did not approach the situation
in a little different light.

The hon. member for Hillsborough mentioned that this
government was taking the matter on in a partisan fashion. I
do not believe that. He also went on to say that he believed
that this government could learn a lesson from history, in
particular from the Fathers of Confederation who, over a
century ago, set aside their often bitter partisanship for a
greater cause which was the union of the British North
American colonies. He went on to say that at the Charlotte-
town conference the P.E.I, delegation was comprised of three
government members and two opposition members. I would
suggest to the premier of the province that rather than take the
matter to the courts, perhaps he could learn that same lesson
from history. Perhaps, instead of going back to his ten col-
leagues and making the decision that they would go to the
courts, the premier could do something which is more repre-
sentative of the people.

If the premier were interested in what the hon. member for
Hillsborough suggested should be our interest, then he should.
have used another alternative. The premier could have called
the House of Assembly in Prince Edward Island into session to
obtain the views of the opposition. Or, indeed, in a province as
small as Prince Edward Island, he could have called an
election—and I think that it would have been welcomed—to
let the people decide. But he has not done that. The premier
has not even called a byelection in my old riding of Second
Prince. Perhaps this would have given him an indication as to
how the people of Prince Edward Island feel about this
amendment to the constitution.

These are a number of points which I wanted to bring up
because I believe that there are all kinds of room to make
specific points in this debate. I do not believe that this govern-
ment or, indeed, this Parliament, is out to shaft any one area
or province of this country. I believe that every one oi us
sitting here today loves our country too much to do such a
thing.

Although Prince Edward Island is small geographically and
is limited in population, it is the very cradle of confederation
and it must be afforded equal opportunity in determining its
destiny and, indeed, the destiny of its nation. I believe that the
over-all majority of Canadians are desirous of constitutional
renewal. Without an amending formula this desired constitu-
tional renewal will be impossible. As I say, I have listened to
the speeches of most of the hon. members, and they all seem to
bring out one point, that we need to bring our constitution
home, we agree with patriation, and that we should not have to
go to a foreign country, even though it is the mother country,
to have our constitution amended.

However, I fail to see what good it would do to bring the
constitution back to Canada if we did not have an amending
formula, That formula, in my opinion, would have to be dealt
with in the British Parliament, If we brought the constitution
back without such a formula it would be totally useless
because we would be left in a strait-jacket. lf we were unable
to reach agreement in the last 53 years, I see little prospect in
the next 53 years.

When I consider some of the items which I have brought up,
particularly with regard to mobility and the things which are
taking place in this country through the actions of the prov-
inces, I believe it is imperative that we get on with the job and
bring the constitution home. If this great country of ours
called Canada is to prosper from sea to sea, I humbly submit
that the Thirt second Parliament should act with all dispatch
to accomplish what all members of Parliament before us have
been unable to accomplish. I say, bring the constitution home.

Mr. Epp: Mr. Speaker, would the parliamentary secretary,
in view of the statements that he just made, accept a question
at this time?

Mr. Henderson: Yes.

Mr. Epp: Thank you, Mr. Speaker. In view of the fact that
the parliamentary secretary is the sole government member of
Parliament from Prince Edward Island, and in view of the fact
that he mentioned that he was planning to propose an amend-
ment to the amending formula as it would affect his province,
has he discussed that amending formula either with the Minis-
ter of Justice (Mr. Chrétien) or the Prime Minister (Mr.
Trudeau), or both, and has he received from them approval for
that amendment?

Mr. Henderson: Mr. Speaker, I have not discussed such an
amendment with the Prime Minister. What I said is that I
would be presenting an amendment to the parliamentary
committee. I asked, and I challenge once again, the Premier of
Prince Edward Island and the two hon. members from the
island, in the House to join with me so that our province will
have that meaningful role within confederation.

Mr. Epp: Mr. Speaker, l have a short supplementary. How
does the parliamentary secretary plan to proceed with that
action if, as parliamentary secretary having taken an oath he
speaks at the present time in terms of government policy, and
he has not received that approval earlier?

Mr. Henderson: Mr. Speaker, I am not aware that I am a
member of cabinet.

Mr. Hnatyshyn: Hope springs eternal.

Mr. Henderson: Perhaps the hon. member across the floor
knows something which I do not know. I must say, though,
that it is within my privilege as a member of Parliament
representing at least one quarter of the people of Prince
Edward lsland—

Mr. McGrath: Not as a parliamentary secretary.

Mr. Henderson: —to make such an amendment.

Mr. Peter Ittinuar (Nunatsiaq): Mr. Speaker, I must say
that it is always a little lonely for me to stand up in this place,
although I am with colleagues whom I believe to be most
sensitive to native issues in this House.

I am also not a little disappointed on entering this debate on
the constitution because in the resolution that proposes four
classifications of province I find that, as a territorial resident, I
am left completely out of the picture, both in the pre-patria-
tion and post-patriation stages.

I am also reminded somewhat of the Beothuks of New-
foundland—I do not mean this as a reflection on present day
Newfoundland—who died off in a rather disdained manner. I
think this resolution might be the trigger that shoots off a
more contemptuous bullet.

Let me state this premise before I make further comments
about what we believe—

Mr. Deputy Speaker: The hon. member for St. John’s East
(Mr. McGrath) on a point of order.

Mr. McGrath: Mr. Speaker, I rise on a question of privilege,
because I have already participated in the debate and hence l
have no alternative but to interrupt the hon. member. He is
historically inaccurate and I am sure he does not mean to
deliberately cast a slur on the province of Newfoundland-

Mr. Deputy Speaker: Order, please. The hon. member is
failing to outline privilege in the sense that I have accepted it.
I think the hon. member for Nunatsiaq (Mr. Ittinuar) should
be permitted to continue his speech and then the hon. member
for St. John’s East may respond.

Mr. McGrath: Mr. Speaker—

Mr. Deputy Speaker: The hon. member for St. John’s East,
but I caution him that questions of privilege should be
legitimate.

Mr. McGrath: Mr. Speaker, on a point of order, you did not
even hear me. Consequently I will not delay the hon. member
any longer but will reserve the right to get up at the end of his
speech.

Mr. Ittinuar: Thank you, Mr. Speaker. This is the usual
case, I believe. I stated an historical fact and said that I did
not mean it as a reflection on the province of Newfoundland
nor on its residents. I have the utmost respect for the current
issues on which they fight because some of those are analogous
to ours in the north. Maybe the hon. member for St. John’s
East will accept my apology.

Mr. Benjamin: You do not owe him any.

Mr. Ittinuar: As I said, I draw that as an analogy to this
resolution because I believe it may be the trigger that fires the
final bullet for us as a people I believe that.

Let me state this premise before I start—that the resolution
on the constitution now before the House ignores native people
and their rightful place in Canadian society.

Mr. Nielsen: It ignores the north.

Mr. Ittinuar: The hon. member for Yukon (Mr. Nielsen)
interjects saying the north as well, and I shall come to that in a
few moments. It perpetuates the view that they are inconse-
quential in a larger national context. I am as proud as anyone
else in this House and I appreciate as fully the fact that I am
Canadian but I must attempt to impress upon members that
native people are not romantic relics from the past, to be
forgotten and ignored in the process of creating a new Canada.
We have been involved in the building of Canada from its
infancy and long before that.

A few moments ago the hon. member for the Yukon said the
resolution ignores the north. In the near future the north will
be contributing to the economy of Canada through its resource
development and yet, as the Prime Minister (Mr. Trudeau)
said to me last year, the Northwest Territories has no standing
whatsoever in making the Constitution of Canada. I am sure
the hon. member for Yukon would echo those sentiments.

Mr. Nielsen: Echoed.

Mr. Ittinuar: As far as we are concerned, Inuit are not a
conquered people nor have they ever been. In most cases native
people accepted immigrants from Europe and assisted them in
exploring this country and adjusting to its harsh and unknown
environment. That may not be the case so much in the south as
it is in the north. I could tell stories about explorers and their
sentiments about discovering the north. They were inclined to
say, “This Eskimo guided me and I discovered this island.” So
much for that.

In the early years of the European presence in Canada,
aboriginal rights were recognized as valid, even though they
were not always respected. In the royal proclamation of 1763
the King of England forbade settlement on Indian lands and
declared that Indian lands could only be obtained by the
Crown through treaties. Native people formed alliances and
entered into treaties with Europeans, and even fought beside
them in defending Canada in the revolutionary war and the
war of 1812. I dare say that native people were also involved in
World War II. Unfortunately, by the time of the drafting of
the British North America Act, native people were already
being taken for granted by those in power. Again, l do not
mean any reflection on the Fathers of Confederation. Section
91(24) of the act proves that they were taken for granted,
however.

In section 91(24) of the British North America Act native
people, or, as we are called, aboriginals, were reduced to the
status of an administrative problem. We are still regarded in
this way to some extent today. Thus, the federal government
was granted jurisdiction over Indians and lands reserved for
Indians. The BNA Act did not impose any constitutional
obligation upon the federal government to pass any legislation
at all concerning native people. Nevertheless, the government
passed the Indian Act which does not confer any legal rights or
special status upon the native people. It is simply a statute for
the administration of Indian affairs. That is the case today.

I want to emphasize this point since I believe it is often
misunderstood, even by those who are well-intentioned toward
the administration of Indian affairs. The Indian Act provides
no constitutional guarantee of aboriginal rights and there is
nothing in the BNA Act which recognizes, let alone protects,
aboriginal rights. The BNA Act gives Parliament paramount-
cy, and an act of Parliament could extinguish aboriginal rights
at any time. At the moment I do not believe that Parliament
has paramountcy over this resolution because it is being rail-
roaded through this House by the party opposite. That is
unfortunate. Hon. members opposite would have a far bigger
and greater victory if they would listen to people on this side of
the House.

Some hon. Members: Hear, hear!

Mr. Ittinuar: I believe the Indian Act is a somewhat pater-
nalistic statute in that it gives the federal government trustee-
ship over Indians and Indian lands. No special legislation has
been enacted, and therefore no special legislation exists. It is
interesting that some two or three decades ago the federal
government moved Inuit—or Eskimos as some people refer to
us—from the province of Quebec and parts of the territories to
places like Grise Fiord and Resolute Bay in order to declare its
sovereignty over those Arctic islands. We declared sovereignty
for Canada, but there has never been a mutual respect of that
sovereignty as we are not allowed to participate in any consul-
tation on constitutional amendments.

An hon. Member: Shame!

Mr. Ittinuar: That is something that the government should
amend. No matter how well intentioned, the government trus-
teeship has failed dismally and has led to a continuation of
poverty, disease, and unemployment in many native communi-
ties.

I would challenge anyone in this House to go to places
where I know there is disease, where I know there is unem-
ployment, where I know there is poverty, where I know there
are inequalities that are not present in any other part of
Canada. I would challenge any member to come to those
places with me, and I hope some members will take up that
challenge. There are reserves in the ridings of some hon.
members in which there are unequal opportunities for native
people. I hope that these hon. members will take the time to
state such cases, as I have done.

No one is happy with the present situation of the native
population in Canada. The native people in particular want to
see changes and believe that recognition of their aboriginal
rights would begin a new era of optimism and building for a
secure future within confederation

Why do I emphasize aboriginal rights, Mr. Speaker? One of
the most crucial factors in preserving cultures, as everyone in
this country is well aware, is language. I wish with all my
heart and soul that I could make this speech in my own
language. Since we are not allowed to do so, I will continue in
the only other language that I know.

While everyone else is talking about preserving minority
language rights, I want to remind members that in my constit-
uency of Nunatsiaq the language rights of the majority are not
protected. In the proposed resolution there is no protection of
Inuit rights to speak Inuktitut and no guarantee of their right
to educate their children in their native tongue. This is further
complicated by the fact there is not enough control over
broadcasting in northern communities. The native language
rights in the area of health, social services, and criminal justice
are also missing from the pages of the proposed document,
education being particularly important since it is the crucial
element in the preservation of native culture.

Preservation of native lifestyles depend upon their source of
livelihood and a sane development policy regarding renewable
resources. Unlimited mobility rights would seriously threaten a
process of careful and controlled development. Furthermore,
native people must be fully involved in the resource develop-
ment process on their lands, including access to revenue shar-
ing as a means of establishing a stable economic base. In this
case the territories are passed by.

Every party in this House has, at one time or another, called
for the recognition of aboriginal rights. As recently as last July
the Liberal party passed a resolution to:

Work toward the entrenchirig of original and native people’s rights by:

(a) enacting legislation with the consent of the original and native peoples,
that clearly provides for Canada’s obligations by virtuc of aboriginal and
treaty rights,
(b) implementing a modern settlement policy that provides for orderly
developments by enhancing. not extinguishing aboriginal, treaty and native
people’s rights and,
(c) include the original and native peoplc’s representatives at all levels of
constitutional reform.

These people have not carried out any of the commitments
of their party. These are all laudable sentiments. I am sure we
in the House would express them at one time or another with
varying degrees of truth. We on this side certainly express
them with truth. We have not seen anything from the other
side yet to confirm that.

Sorne hon. Members: Hear, hear!

Mr. Ittinuar: If there is anything to be achieved, now is the
time for members to act on their principles and good will.
On Friday before last the Prime Minister said that he would
be willing to put the question of native rights on the agenda for
discussions toward further constitutional change, after patria-
tion. Last June the Prime Minister agreed to bring up the
matter of representation of native people and territorial gov-
ernments in constitutional talks with the provincial premiers.
In July the Minister of Indian Affairs and Northern De-
velopment (Mr. Munro) told an all-chiefs’ conference of the
Manitoba Indian Brotherhood that native people across
Canada may be invited to appear before the continuing com-
mittee of ministers to give their views on patriation and the
constitution. Statements of good intent have so far lasted as
long as one of our summers in the far north. We are looking
for constitutional guarantees which are perennial as the per-
mafrost in Grise Fiord, which I believe will last longer than
this country.

The aim of the charter of rights and freedoms is to give
individuals and minorities recourse to the courts if these rights
and freedoms are violated. This I do not argue with. However,
the proposed constitutional resolution omits any reference to
the collective rights of aboriginal peoples. Canada’s native
peoples have a unique and historic relationship with the federal
government, based on their aboriginal rights as the original
inhabitants of Canada. Section 24 of the constitutional resolu-
tion provides that existing rights and freedoms of native people
will not be affected by the rights and freedoms in the charter. I
wonder what kind of guarantee this is when native people have
been exerting considerable time and effort on the task of
changing and improving the status quo. Are we now to be
content with the same unsatisfactory status quo?

Section 24 protects native rights. There are no rights at
present for native people. I wish to read the section and then
re-read it in a manner which, had it been written that way,
might have meant something to the native people. I quote
section 24 of the resolution:

The guarantee in this charter of certain rights and freedoms shall not be
construed as denying the existence of any other rights or freedoms that exist in
Canada, including any rights or freedoms that pertain to the native peoples of
Canada.

What does that mean? I dare anyone on that side to
interpret that for me so that it gives me a feeling of security.
Had it been written in a manner such as this, it would have
some meaning.

The guarantee in this charter of certain rights and freedoms shall not be
construed as denying the existence of any other rights or freedoms that exist in
Canada, including the aboriginal rights and freedoms that pertain to the native
people of Canada and which ensure their distinct cultural, economic and
linguistic identities.

That would have had some meaning for us.

The situation is further complicated by the fact that an
explicit charter of individual rights and freedoms may be used
in the courts to argue against the collective rights of native
people. A constitution which does not include a clear reference
to the aboriginal rights of native people may, in fact, lead to an
erosion of existing rights and freedoms.

I do not suggest that the government is conspiring to erode
the few existing rights which we have. Northerners sometimes
fear that the government is plotting to assimilate us into the
existing southern model. Again, I do not believe that there is a
plot. It should be noted, however, that such things sometimes
occur as the indirect result of actions which may have been
well intended. For example, the Baker Lake court case estab-
lished that aboriginal rights can be extinguished by Parlia-
ment, even as a side effect of another law. However, in the
Baker Lake court case, the judge was a previous Liberal
cabinet minister of industry, and the Department of Indian
Affairs and Northern Development had a Liberal cabinet
minister at that time. The outcome was pretty predictable.

Native people and northerners do not constitute a majority
of Canada’s population. We all understand that. That is the
basis for the argument which the Prime Minister often gives
the native people. They argue that we are a mere municipality.
The territories have not been included in any constitutional
debate of any meaning because their population constitutes
hardly more than a municipality in the southern section of
Canada.

Those are not all the factors that are involved. We are
under-represented in positions of power and influence and,
consequently, decisions are sometimes made that affect us, but
of which the consequences were not fully considered. I do not
expect other members of this House to think like native people
or northerners, sometimes not even my hon. friend from
Yukon. I do ask them, however, to listen to what native leaders
across Canada, and the elected representatives of territorial
governments, are saying. The homecoming of the Canadian
Constitution will be an historic event. It could turn out to be
an historic disaster for native Canadians and northerners. The
omission of any reference to aboriginal and treaty rights of
native Canadians may not be a sinister attempt to wipe out
special status and assimilate us into an American melting pot
version of Canadian society. However, the results may lead to
the same thing.

I urge all members of this House to insist that patriation not
take place until adequate provisions have been made for native
participation in the constitutional revision process. As I said at
the beginning of my remarks, I am more than a little despond-
ent about this wish.

This spring the Inuit Committee on National Issues, the
National Indian Brotherhood and Native Council of Canada
were given funds to conduct research into constitutional issues
and present the results of this research to the government. The
government is now proposing to patriatc a constitution which
does not provide mechanisms for receiving native input and
which does not even attempt to cover many well-known posi-
tions which these organizations have articulated.

Furthermore, the amending formula leaves us little hope
that changes beneficial to native people will have any chance
of being included after patriation. Perhaps the money which
these organizations received was intended to buy time for a
government which has no intention of seriously addressing the
legitimate concerns of native people with regard to the consti-
tution. No timetable has been set to discuss native participa-
tion, and no formal procedure is in place for receiving submis-
sions from the Inuit Committee On National Issues and the
other native organizations.

I think this government should make its intentions clear
with regard to native participation in constitutional renewal
and that these intentions should be communicated to the Inuit
Committee on National Issues, the Native Council of Canada
and the National Indian Brotherhood, at the earliest possible
date because we are rapidly running out of time.

The constitutional resolution as it is written falls short of
recognizing the aboriginal rights of native people and offering
guarantees which would preserve and enhance native cultures,
of which I have spoken. The urgency of having these rights
guaranteed in the constitution is enhanced by the fact that the
amending formula offers us little hope of having changes made
after patriation. Until part V of the resolution comes into
force, the unanimous consent of the provinces is required
before an amendment can be made. No one here today would
argue that unanimous consent is an easily attainable goal. Part
V comes into force when the consent of a majority of provinces
is required. This is at least two years down the road and it still
does not provide native people with any real assurances.

Instead of negotiating directly with the federal government,
efforts will be dispersed to include lobbying for provincial
support as well. The prospects of successfully amending the
constitution to include a direct reference to aboriginal rights,
as well as other guarantees which native people feel are
essential, are greatly diminished after patriation takes place.

A couple of weeks ago the Inuit Tapirisat of Canada had
their annual general assembly, during which they formed a
resolution concerning the constitution of Canada. This resolu-
tion predictably had to do with making a submission and
representation to the Government of Canada about what the
Inuit of northern Canada believe should be included in the
constitution. I have not yet seen any mechanisms for receiving
those submissions or representations, and there is not likely to
be. As I said, I am fairly despondent about the constitutional
debate as far as the native perspective and as far as the Inuit
of northern Canada are concerned. Although we have a word
in our language for the constitution “piquyaryuak”, I do not
believe there is any chance that the Inuit of Canada will ever
be given the opportunity to make amendments to benefit them
in the context of the nation Canada.

Mr. Nielsen: Mr. Speaker, I rise on a point of order. Ijust
want to suggest to the hon. member for Nunatsiaq (Mr.
Ittinuar) that he provide Hansard with the Salabik spelling of
the Inuit word for the constitution so that it will appear on our
records for the first time.

[Translation]

Hon. Jean-Luc Pepin (Minister of Transport): Mr. Speak-
er, I would like to deal with three aspects of the resolution now
under consideration. First, I note the great number of views
expressed by experts, members of Parliament, other people and
the public at large on the elements of the constitutional reform
generally and more especially on this resolution. I conclude
that I and others have to take a relativistic attitude devoid of
doctrinairism and absolutism.

In addition, since it is unfortunately impossible to conclude
an early constitutional agreement at the federal and provincial
levels, it is unavoidable, in my view, that Parliament has to
take limited action at the request of government. Moreover,
such a unilateral measure is adequately warranted from a
philosophical, legal, conventional and political point of view.
Finally, Mr. Speaker, the contents of this resolution do not
disturb the present balance of powers between the two levels of
government in Canada and consequently it is acceptable and
can be approved.

I will conclude my remarks by wishing, of course, that the
present resolution be adopted after having been polished in
committee in the sense Boileau gave to this word and that the
effort of constitutional reform be maintained beginning by the
search for an amending formula agreed to by the two levels of
governments, which is precisely what this resolution calls for.

Mr. Speaker, last weekend I read most of the speeches made
in this House since October 6 by my hon. colleagues. All of
them were made by learned, passionate and obviously sincere
persons. Yet what a wide range of opinions! For some Progres-
sive Conservative members, if adopted this resolution would
signal the end of Canadian federalism and that of Canada
itself. On the other hand, the same text meets the expectations
of many other members and their electors, so they think. Some
among the first group, namely, those who oppose the resolu-
tion, still approve part of its content thereby often contradict-
ing the arguments they use to reject the other part, the
acceptable elements being different from one member to the
other. Some would like to add to it, others would rather delete
from it according to their own preferences and the degree of
public consensus they believe exists. Certainly there is a lesson
in that for us to learn. As it should, politics plays a major role
in this debate, and I will come back to that later.

Mr. Speaker, I have witnessed in the past the phenomenon
of diversified opinions. It was in 1978 and 1979 when, as a
member of the Task Force on Canadian Unity, I had the
opportunity to hear personally the views of hundreds of
Canadians from all walks of life and from all regions of
Canada as well as of dozens of experts, all very knowledgeable,
including several federal and provincial politicians of yester-
day, of today as well as of tomorrow. Most of their contribu-
tions have been gathered in the third report of the task force
entitled “A Time to Speak,” a document which anybody
seeking the absolute in politics should read, but which those
who do not wish to change orientation should keep away from.

It was then to be expected, Mr. Speaker, that it might be
impossible to accommodate all these various and indeed con-
tradictory positions, and that some day or other, if we were to
get out of the strait-jacket, the constitutional garment would
have to be pulled somewhat at the seams! After the fascinating
if overwhelming experience of the Task Force on Canadian
Unity, I went to see other federations at work, the Federal
Republic of Germany, Switzerland and Yugoslavia. I even had
an opportunity, Mr. Speaker, to discuss in Sarajevo the dan-
gers of balkanizationl Once more, I was looking at the diversi-
ty of federal concepts and their practical implementations.
May I add that during ten years of my life, as a student and
later a professor, I met the finest brains of federal political
thought, and during ten years also as a member of Parliament
and minister of the Crown, I strived to translate into actions
the spirit of federalism, in practical situations such as that
referred to by the hon. member for Sarnia, (Mr. Cullen),
namely, regional sharing in the development of the petro-
chemical industry. What did I learn from all that? First, that
there is no doubt a spirit of federalism made up of balance and
tolerance, but that the means to express that spirit may vary
quite significantly from one country to the other, one period to
the other, one government to the other, one member of Parlia-
ment to the other and one citizen to the other, without
anyone’s good will being in doubt.

In other words, I learned there is no single and perfect
model of the federal state, one that could be imitated by all.
All there is is more or less successful variations on famous
themes, namely, the two orders of government, the formal
distribution of powers, one adjudicator or a number of them if
the referendum is to be accepted, institutions promoting inter-
action, and so on. The principle is understood by all, but there
is no single formula to success. As it was in the beginning, as it
is now and as it shall not be for centuries and centuries, such is
the phrase that could be applied to our Canadian federalism.

[English]
I have learned also that if each one of us individual Canadi-
ans, members of Parliament and of legislatures, and heads and
members of executives, stand unbending on all our first and
favourite choices, nothing will happen. The constitution will
not adapt to change, and we might very well die as a country,
each of us with his or her constitutional boots on. As Mae
West used to say, “Something’s got to give”.

So, we must compromise, obviously. This has often been
said. Such an attitude was probably the best accomplishment
of the Task Force on Canadian Unity when eight of us,
commissioners, so different in so many ways, agreed on a
single set of recommendations. We agreed on something
worth while which was generally acceptable, or not unaccept-
able, to each one of us individually. We never had the preten-
ston of writing a political bible. We hoped only that others
would follow the example we tried to set.

Compromise, said the late Hon. Guy Favreau, is “the
meeting point between the thoughts of two intelligent beings.”
As John Kennedy wrote in “Profiles in Courage”:

Compromise is not mean cowardice. Indeed it is frequently the compromisers
and conctlmtors who are faced with the severest tests of political courage as they
oppose the extremist views.

The content of the resolution before us is a compromise
between those who wanted more and those who wanted less
and those who wanted both more and less. It may not fully
satisfy every one of us—or any one of us for that matter—but
it should be accepted, in my view, by the greatest number of
people as a first step.

I have learned throughout the years that to compromise
with others, one must first compromise with himself. I cannot
ask others to give if I remain ungiving in my own first choices
of meansgtoward an end which I share with others. So, I am
compromising, as I should.

[Translation]
Is the kind of unilateral action stemming from this resolu-
tion justified? Like everybody here—l am sure—from the
Prime Minister (Mr. Trudeau) to the hon. member for Hamil-
ton West (Mr. Hudecki) who was recently elected to the
House, I would have wished that government heads would
have come to an agreement on four, six, twelve, twenty reform
issues before patriation. Unfortunately that satisfaction has
been denied to us.

History will doubtless seek to determine who was respon-
sible for the failure of those negotiations, of those which have
been going on for so long since 1969, of those which lasted
throughout the summer of 1980. Due to the complexity of
events, history will fail. I suggest history will consider the list
of proposals that the premiers made on that September Friday
and will maybe rule that they had worked out marvellous
compromises among themselves by adding their first respective
choice and disregarding the position of the central government.
This is a well-known fact. Be that as it may, two facts remain,
the first being that we failed to agree. I deplore the fact we did
not, I am sorry we did not, it grieves me that we did not, I
could cry about it!

We did not agree, Mr. Speaker, that is one fact. The other is
that we do not seem, to my mind, to be about to agree either.
So things being what they are, can and must Parliament
sanction the present resolution? I ask myself a first question;
does that resolution reflect the spirit of Canadian federalism?
At first glance, surely for some it does not because it imposes
its will upon the constituting governments. But, Mr. Speaker,
and I must insist on that point, there is not only one conception
of federalism in Canada. Professor Mallory, for instance, after
having observed that federalism in Canada—

—is different things to different people—

—writes that Canada has known five forms of federalism since
1867: the quasi-federalism of its early days, the more classical
federalism which followed, the federalism of emergency of the
war, the co-operative federalism which followed the war, and
the mixed federalism of dualism, which he calls the double
image federalism of today. And he adds: those forms overlap.
Professor Edwin Black, in “Divided Loyalties,” speaks of the
five concepts of federalism in Canada: the ccntralist federal-
ism, the administrative federalism, the co-ordinated federal-
ism, the contract theory federalism, and the dualist federalism.
He concludes:
[English]

A combination of the concepts is required to characterize Canadian confed-
eration at this time. The federation is chiefly co-ordinate in its political essen-
tials, largely collaborative at the senior levels of the public bureaucracies, and
tending to adopt linguistic cultural aspects of the dualist concept, Traces of the
compact theory were represented in the constitutional amendment movement,
but little evidence was to bc found of the centralist concept in any influential
circles.

[Translation]

There, to my mind, is an important idea. Before passing
judgment on events and men, as in the case, for instance, of
the resolution before the House, one must perforce realize that
the concept each one of us has of federalism need not neces-
sarily be that of all the others. And, as a consequence, I feel
one must try to reconcile his own interpretation with that of
the others.

Mr. Speaker, I suggest that it can still more simply be
classified into two schools of thoughts, namely federalism of
juridical equality between the two levels of government, to
which the Task Force on Canadian Unity generally adhered,
and a federalism of juridical seniority of the central govern-
ment, which this resolution moderately reflects to a certain
extent since it claims to be founded on present, previous,
former and past agreements with the provinces. This second
school of thought, which I call federalism ofjuridical seniority,
emphasizes, because of its wider, more ultimate and final
responsibilities, that the federal government has obligations to
Canada as a whole which it alone can meet, in the interest of
the common good, especially in cases where there exist appar-
ent deadlocks such as the one we are faced with now on the
constitutional issue. That is a highly defensible position which
I can appreciate for what it is worth, that is to say, a lot. By
the way, people would be wrong to think that the rule of
unanimity is an essential corollary of federalism of juridical
equality. As a matter of fact, several supporters will accept
that it may be limited by the will of the majority or for the
sake of political expediency.

In any event, I for one refuse to become the prisoner of
either one of these two schools, though psychologically I prefer
the first one. It seems to me that there are circumstances when
the second school is right and this happens to be one of them.
Second question: is the unilateral action on the part of the
government, on the part of Parliament under this resolution
acceptable under constitutional law and convention? Nothing
in law prevents the Parliament of Canada from adopting the
present resolution, nothing prevents the British parliament
from giving its assent. Yet is it the case when it comes to
convention? First what do we mean by convention? It is a
government practice which does not carry the weight of law,
which cannot be referred to in a court of law, but which
politicians consider as politically necessary and mandatory. I
think it is actually based upon the assent of public opinion. the
ultimate recourse in this area. ln “The Law and the Constitu-
tion”, Jennings says, and I quote:

[English]
Conventions keep the constitution in touch with the growth of ideas.

[Translation]
And that is very important, I might add, not only—

[English]
—in touch with the growth of ideas but also, one might add,
with the growth of sentiments.

[Translation]
Mr. Speaker, such a convention is an instrument of govern-
ment which has great flexibility but which is also very impre-
cise. The convention, in Canada, as far as constitutional
amendment is concerned, is that the British parliament must
accept a resolution put to it by the Canadian Parliament
asking for an amendment to the Canadian Constitution. Even
a legal expert like Brossard states that:

In theory, nothing prevents it from amending the BNA Act by itself or even at
the request ofa province, but the British parliament feels bound by constitution-
al conventions. It considers itself merely a recording mechanism.

That is convention. Therefore, the problem is not there, at
least I hope so. The problem is here in Canada. So we must
ask ourselves: what does convention say as far as the provinces’
power to amend is concerned? Can Parliament seek to amend
the constitution without the consent of the provinces, especial-
ly in matters which affect the division of power, especially in
the matters reserved in the 1949 amendment which concerned
in part the division of power, the right to education and the
institutional use of languages?

But, Mr. Speaker, this is a question I have been considering
for quite a while and I have noted that opinions vary, and
convention is unspecified and it is well known that in only five
out of l8 cases provincial consent was deemed necessary. Even
those who believe that such convention exists express their
views differently and always very cautiously. For instance, in
the dictionary of the Task Force on Canadian Unity, volume 2,
we can read the following, and I quote:

Legally speaking, Parliament is not absolutely forced to obtain the prior
consent of the provinces. However it did so when in its view the provinces were
directly concerned.

Then any dissertation on the state of convention in Canada
should insist on sentences such as “according to the judgment
of federal authorities”, “directly affects the power of the
provinces”. Some people will certainly state that such conven-
tion does not make unanimous consent compulsory. This is
where the uncertainty of convention lies in this matter.

Mr. Speaker, there is something much more important,
namely, the very nature of convention as it is being discussed.
Brossard states the following. I chose my authors carefully to
avoid being accused of partisanship. Brossard states the follow-
ing: “The federal Parliament could even, if it dared do so,
amend some constitutional conventions.” You see the impreci-
sion surrounding convention. And in a key part of his book
Jennings states the following:

[English]

—the real question which is presented to a government is not whether a rule is
law or convention, but what the House of Commons will think about it if a
certain action is proposed.

[Translation]

Of course, it amounts to stating very clearly and forcefully
the supremacy of policies over “what is conventional and over
law itself”. And Jennings states further:

[English]

Conventions are political decisions. Political antecedents and political consc-
quences prescribe their creation, existence and dissolution.

[Translation]

So, Mr. Speaker, we can see that in the end political
circumstances are what justifies unilateral action and conven-
tion itself. It is therefore a political problem. That is where the
problem lies; I repeat that however important philosophy, laws
and convention may be, what is at issue is practical politics,
the art of governing which is the art of doing what is possible
and also the obligation to choose according to a conception of
the common good. At this point I refer to what was said by my
colleagues who spoke about political necessity, particularly the
Minister of Justice and Minister of State for Social Develop-
ment (Mr. Chrétien) who has made some very important
statements on that subject. They said that the federal Parlia-
ment must act for all kinds of reasons; efforts have been made
over a long period of time to get the consent of the provinces
without success; the party that now forms the government has
been defending the ideas contained in the resolution for years
and its leader, for 12 years at least; on the other hand, some
provincial leaders agree with some parts and even the form of
the present resolution; some who were in agreement in the
past, some who reject it do so for reasons that have absolutely
nothing to do with the amendments asked for, and finally some
others would like to give their consent but dare not do so.
Other points have been argued since October 6, promises were
made, there was soon to be action, a breakthrough, a way out
of the deadlock. Commitments were made that must be ful-
filled at the reasonable moment. The benefits have been stated.
The Minister of Justice and Minister of State for Social
Development says that patriation and the amending formula
will allow what l call an “à la carte” amending process where
revision in large blocks has proved to be impossible.

Besides, the other means of breaking the deadlock that have
been referred to in the House do not really exist.

For instance, it is very obvious that calling a constituent
assembly now would not solve the problems facing Canada.
We would spend an enormous amount of time just in deter-
mining the rules that would then regulate the procms, to
establish who would be represented where and on what basis,
how decisions would be made, how the vote would be taken.
We should then have a lot of problems to solve. It has also
been suggested that resolutions be passed in all provinces and
in Parliament. The proposals were to be identical. Obviously, it
would take decades to be done. On the other hand, it is quite
obvious that there is a sufficient consensus among the popula-
tion on the content of that legislation. As co-chairman of the
Task Force on Canadian Unity I had the Hon. John Robarts
who was constantly raising this issue and asking us how could
anyone reach finality.

[English]

“How to reach finality in this matter.”

[Translation]

Well, I see—at least in the press—that Mr. Robarts has also
decided to support the government action on that issue. Indeed
the Minister of Justice and Minister of State for Social
Development has quoted the Leader of the Official Opposition
(Mr. Clark) himself who in other circumstances has propound-
ed views similar to those we are expressing today.

Mr. Speaker, will this resolution change the balance of
power between the two levels of government? Does it diminish
the powers of the provinces for the benefit of the central
government and, if so, does it do it unacceptably, without their
expressed or implied consent? Let us consider the situation
more in detail. Does patriation in itself upset the balance of
power between the two levels of government? l think that the
protection of provinces by London has long since been a myth
used by some provinces as a simple bargaining lever. And who
is still opposed to patriation? Not too many people as far as I
know. Some people, including myself, regret that it should
come about this way. Others would have preferred, and so
would l, that certain important and meaningful amendments
be made either before the constitution was patriated or at the
same time. But everyone agrees about this. Others suggest, at
least according to what l have read, that patriation should
occur after a review of all the components of the Constitution.
This is obviously unrealistic since we would already have to
review some elements which had already been reviewed before
the patriation formula was developed. It is obviously
unrealistic.

Third, is the formal amendment procedure proposed in this
resolution acceptable? Mr. Speaker, l would have to spend
several minutes on this subject to dissect what the resolution
contains in this regard. Moreover, I have the impression when
l look at the Minister of Justice (Mr. Chrétien) that the last
word has not been said on this matter and that there will be
further exchanges. I hope for my part that we shall be able in
the next two years to develop a formula which can be accepted
by the central government and the provinces, which will be
respectful of both orders of government and which will not
include the concept of unanimity, of vetoes and opting-outs. I
believe we can do this. The report of the Task Force on
Canadian Unity, to which I have already referred two or three
times, included, in my opinion, a formula which met this
objective while granting power of agreement to the people.
However, l must admit that this formula required the exist-
ence of a chamber of provinces which would vote on the
resolution on a simple majority. But since some people still
defend this type of an upper chamber, we might be able to
apply this formula one day.

What about the entrenchment of basic rights? Here again,
Mr. Speaker, there are two opposing views, the one which
maintains that the basic rights, which are fundamentally
evolutionary, are best guaranteed by the federal and provincial
legislatures which are more conscious of the subtleties of social
evolution. There is also a view which maintains that the basic
rights are inalienable rights which are best protected by the
Constitution itself, to which must submit both the legislatures
when they legislate and the judges when they interpret the
statutes. Both of these positions can be defended. For my part,
the choice is simply one of wisdom and political caution, one
of, and I quote:

—prevziling philosophy—

—as Jennings, who, as everyone knows, is a highly recom-
mended author, says.

One thing for sure, the prevailing philosophy today leans
toward entrenchment and several speakers have referred to
this trend in Canada, in countries governed by common law or
civil law, within international bodies. It has been said that the
Task Force on Canadian Unity stood as an exception to this
trend. This interpretation is wrong. ln fact we were going
much further than the present resolution in the way of enshrin-
ing and institutionalizing bilingualism at the federal and pro»
vincial levels. Our report may have recommended a slower
process than the present resolution does on rights relating to
education in both official languages, merely as a matter of
prudence. However it recommended—I suggest my friends
read it if they feel it was the opposite—that entrenchment be
effected as soon as a provincial consensus would be expressed.
And in fact, one could think it had already been expressed in
the meetings held in Montreal and St. Andrew’s in 1978. One
can also think it is now being expressed, at least in English-
speaking Canada, and l would think also in French-speaking
Canada—maybe not at the government level, on this subject.

In the present resolution, I think there is a consensus, however
I noted the matter was hardly discussed.

Relating to the freedom of movement and of settlement I
hope, Mr. Speaker, that all provinces will eventually agree to
cntrench all prerequisites of the economic union, even if it
means qualifying them by some GATT regulations on the
obligation to justify exceptions and to terminate them as soon
as social and economic conditions improve, possibly with an
arbitrator to decide on them.

While inclusion of the equalization principle does not seem
to raise any problems, I noticed that some people are not
logical in that they oppose some aspects of this resolution when
they do not raise any objection when they seek recognition.
They use those arguments when they do not agree but drop
them the moment they do.

Mr. Speaker, on balance, having taken into account philoso-
phy, law, convention, the art of the possible which is the
government of the people, I think that this resolution is
justified. But on balance is it not always how hard decisions
are taken? Last resort measures are often the only workable
solutions.

I hope we will resume within a short time the constitutional
reform discussions concerning the political institutions and
distribution of powers where we have so much to do. Mean-
while, I will keep on being interested in the constitutional
change and I assure you, Mr. Speaker, that I will live up to the
spirit of federalism in the transport area.

GOVERNMENT ORDERS

[English]

THE CONSTITUTION

ESTABLISHMENT OF SPECIAL JOINT COMMITTEE OF THE
SENATE AND HOUSE OF COMMONS

The House resumed consideration of the motion of the
Minister of Justice and Minister of State for Social Develop-
ment (Mr. Chrétien):

That a Special Joint Committee of the Senate and of the House of Commons
be appointed to consider and report upon the document entitled “Proposed
Resolution for a Joint Address to Her Majesty the Queen respecting the
Constitution of Canada” published by the government on October 2, 1980. and
to recommend in their report whether or not such an address, with such
amendments as the committee considers necessary, should be presented by both
Houses of Parliament to her Majesty the Queen;

That 15 members of the House of Commons to be designated no later than
three sitting days after the adoption olthis motion be members on the part of the
House of the Special Joint Committee;

That the committee have power to appoint from among its members such
subcommittees as may be deemed advisable and necessary and to delegate to
such subcommittees all or any of their powers except the power to report directly
to the House;

That the committee have power to sit during sittings and adjournments of the
House of Commons;

That the committee have power to send for persons, papers and records, and to
examine witnesses and to print such papers and evidence from day to day as may
be ordered by the committee;

That the committee submit their report not later than December 9, 1980;

That the quorum of the committee be 12 members, whenever a vote, resolu-
tion or other decision is taken, so long as both Houses are represented and that
the joint chairmen be authorized to hold meetings, to receive evidence and
authorize the printing thereof, when six members are present so long as both
Houses are represented; and

That a message be sent to the Senate requesting that House to unite with this
House for the above purpose, and to select, if the Senate deems it to be
advisable, members to act on the proposed Special Joint Committee.

The Acting Speaker (Mr. Blaker): When the debate was
interrupted at five o’clock the hon. Minister of Transport (Mr.
Pepin) had the floor. The Chair will now recognize the hon.
member for Dartmouth-Halifax East (Mr. Forrestall).

Mr. J. M. Forrestall (Dartmouth-Halifax East): It was a
very enlightening experience for me, this October 21, to sit in
my place and listen to the Minister of Transport (Mr. Pepin),
the very distinguished co-chairman of the committee which in
the initial stage looked at the events which led up to the—I
think, sometimes, innocuous—procedure which is being fol-
lowed by the present government with respect to our
constitution.

I say at the very outset to the minister, through you, sir, that
having followed the hearings and events which surrounded the
Pepin-Robarts commission, and as one who was somewhat
involved in previous measures, movements and studies by
government of some significance to this country, together with
others, I was not alone—not alone in this chamber, not alone
in the other place, not alone in this country—waiting to hear
the minister tell us how in hell he was going to swallow what it
was that Trudeau was trying to stuff down his throat.

With some respect, I say that the minister did a remarkable
job, first of all, of swallowing himself, of telling us what we
already know, what we already accept in all corners of this
House, which is that the content of what we are talking about
is generally acceptable. He told not only those of us who sit in
the opposition; he told the people in his own back benches as
well. I watched the 12 of them who were gathered around
behind him, in line with the cameras, applauding loudly. I also
noticed several of his colleagues not bothering to applaud.

I have a lot of respect and a lot of time for the contribution
the Minister of Transport has made to this country in a variety
of responsibilities. He has a good intellect, one which Canadi-
ans should pay attention to, and if the Prime Minister (Mr.
Trudeau) is a Canadian he, too, should listen to him. I wonder
whether he will bother to read the message left by the minis-
ter, who is a very distinguished scholar and Canadian, on this
particular question. I disagree with the minister when he said,
by way of excuse, that it was political prudence that would
lead him to support the proposals that are in front of us. I
wonder what his colleague, Mr. Robarts, would think of that,
Mr. Speaker.

As was the case with other hon. members, I enter this
debate with considerable concern, a concern which arises from
what I understand to be the implications to the Canadian
partnership which are inherent in the proposal that is before
us. The subject matter that is raised in this motion to establish
a joint committee to discuss the content of a joint address to
Her Majesty the Queen concerns not only myself, but I am
sure, many other Canadians.

One of the first points I want to make is that this govern-
ment and its supporting bureaucracy in dealing with this
matter are fully aware, as are all of us here, that the vast
majority of Canadians will not closely follow this debate. They
have other things to do. They have families to raise, other
business, social, human and personal commitments, and they
will not closely follow the details of these discussions. There-
fore, it is incumbent upon us in dealing with this aspect of the
measure which is before us to try to indicate to Canadians—in
my case to the people of Dartmouth on the eastern shore of
Nova Scotia—as it is our responsibility, some of the dangers
which are inherent in what is proposed.

In the next few minutes I hope I can in orderly fashion deal,
albeit superficially, with some of these matters. It is important
to patriate the constitution; there is no question about that.
Along with all who have spoken, I too express very sincerely
my support for a strong central government. There is nothing
new about that; it was expressed in 1867, I864 and even prior
to that. I support this notion in some kind of spirit of true
partnership, a true partnership with strong provincial
governments.

These concepts are not in conflict. Indeed, there cannot be
such a conflict in our system and under our structure. The
conflict arises only when one, the predominant partner—and I
say to the Minister of State for Mines (Mrs. Erola) that that is
not chauvinistic—attempts to impose upon the other, as the
Minister of Transport put it this afternoon. His concern is that
we are imposing. This concern is not with the content but with
the procedure and that is what I am saying. There can only be
conflict when the senior partner in this historic and traditional
partnership deliberately and unilaterally imposes its strength
and its will on the junior partner.

We have conducted our affairs in this country, not for 113
years, but for virtually 200 years under the British Crown. Is
Canada such a bad place? Are we not well off?

Mrs. Erola: We could be better off.

Mr. Forrestall: Mr. Speaker, the minister says that we are a
good country, we are well off but we could be better off. They
were saying that in 1854, in 1858, in 1864 and we are better
off. There is nothing wrong with what we are now, and we
have done it all under the British Crown. My objection to the
position and the process which we are now forced to follow and
probably will be forced to bow to because of the weight of the
government majority, is simply to the procedure, not the
content. The government is wrong. It will destroy this country
and it will destroy it knowingly and willingly with no regrets
whatsoever. If the hon. members opposite want my conclusion
now, I can tell them what it is and sit down.

An hon. Member: Don’t keep us in suspense.

Mr. Forrestall: That would be the typical retort or response
of a backbencher, supporter or trained seal. The Parliamentary
Secretary to President of the Privy Council (Mr. Collenette)
this afternoon in one of the most scurrilous attacks on the
opposition I have heard for a long time in this chamber
suggested we were wasting the time of the House in this
debate. It is rather interesting that the government backbench-
ers themselves, out of a sense of attempting to achieve some
vague level of glory, have spoken more frequently than the
opposition parties put together. Why is that? Who is delaying
the debate? In any event, nobody can delay this debate.

If every member in this chamber wants to get on his or her
feet and speak to his or her country then, by God, it is their
right, and no Speaker sitting in that chair, no prime minister
of this country and no government, no matter what their intent
or their end purpose, will ever change that. The moment it is
changed, we will not have a Canada. I suggest to my col-
leagues from Quebec that they sit up and listen and turn
around because I might just be what they would like to attack,
but I am not. I have spent 25 years in public life. I can say that
Quebeckers have not had the courage to travel to western
Canada, to northern Canada—

Some hon. Members: Oh, oh!

Mrs. Hervieux-Payette: We have been there more often
than you have been to Quebec.

Mr. Forrestall: I gather that is a rejection of what I had to
say, and I apologize, obviously, they all have, and they will not
have a question of privilege or a point of order.

[Translation]

Mrs. Hervieux-Fayette: Mr. Speaker, I rise on a point of
order. I should like to remind my hon. colleague that as MP
for Mercier I visited the west four times this year. I went to
Edmonton, three weeks ago, I went to Calgary, I went to
Vancouver; I would ask the hon. member to kindly retract his
remark.

[English]

Mr. Nielsen: Come up and see me in the Yukon sometime.

The Acting Speaker (Mr. Blaker): Order, please. I am not
sure whether that constitutes a valid point of order or whether
it is a point of debate, but in either case the hon. member for
Dartmouth-Halifax East (Mr. Forrestall) had already retract-
ed the comment. So I think we might recognize again the hon.
member for Dartmouth-Halifax East, unless the Minister of
State for Mines (Mrs. Erola) has a point of order.

Mrs. Erola: Since the hon. member has retracted his state-
ment, I should really withdraw mine as well, but I would like
to bring to his attention the fact that I too have on a number of
occasions this summer been out west, from Yellowknife to
British Columbia to Calgary. I have enjoyed each visit and I
am looking forward to further visits.

Mr. Chrétien: I suppose I should make the same point.

Mr. Forrestall: Mr. Speaker, I am intrigued by the indigna-
tion of the members opposite, because if they have travelled so
much in Canada why do they not understand what they are
doing to this country?

Some hon. Members: Hear, hear!

Mr. Forrestall: If they have been west, north and to Atlantic
Canada, then they should know that they are tearing this
country apart. They are trying to impose upon us something
which we do not want. They are trying to impose upon us a
procedure which is abhorrent to us.

I am not one of those in this country who is a great defender
of the Crown but I am one of its greatest exponents when it
comes to the system of central government that we enjoy. I
will not stand idly by and watch the Prime Minister, with the
blind support of hon. members opposite, impose unilaterally
measures which the people as a whole will accept only if they
are debated and agreed upon in this country.

How can anyone say that they want to end this era of
colonialism that has been referred to—it has been referred to
in different tongues in different parts of the country—how can
anyone say they want to bring an end to things as they are,
that they want the constitution in Canada while at the same
time bootlegging by way of the back door significant and
substantive proposals and measures which are not the subject
matter of wide dialogue and widespread requests from the
people of the country? On what basis do hon. members
opposite feel they can toy with the sentiments of western
Canada or the sentiments of Newfoundland? I am sure all
hon. members who are interested in this debate watched the
premier of the province of Newfoundland on television.

Some hon. Members: Oh, oh!

Mr. Forrestall: Hon. members opposite laugh at him.

An hon. Member: Yes.

Mr. Forrestall: Where is the hon. member for Gander-Twil-
Iingate (Mr. Baker)? Where is the minister from Newfound-
land? It is a good thing those two gentlemen are not in the
chamber because that is who members opposite are laughing
at. They are laughing at Canadians.

An hon. Member: Sit down!

An hon. Member: Resign!

Mr. Forrestall: Resign? Me? Ha! Long before I resign,
sir—

An hon. Member: You accept?

Mr. Forrestall: Long before I resign you will know that you
are going to fight this to the death, because I will not permit
you to act unilaterally.

An hon. Member: That is beautiful!

Mr. Chrétien: That is your motion tomorrow.

Mr. Forrestall: Bring home the constitution. Bring home the
agreed-upon formula. But do not shove down the throats of
Canadians amendments made to their constitution in the
British House of Commons. If the Prime Minister believes that
the British House of Commons will look only at the title of the
joint address, then I suggest those who support him in this
belief are blind and have not researched the matter. They are
acting only in blind support of the Prime Minister.

Some hon. members opposite have spoken with compassion
for this country and with some understanding of it. Those of
you who know me, know what my roots in Quebec are and I
am proud of them—a little more proud than might be suggest-
ed by some of the laughter and jests from the other side of the
chamber. But I expect that and accept it, Mr. Speaker.

I implore hon. members opposite not to let this country fall
apart as a result of their acting unilaterally. We are close to
agreement among the provinces on an amending formula—we
are very close. We are not far apart, as the government’s
damnable, inexcusable advertising program would suggest.
This country is not divided, although thc government is trying
to tell us that it is. They have shoved this view down our
throats for years. But we are not divided, Mr. Speaker. This is
a good, close-knit, close-working country. No one seriously
objects to the principles that are embedded in this resolution
but they can certainly object to the procedure. It is being done
illegally, by way of the back door. I agree with some of the
proposals and with some of the positions taken with respect to
various premiers. If anyone wants my frank opinion, I think
they were fools to go to the Supreme Court of Canada. This is
a political argument.

Some hon. Members: Hear, hear!

Mr. Forrestall: After some hon. members opposite have
spent 25 years in public life they can then come to me and talk
about it. I wonder if they know what it means to struggle. I
listened to the distinguished new member from Prince Edward
Island, the Parliamentary Secretary to the Minister of Fisher-
ies and Oceans (Mr. Henderson) speak of his early years in
this country and his love and dedication to it. It was a good
speech for a new member. I invite him to look around and get
to know other hon. members who represent all the people of
this country. Listen to them, please.

Mr. Henderson: I have.

Mr. Forrestall: No, you have not.

An hon. Member: You have turned a deaf ear.

Mr. Forrestall: The hon. member has turned a deaf ear. He
has denied everything he said this afternoon by his blind
support of unilateral action. This is a country of partnerships
and I should like to speak about that for a minute or two. I will
deal with two areas.

The other day I listened to—or, perhaps more correctly, I
should say read, because sometimes reading is more important
than listening—the speech of the Minister of Finance (Mr.
MacEachen), a distinguished Nova Scotian, and l have one or
two comments to make about his intervention in the House. I
want to touch briefly on the question of equalization as the
parliamentary secretary did this afternoon. I am not yet
convinced, and probably never will be, of the sincerity of the
minister’s argument because I do not believe he fully sub-
scribes to the principle. During his intervention he reiterated
his support, and presumably that of his cabinet colleagues, for
the principle of equalization. No one can really question that,
of course. The action of governments from those of Mr.
Diefenbaker to Mr. Pearson, to the Leader of the Opposition
(Mr. Clark) and the Prime Minister, have demonstrated the
protections that we need. Their actions regarding equalization
have been what the country wanted. There is no question
about that. What I do question, however, is how the Minister
of Finance could conceivably support the wording of the
proposed reference to a joint committee of the two Houses of
Parliament. I do not understand how he can allow such a
worth-while practice to be broken down in a manner that
would allow the government to use the principle of govern-
ment-to-pcople, direct transfers, to satisfy the principle of
equalization. I do not know how he can accept wording that
would lead to the kind of conflict and abuse that is possible.
That wording is unacceptable and is wrong.

The Minister of Finance has a long history of great contri-
butions to this chamber and to the country but his acceptance
of what is going on now defies the wildest imagination of Nova
Scotians or Atlantic Canadians or, indeed, any Canadian who
bothers to examine the situation. Yet he has accepted it. Why
he would not prefer wording that would require the purpose
and intent to be effected through appropriate provincial legis-
lation instead of around them or over their heads, Ijust do not
understand. In public and in private, its integrity should be
defended by such a proposal. With respect to the minister’s
second point, he directed his comments to the question of
offshore resources. Along the same lines, the argument or the
debate centres on ownership. In this regard, I not only find
myself in continuing disagreement with the Minister of
Finance (Mr. MacEachen), but as well with the Minister of
Labour (Mr. Regan) and other members of the government.

While the prospects of short-term financial gains under the
proposals of this government are attractive, it is the long-term
prospects and concerns which attract my attention. Implicit in
the Minister of Finance’s intervention in this debate—and I
cannot imagine why he did not refer to it—is the decision of
the Supreme Court of Canada in the so-called British
Columbia reference case. By his silence on the matter last
week, the minister left me with the clear impression that he
was extending a decision based on one set of facts to cover
another situation in another part of the country surrounded by
a different set of facts.

For the minister to rely on this ploy is out of character. At
worst, he implied that the decision extends to the waters
adjacent to Atlantic Canada, referring to the process which led
to the court decision respecting the B.C. reference. He knows
the language of the British North America Act. He knows
what section 7 says, namely:

The provinces of Nova Scotia and New Brunswick shall have the same limits
as at the passing of this act.

That is a very simple but meaningful statement. The British
Columbia reference led the court to a conclusion based on the
historical facts leading up to British Columbia joining confed-
eration. These historical facts do not reveal, in any research
that I and others have done on the subject, any conferring by
the British Crown of rights with respect to the sea, the seabed
and the resource, that is the sea and the seabed, which under
international law at that time and subsequently it was the
clear right of the British Crown to extend.

With regard to Nova Scotia and Newfoundland, the record
is very different. In our case, the British Crown did extend
rights which were clearly theirs to extend to governments or
administrations of the day. Perhaps it would serve the minister
and, in turn, Nova Scotians and others well if the minister
were to re-read our history, although I am sure he does not
have to do that. He might do worse than begin with the
intervention of the Hon. G. I. Smith of the other place on this
question as recently as July 10 of this year. My purpose is to
express to this House a determined belief that the resources
offshore in eastern Canada belong to Nova Scotia and New-
foundland. Quebec certainly holds the same view and Prince
Edward Island and New Brunswick are entitled to that view.
From every quarter we hear of growing involvement between
Quebec and Ottawa and the producing provinces of natural
gas.

I raise this final point to try to impress upon hon. members
some of the concerns we have over unilateral action. I raise it
in the context of resources offshore. In my opinion, there is
little doubt that officials in the two capitals have already
decided that Gros Cacouna will be the location of a new
petro-chemical industry using eastern Arctic gas and oil as
well as the gas and oil of Nova Scotia and Newfoundland. We
in Atlantic Canada will become nothing other than pipeline
caretakers if we do not own the resources affected. Federal
ownership will dictate the form and location of an industrial
base arising out of these resources.

We had hoped this could have been done in a spirit of
co-operation. Obviously it can no longer be done that way.
However, for Nova Scotians and Newfoundlanders, one of our
great tasks will be to protect this resource. It is clear that our
Atlantic ministers—the Minister of Fisheries and Oceans (Mr.
LeBlanc), the Minister of National Revenue (Mr. Rompkey),
the Minister of Finance and the Minister of Labour—have lost
their argument in cabinet. They have let us down.

Talks have taken place between officials of the province of
Quebec and the producing provinces which indicate that east
of Quebec gas would not be included for energy security,
backing up oil. Rather, it will be to create the initial base for
an industrial complex based upon gas and oil. That industrial
base, if allowed to go ahead the way it is, will characterize this
government’s attitude with regard to the four Atlantic
provinces.

This is a good country. The subject matter of this resolution
gives me very little difficulty though I disagree wholeheartedly
with the unilateral way in which the government is acting.
Since we are so close to unanimity among the provinces and
the federal government on the amending formula, why deny us
the time? Some members opposite say it is not a question of
time, but that it is about time. Watch them all applaud.
Silence. I caught them in their own act. Why can we not have
a little more time?

I said earlier that it was wrong for the provinces to go to the
courts, but the Prime Minister has forced them to do that. I
wish they would have said: let us have patriation with an
agreed-upon amending formula. Then we could have had a
debate we could all understand instead of muddying the waters
with detail.

We are asking the British Parliament to deal with matters
we will not deal with ourselves. That is wrong and I object to
it. As an Atlantic Canadian and as a Nova Scotian, I say the
government is going about this the wrong way. They are
sowing the seeds which will tear this country apart. Do you not
know Newfoundland? If you did not listen to the premier of
that province last night, I suggest you obtain a transcript and
read it, because he was serious. The premier of the province of
Alberta did not just put through the matter of a referendum
just willy>nilly, and if you think you can fight that, you are
wrong. You are addressing yourselves to a break-up of this
country.

Some hon. Members: Oh, oh!

Mr. Forrestall: What would you know about it? Why do
you not go there and find out? What the hell would you know
about it? Go out there and find out. Go out to Fort McMurray
and into Tyvan, Saskatchewan and ask the wheat growers. Go
to Ecum Secum. Stand on the wharf and see what the people
think of what you are doing. Go to Lloydminster. Go to
Vegreville. Go into the valleys of British Columbia. Go into
those magnificent mountains. Go and find out. Hon. members
over there are supporting a leader who is sowing the seeds of
destruction of a way of life in this country. The British Crown
that you fellows so deride has not served us badly for 200
years—not 53 years, but 200 years.

Let us get agreement and let us proceed by way of agree-
ment, not by way of confrontation or fighting or argument.
Why divide and conquer a country that wants to get on with
living and working, providing for its families and providing for
national and international security?

This matter before us is important. It is important to all of
us. Our blind following of the dictates of a man who wants to
be prime minister of a unitary state, a man who wants to be
president of his own republic, will lead only to dissension and
division. As I mentioned earlier—and this is especially for the
Minister of Transport, the distinguished co-chairman from our
committee—to suggest to those who know him that he has
decided, to support this measure because it is politically pru-
dent, is a position that is not acceptable to me. I say to you,
Mr. Speaker, that the longer this debate goes on, the more
often and the more frequent hon. members opposite will hear
their constituents voicing their objections to the unilateral
action they are so blindly supporting.

Hon. Erik Nielsen (Yukon): Mr. Speaker, I could say, along
with most members who have participated in this debate, that
I am happy to be taking part in it. But I am not going to say
that. I am not going to say that for much the same reasons as
the hon. member for Nunatsiaq (Mr. Ittinuar) expressed
earlier this evening.

I come from a region which has been denied a voice, denied
a voice at the table and, until now, denied a voice in the
debate. The spokesman for our party, the hon. member for
Provencher (Mr. Epp) when opening this debate was the first
to speak of Canadians above the 60th parallel. I want to add
that voice to this debate in addition to the hon. member for
Nunatsiaq.

It has been the intention of our party to approach the issue
of constitutional change in a comprehensive and open-minded
manner. That has always been our intention. It has been
rendered extremely difficult by the Prime Minister’s arbitrary
and capricious method of imposing change through the
medium of the British Parliament against the strongly voiced
opposition of the majority of the premiers of this country. It
has been rendered difficult also by his refusal to accept the
fact that the premiers have exactly the same rights and
privileges in matters under their jurisdiction as he, the Prime
Minister (Mr. Trudeau), has in federal matters. They have the
same right and responsibility to put forward their views on
matters affecting theirprovinces. It has been rendered dif-
ficult, too, by his insistence upon regarding the constitutional
issue as a very personal one, one that he is peculiarly qualified
to solve—so he thinks—to the point where all those who dare
disagree are stigmatized as anti-Canadian. And that has been
the tack over there. It has been rendered difficult, too, by the
Prime Minister’s insistence on creating straw men—putting
the premiers in a false position, by setting out the issues in his
terms, and in his terms only. It has been rendered difficult,
too, by the deliberate attempt of the Liberal government party
to mould, to shape and to manipulate public opinion in this
country under the guise of legitimate advertising, and embark-
ing on a new era of mind control, the Orwellian 1984 concept.

Since it is my intention to move an amendment this evening,
rather than run out of time before doing so, I intend to put it
to the House now and then carry on with my remarks. I put
this amendment to the House in the hope that it will be
accepted in the sense of parliamentary fair play, in keeping
with the rules as they used to be before they were altered by
the present Prime Minister thus rendering less effective the
meaningfulness of this place. I hope it will gain the support of
those to my left who appear not to be listening. They might as
well be across the aisle for all it matters. From what I hear on
the news tonight, they believe they are there. I think, Mr.
Speaker, the fix is in and that there will be some kind of
perception, some attempt to create the kind of conciliatory
process which will allow the public to come away with the
belief that the Prime Minister has graciously conceded to the
adjurations of the Leader of the New Democratic Party (Mr.
Broadbent). That is a sham and it will come back to haunt
them.

An hon. Member: That is democracy.

Mr. Nielsen: That is democratic? Hon. members over there
would not know what democratic is or what it means.
The motion l wish to move for your consideration, Mr.
Speaker—and you may want to take it under advisement until
tomorrow—is:

Thai the motion now before the House be amended by adding thereto after
the sixth paragraph the following:

Notwithstanding any Standing Orders or practices of either House, the
committee shall have the power to table a minority report with its main report.
and any such report shall be tabled by the committee if signed by three or
more members of the committee.

Quite apart from the numerical qualifications in that
motion, that used to be our practice in this place. But a few
years ago, under the changes in the rules—would the gentle-
man bring back the copy of my speech please? It is caught
under the copy of the amendment.

Some hon. Members: Oh, oh!

An hon. Member: Table your speech.

Mr. Nielsen: Notwithstanding that the present Prime Minis-
ter had those rules changed, the fact remains that it used to be
the practice in this place that a dissenting voice in committee
could be heard. However, under the changes he brought about,
they cannot be heard at all, a matter of such importance as
this is an occasion when, if there is a minority voice to be
heard, it should be heard, and that is the purpose of the
resolution.

If they are not out to gag us and if they are not out to
preclude another point of view being heard, there will be no
difficulty over there and certainly no difficulty on my left. I
see that the hon. member for Winnipeg North Centre (Mr.
Knowles) is in his seat now. He remembers this procedure very
well.

Mr. Knowles: No, I have never heard of it.

Mr. Nielsen: You have never heard of a minority report?

Mr. Knowles: Never heard of it.

Mr. Nielsen: Well, I am surprised.

Mr. Knowles: Mr. Speaker, would the hon. member permit
a question?

Mr. Nielsen: Certainly. That used to be a custom which
seems to have been forgotten in this place, but we always
permit questions.

Mr. Knowles: Would the hon. member permit a question?

Mr. Nielsen: Certainly.

Mr. Knowles: Is he not confusing the fact that minority
members in committee have made statements outside the
House and reports to the press, with what he is now propos-
ing? I do not recall a committee ever having a minority report
tabled in the House.

Mr. Nielsen: The committee itself never had the power to
file a minority report, but members on the committee had the
opportunity to file a minority report.

Mr. Chénier: Now you are confused.

Mr. Nielsen: I am not the one who is confused. It is that
hon. member over there who keeps hopping from seat to seat
and interjecting and never taking part in debates who I always
hear.

In the instrument that is now before Parliament the Prime
Minister and his Liberal government are attempting to do
something which has never been attempted in this country
before and perhaps not in any country at all with a constituv
tional and parliamentary democracy.

They are attempting unilaterally to rewrite and revise the
constitution in a manner decided upon by the Prime Minister
and his advisers in the bowels of the Langevin Block in areas-
and there certainly can be no argument on the opposite side or
to my left-which are definitely as well under provincial
jurisdiction as they are under federal. They are attempting not
simply to patriate but unilaterally to rewrite and deeply revise
the constitution in a manner decided upon by the Prime
Minister and his advisers. They are attempting to impose upon
all Canadians, regardless of their political belief, a Liberal
party constitution created in the smoke-filled backrooms in the
bowels of l’Edifice Langevin. I know. I have been there, and I
know how they operate over there.

An hon. Member: For how long?

Mr. Nielsen: I know where all this nonsense came from.

Mr. Harquail: How long were you there?

Mr. Nielsen: We may not have been there long, and perhaps
the people of this country will very soon have cause to regret
that we were not there a little bit longer. However, that is
where this kind of leaked cabinet document for-ministers’-
eyes-only comes from.

When I read this document and studied it, I went back to
my copy of “Machiavelli the Prince”. I read it and re-read it
and compared it. I had two copies of “Machiavelli the Prince”.
I burned my other one because this cabinet document is the
update. “Machiavelli the Prince” is now irrelevant. It has no
more meaning because this cabinet document is the update on
how to manoeuvre, manipulate and shape public opinion to
conform with Liberal policy while it is being made. This is a
very, very dangerous direction for the political life of this
country to be taking.

Knowing that what they are doing cannot be done constitu-
tionally in Canada, they are going over to ask the British
Parliament to change the constitution for them. They do not
have the courage to do it here. They do not have the courage to
submit what they are attempting to the scrutiny of public
debate here. They are going to the British parliament to do it
for them. That is a strange performance for a government
which, though constantly reiterating its desire to remove the
vestiges of colonialism, places us in the north, as my colleague,
the hon. member for Nunatsiaq said today, in a strait-jacket of
colonialism where Liberal policy will keep us forever and a
day.

The constitution is more than a document. It is more than a
scrap of paper. It is the backbone of a nation. Canadians in
general have a vision of what this country is and ought to be,
and I am convinced that it is not the view put forward by the
Prime Minister and the present government. In his discussions
with the premiers the Prime Minister spoke of two versions of
Canada—his, and that upheld by the premiers. The Prime
Minister’s version is now embodied in the document placed
before the House, and it is a version which enables the federal
government to impose its views on all Canadians. We on this
side and, indeed, across the country have reiterated the posi-
tion that no one is opposed to patriation.

Some hon. Members: Hear, hear!

Mr. Nielsen: We think the constitution should come back,
but we think it should be brought back unaltered and
unchanged, and it should be brought back, the British North
America Act, exactly as it has been since 1867.

Some hon. Members: Hear, hear!

Mr. Nielsen: We think that whatever changes are made
should be made in Canada by Canadians and certainly
through a process of consensus involving the premiers rather
than by arbitrary imposition, which is the direction this gov-
ernment is taking.

We are told now that it was only because of a last minute
cooling off among the Prime Minister’s advisers that there is
not included in this document before us a device for the
assumption by the federal government of equally arbitrary
economic powers. Anyone who witnessed the Prime Minister’s
performance at the federal-provincial first ministers’ confer-
ence will not feel any surprise at this information. Nothing
could be more disruptive of the state of unity of this nation
than the attitude of the Prime Minister, and attitude which
has done more to sow the seeds of disunity in this country since
he took office in 1968 than any other single force in our
history. His idea is to bulldoze—and that is the word for it,
bulldoze—his version of confederation into place regardless of
those elected to represent the people and the views of the
people of the provinces. Mark my words, sir, I fully expect
hon. members opposite, led by the present Prime Minister, to
impose closure on us in this very important debate.

Mr. Harquail: It won’t be necessary.

Mr. Nielsen: The hon. member for whatever says it will not
be necessary. I have travelled a few times with him. I have a
hard enough time remembering the ridings of my own area.

Mr. Harquail: Tell us what Joe told you to say.

Mr. Nielsen: The member for nowhere. I am speaking about
the democratic process in this country, which is something the
hon. member should study. If he does so, he might understand
it.

What the Prime Minister is doing now in bullclozing his
version of his confederation into place is nothing short of an
invitation to anarchy. Those are my views and the views which
are being expressed by Canadians in the north who, up until
this afternoon, have been denied any voice in this debate. The
hon. member for Ottawa Centre (Mr. Evans) likens us to
municipalities, but he and others like him, including the hon.
member who is interjecting now, have their own premiers to
speak for them. We do not.

Mr. Harquail: Our premier is with us.

Mr. Nielsen: Regardless of where a premier is at, yea or
nay, he at least speaks for the people of his province. Canadi-
ans above the 60th parallel were denied that basic fundamen-
tal right. Hon. members talk about entrenchment of a charter
of human rights to speak, feel and think as we please. We, as
Canadians above the 60th, cannot even be heard, and that is
what we object to. To be heard is fundamental to any demo-
cratic process. We have been denied even that right.

An hon. Member: You are being heard right now.

Mr. Nielsen: I hear an interjection from my left, probably
from someone from Saskatchewan. I do not know. It came
from over there.

Mr. Riis: Behind you.

Mr. Nielsen: All right. I will Iet you go this time.

Mr. Althouse: We were listening.

Mr. Nielsen: Nothing could be more disruptive of the state
of unity in this country. That goes without saying. The Prime
Minister used the constitutional issue to catapult himself to the
leadership of his party in the first instance, and he has been
flogging the same horse ever since. At the Victoria conference,
the Prime Minister would have been delighted to acquire from
the premiers present an assurance of constitutional change
guaranteeing the right of both languages from coast to coast.
He was unable to get their consensus, partly because of
resistance in the west but more because of the objections of the
Liberal Premier of Quebec who had his own ideas about
language rights embodied in Bill 22 of that province. Later it
was further elaborated in Bill 101 under the separatist govern-
ment of Premier Levesque and had the effect of removing from
parents the right to choose the language of education.

I want to say immediately to members from that province,
most of whom are opposite, that I have been an advocate of
constitutional recognition of language rights since entering this
House. I am on record more than once to that effect. The
Prime Minister bit off half the apple in the Official Languages
Act, which was, as you will recall, sir, the constitutional
amendment slipped in under the table but which did not give
constitutional authority to the sweeping recognition of lan-
guages which he was seeking.

So now he is back with the declaration of rights, through
which he seeks to smuggle into the constitution language
recognition which he could not achieve in any other way
because at this stage it is unacceptable to quite a number of
the provinces, including the province of Quebec.

Again I would emphasize that in my own personal view the
question of educational arid language rights is fundamental. It
relates directly to the freedom of the individual and should be
recognized in any constitution of this country. At the same
time, it cannot be forced down the throats of the provinces
without grave danger to national unity. We are discovering it
in this debate, we are discovering it in the editorials of the
leading newspapers throughout the country, including all of
them in the province of Quebec.

Some hon. Members: Oh, oh!

Mr. Nielsen: If the hon. lady wishes to ask a question, I
would be very happy to respond. No? I would point out, sir,
that the constitution of 1867 provided certain recognition by
the Fathers of Confederation, who were signatories of that
document as well as of those thereafter, of language and
educational rights in the provinces.

As pointed out recently by Premier Buchanan, the Prime
Minister and his government have no mandate to make
changes in the constitution over the objections of the provinces.

To make changes, as Mr, St. Laurent did in 1949, following
consultation and consensus is one thing. To attempt to do so
over the objections of the majority of provincial premiers,
nullifies, ofcourse, the Prime Minister’s own amending formula
and, in effect, strikes at the fabric of Canada.

If the Prime Minister has abrogated his sense of responsibil-
ity in an unreasoning insistence on creating a place in history
for himself regardless of the consequences to Canada, surely
there must be some people on the government side who
recognize and realize what Canada is all about.

This nation was built on compromise, not revolution; on
mutual agreement, not constitutional activism; on consensus,
not the arbitrary imposition of one pers0n’s ideas. It is time for
the Prime Minister and the government to stop treating the
constitution as a scrap of paper. Over and over we have heard
it referred to as a British document. In fact it is a Canadian
document, created by Canadians and drafted by Canadians
long before it went to London.

We have all agreed that there must be change. As far as the
Prime Minister is concerned, the necessity to consult and the
need for unanimity or near unanimity simply represents what
he calls a strait-jacket. It is understandable that he would feel
that way, but this is the kind of federal-provincial balance the
Canadian people want. At one time or another, the rule of
consultation and consensus, which has never insisted on
unanimity, has been called forth by every premier, of Quebec
as well as of the other provinces. In fact, no province today is
complaining more loudly than Quebec, from all political quar-
ters in that province.

An hon. Member: Do you want Lévesque?

Mr. Nielsen: I do not know the hon. member’s riding but he
asks whether I want Levesque, I will not join issue with him.
Even the material made available by the Prime Minister’s
office to Liberal party members—and I have it all—outlining
and commenting on the highlights of the proposed resolution
makes it clear that what we are talking about is more than
simple patriation. What we are talking about, in effect, deals
with far-reaching and major constitutional amendments smug-
gled in under the guise of patriation. That material says in
part:

ln addition to patriation. the resolution contains several important constitutional
provisions:

Then it goes on to list them. We have already heard from
members on this side with respect to our objections to section
42, one of the most invidious sections in the whole of the
constitutional proposal.

I repeat, sir, that there is no quarrel whatever with simple I
patriation. There is no quarrel, so far as I and members on this
side are concerned, with recognizing equal language rights
from coast to coast. But what we have before us is infinitely
more than that. This is a hastily thrown together attempt to
produce what is now in effect a new and revised constitution,
using the device of patriation. It is an unprincipled attempt,l
suggest, to use the British Parliament to bring about amend-
ments which the government does not have the constitutional
authority or the moral fortitude to bring about by itself.
Furthermore, it has all been brought about in the context of an
almost unanimous rejection by the premiers of the provinces of
the pretension of this government to go it alone in major and
substantial constitutional changes.

We have the right to ask whether the government’s emissar-
ies, those extraordinary envoys who have apprised the British
parliament of these facts, the Secretary of State for External
Affairs (Mr. MacGuigan) and the minister for government
propaganda—I cannot remember the proper name of his port-
folio—

An hon. Member: The Minister of Communications.

Mr. Nielsen: That is it, that is the nice term. They went over
there to see the Queen. One is irresistibly reminded of the
nursery rhyme:

Pussy cat, pussy cat, where have you been?
I have been to London to see the Queen.
Pussy cat, pussy cat, what did you do there?
l caught a little mouse under the chair.

Mr. Speaker, methinks it was a rat they caught under the
chair. That is what is hidden in this document. lf the Prime
Minister and the government are permitted to carry this
resolution through to a conclusion, we will be dealing with a
new and different constitution imposed hastily and against the
wishes of the majority of the provinces. All the checks and
balances which have grown up over 100 years will be
destroyed.

Coming to the performance of the Minister of Justice (Mr.
Chrétien)—who was here earlier tonight and l am sorry is not
here now—I want to make as many allowances for him as
possible because, through the years, he has been a good friend
of mine. We all understand his commitment to constitutional
revision, which is second only to that of the Prime Minister.
He has talked about promises made during the referendum
campaign. We have no way of knowing, of course, what
promises the minister may have made within the purlieus of
his own riding. For all we know, he may have promised the
moon. But he cannot expect Parliament to make good on all
the promises he may have made in the referendum campaign.
He may have been guilty of overselling, but that is between
himself and his electors. We are dealing with an attempt by
the government to do away in one fell swoop with a system we
have enjoyed for over 100 years. We are dealing with an
attempt to replace a system we have enjoyed for over a century
with one devised by the Prime Minister. We are faced with a
situation which is absolutely unique in our history when the
Government of Canada decides to revise and amend, in effect
to rewrite, the Canadian Constitution through the instrumen-
tality of the British parliament, in spite of the fact that the
majority of the provinces are against it.

What are the principles embodied in the Prime Minister’s
amending formula? How easily he and his government toss
them aside when it is a question of replacing the constitution
with one that they want. How easily we can understand the
socialist government of Saskatchewan and the position of the
socialist party in this House. They believe in the absolute right
of the state to control everything. That is their overriding
principle and the mere matter of the constitution does not
change that position, despite the remarks of the critic for the
NDP. There have been criticisms, too, from the government
side, of the proposal, by the premiers to take the government
to court to block the proposed action. I can see nothing wrong
with that. An implication that this action is undemocratic or
indefensible is not quite understandable when that party them-
selves referred Bill 60 to the Supreme Court.

l put it this way, sir. if it is not unconstitutional for the
federal government to rewrite and revise the Constitution of
Canada unilaterally, then what could possibly be unconstitu-
tional? l do not see how any of these proposals can have any
effect at the provincial level unless the provincial legislatures
ratify and agree with them. Certainly the proposed bill of
rights, which falls squarely within the property and civil rights
section of provincial jurisdiction, can end any legal standing in
any province until and unless adopted by the legislature of that
province.

It made me sick to hear the Minister of Justice (Mr.
Chrétien) and others opposite refer to the Right Hon. John
Diefenbaker’s proposals. Mr. Diefenbaker would not be pursu-
ing the course that is being pursued here today. He would have
sent his Bill of Rights to London and he would have had it
incorporated into the constitution. He would not have gone
even that far without the consensus of the provincial premiers,
because if any man in this country knew what the constitution-
al bounds rested upon, it was that right hon. gentleman who is
no longer with us. The first ones to cry loudly to Heaven
against such an action would have been those who sit opposite.
Mr. Diefenbaker was too good a Canadian and too good a
constitutionalist to engage in this kind of constitutional sleight
of hand.

I say to the Liberal majority over there—those who won an
election by telling the people of Canada that they would not
increase the price of oil and who are now riding roughshod
over provincial rights—that there is a great deal more to the
constitutional arrangement than a scrap of paper, which is how
they seem to regard it. The constitution can only be honoured
if it is respected by those it is intended to serve. It cannot be
imposed and forced upon people by a government majority in
Parliament. I repeat, we are for patriation; bring it back and
we will support it. But bring it back unchanged. When it is in
Canadian hands then we will go about amending the constitu-
tion in a constitutional way, in Canada.

What the government is doing is illegal by the criteria of
their own formula. We want language rights; we will put them
in the constitution when each province ratifies that proposal
within its own jurisdiction. That is what Quebec wants and
that is what the majority of the provinces want. This, sir, is an
amendment by force, an amendment by compulsion. This is
nothing more or less than the rape of the constitution by the
Liberal party. Speaker after speaker over there has risen to say
agreement cannot be reached. That is their excuse for going
this route. They say the provinces are too slow in consenting,
that they do not move quickly enough for this Liberal majori-
ty. lt used to be the socialists who were Liberals in a hurry and
now it is the Liberals who are republicans in a hurry. They
cannot wait for the exercise of provincial rights so they wipe
them out, wipe them right out of the book. If you can do this
you can do anything.

The Prime Minister has already promised to make further
changes satisfactory and appealing to his friends, allies and
bedmates in the NDP. Apparently that has happened tonight.
I do not know what the details are, but it is all part and parcel
of their tactics. The Prime Minister’s attitude is that the
constitution belongs to him and to the Liberal party. He will
make the changes. He will write in whatever they want. He
has absolute power. What is a constitution worth under those
circumstances? It is simply a Liberal document put together in
the back rooms of the Liberal party and shoved down the
throats of an unwilling nation. Can anyone blame the premiers
for going to court? Perhaps in the courts of this country they
will find some last vestige of constitutional consciousness, some
recognition that the constitution is not the personal property of
the Liberal party and the Prime Minister. How often have we
heard the cry: “They are moving too slowly for us, so we will
shove it down their throats; they are impeding our course, so
out they must go”? We have heard it over and over again in
the procedural arguments, particularly after the House leader
spoke the other day. All of a sudden the clamps came down;
everybody was supposed to stop talking, stop debating and
away we go, in the face of the Prime Minister’s assurance that
every single member of this House, from all parts of the
country, would have freedom to express his views.

When this matter goes to committee, sir, that committee
rule of the guillotine after five minutes is going to be imposed
by the Liberal majority. Make no mistake about it, there will
be no opportunity for any meaningful participation in debate.
Even if it were possible somehow to avoid the tricky process
which the government has adopted in putting this matter
before the House, we cannot touch the substance of the matter
at all. All we can debate is the resolution, as was pointed out
by the opposition House leader. We dare to oppose so down we
go. We are dead. We are emasculated by the process which
has been designed by the government in Machiavellian terms
to bring this about. We cannot even ask for time to make
suggestions. Not even that. The new absolutism does not
tolerate criticism. The new might, the manipulation of the
public mind to suit the policies to be shaped by the government
in power, does not tolerate criticism. It crushes it beneath the
boots of the hobnailed Liberal majority just as it crushed the
life out any attempt by Canadians who live above the 60th
parallel to be heard at that table. We were not important
enough. The hon. member for Ottawa Centre (Mr. Evans)
says we only number 25,000 people. But we have 15,000
voters, which is more than the combined total of Manitoba,
Saskatchewan, Alberta and British Columbia when they came
into confederation, and we have been fighting for 25 years-a
quarter of a century—to get into confederation on the basis of
contributing to the constitutional and federated fabric of this
country. But as long as that party sits over there, sir, we will
never realize our legitimate aspiration, the aspiration of
Canadians who are just as equal as any Canadian in southern
Canada.

Some hon. Members: Hear, hear!

Mr. Knowles: Mr. Speaker, I rise briefly on a point of order,
as we sometimes say, to set the record straight. During the
course of his speech, the hon. member for Yukon (Mr. Niel-
sen) said that in the old days the tabling of minority reports by
committees was always the practice. I questioned this com-
ment and he challenged by memory when I said that in the
years that l have been here I have never known a committee of
the House to be permitted to table a minority report.

It would take a great deal of time if I sought to read
everything that is written on the issue, but I draw the attention
of my hon. friend to Beauchesne, fifth edition, citations 640,
641 and so on. If the hon. member thinks that the fifth edition
is a recent edition published since certain rule changes were
made, I would refer him back to the fourth edition of Beau-
chesne which was published in 1958 and draw to his attention
citations 318 and 319. In both these volumes it is made clear
that the only report that can be tabled by a committee is the
report passed by the majority. The citations even go so far as
to say that the chairman of the committee must sign that
report even if he was against it. Beauchesne clearly says that
no minority report can be tabled. If that is not enough, I would
refer the hon. member to May’s, nineteenth edition, pages 658
and 659 where the same practice is outlined.

I am not rising at this point to enter into any discussion on
the procedural admissibility of the hon. member’s motion; I
am merely confirming my memory and questioning his. He
really cannot get away with the statement that in the old days
minority reports were tabled. They were released outside the
House, but not in the House.

Mr. Deputy Speaker: Order, please. The Chair thanks the
hon. member for Winnipeg North Centre (Mr. Knowles) for
his intervention and reserves judgment on the admissibility of
the proposed amendment. If any hon. members would care to
offer argument at this point concerning admissibility of the
amendment, the Chair would entertain them.

Mr. Nielsen: Mr. Speaker, I do not intend to delay debate
on the motion.

Some hon. Members: Oh, oh!

Mr. Nielsen: Why are members opposite laughing? They
have been jeering throughout this whole debate, so I guess it is
not surprising. I do not want to delay the House by speaking to
the admissibility of the motion, but I do want to say that there
is a difference between what I am saying and what the hon.
member for Winnipeg North Centre (Mr. Knowles) is saying.
Minority reports were not accepted as separate reports at the
table, nor were they accepted as reports coming from the
committee, but in those days there was the kind of approach to
procedure in committee by which, if there were numbers
favouring a minority view—and I forget the numbers—or even
a sense by the committee chairman and members on the
committee that there was a minority point of view, then that
point of view came forward under the signature of the
chairman.

I am not trying to sell the House the idea that there used to
be a right to table minority reports, not at all.

Mr. Knowles: That is not what you said earlier.

Mr. Nielsen: The hon. member may have misunderstood
what I was saying. He knows as well as I do that minority
viewpoints were included in the report when it came back
before the House and they were debated. That, in essence, IS
what is being proposed by this motion-a right, because of
changes in the practices here, for the minority voice in that
committee to go forward with the report notwithstanding any
rules and practices that may exist now.

If that amendment is not accepted we know what will
happen. I appeal to the hon. member for Winnipeg North
Centre who has been around through the changes, because a
minority report will not see the light of day in any report
which comes back to this House. My sole objective in moving
this amendment is to ensure that if there is a minority voice
which emerges in our committee considerations it will be heard
and debated in this House.

[Translation]

Mr. Pinard: Mr. Speaker, you invited hon. members to
comment, if they wish, on whether or not the amendment is
receivable. I should like to say a few words in that regard. My
colleagues spoke of the good old days. I can go back no further
than 1972 for obvious reasons, but I could perhaps draw your
attention to the Journals for March 16, 1972, page 194, where
it is stipulated that:

Though, in its report, a committee can mention the opinion of those of its
members who do not share the views of the majority of their colleagues. it may
not tablea minority report in the House.

Obviously, it is pointless for me to add anything more. That,
then, is the extent of my participation to the debate in answer
to your invitation to comment on whether or not the amend-
ment is rcceivable; once again, that amendment is nothing but
another dilatory measure proposed by a Progressive Conserva-
tive member.

Mr. Deputy Speaker: I thank the minister.

[English]

Mr. Taylor: Mr. Speaker, on the point of order, I would like
to say that the proposal we are debating is, as members
opposite tell us, concerned with the protection of minorities.
Perhaps we should start protecting the minorities of this
House. This House is its own master, irrespective of what it
says in Beauchesne. The Alberta legislature, which is more
democratic, has been accepting minority reports—

Some hon. Members: Oh, oh!

Mr. Taylor: If you throw a stone at a bunch of dogs and
three or four of them start howling, you know what happens. I
myself have signed a minority report on a legislative commit-
tee in Alberta. Surely this House will not deny the rights of the
minority when the whole matter about which we are talking is
for the protection of those rights.

Mr. Nielsen: Mr. Speaker, may I suggest with respect to our
process tonight that the Chair take the amendment under
advisement and hear argument tomorrow as to its admissibility
or inadmissibility so that we may proceed with the debate
tonight. Itunderstand that the hon. parliamentary secretary
opposite intends to follow me in the debate.

Mr. Deputy Speaker: Order, please. The Chair has indicat-
ed its reservations concerning the admissibility of the amend-
ment and has invited comments at this stage. If there is no
further comment, the Chair will recognize speakers in the
debate.

Mr. McCain: Mr. Speaker, with respect to the admissibility
of the amendment proposed by the hon. member for Yukon
(Mr. Nielsen), it seems to me that it is not only a matter for
your consideration but also for the consideration of the govern-
ment. Ifit does in fact wish to present this matter in good faith
as good Canadians, I submit that it should support the presen-
tation of this amendment by the hon. member for Yukon. If,
on the other hand, they wish and intend to frustrate the
process which has been practised in this House and in this
nation since 1867, then they will certainly impose their influ-
ence upon you to rule this motion out of order. You, sir, as the
Speaker, have acknowledged your responsibility. I hope that
the native responsibilities which are incumbent upon a broad-
minded government will cause it to pursue a favourable con-
sideration of this motion.

Mr. Deputy Speaker: The Chair would call to the attention
of the hon. member for Carleton-Charlotte (Mr. McCain) that
it will rule within its own capacity on the admissibility of the
amendment. If there are any further comments on the admissi-
bility of the proposed amendment, the Chair would like to hear
them now and, if not, the Chair will defer its decision until
tomorrow.

Mr. Nielsen: Mr. Speaker, I will be very brief because I
have suggested in a spirit of reasonableness that we suspend
the argument on the amendment until tomorrow rather than
interrupting the progress of the debate tonight. If I am going
to be precluded from speaking to the matter tomorrow, I
would point out—

Mr. Knowles: Thursday, tomorrow, is an opposition day.

Mr. Nielsen: I am sorry, it is Thursday. The hon. member
has correctly pointed out that tomorrow is an opposition day.
The intervention by the President of the Privy Council (Mr.
Pinard), who is very skilful at throwing sand in these debates
on procedural matters, has nothing to do with the existing
rules simply because of the opening words of the motion.
There may have been a flaw and, indeed, one must go along
with the Chair’s ruling pursuant to the practices of this House
with respect to the amendment presented by the opposition
House leader the other day. That amendment was not prefaced
by the words “notwithstanding the Standing Orders and prac-
tices ol either House”, as those words prefaced the amendment
we are discussing now.

What this amendment is requesting the House to do is to
suspend the very Standing Order which the government House
leader asks the Chair to invoke against it. It is asking the
House to suspend the Standing Orders and practices of the
House for the purpose of ensuring that a gag will not be placed
on the voice of the minority on that committee. Any member
who has been around here for any time at all, knows what
happens in committee. We are gagged by a five-minute rule.

We are gagged by a Liberal majority which, if it does not stay
there, walks out when something happens that does not please
it. This amendment ensures that there will be carried into
practice the very thing that the government is asking us to
enshrine in its bill of rights in this constitution amendment,
namely, the voice of the minority.

That is what this amendment is asking the government to
do. They can adopt the course of trying to stonewall it by
procedural argument—asking the Chair to rule it out of order
on procedural grounds, but if they did the right thing and were
not afraid of the minority voice they would allow it to be heard
when that report comes back to the House.

Mr. Deputy Speaker: Order, please. The Chair has heard
the hon. member for Yukon (Mr. Nielsen) three times on the
point of order. One aspect, however, has not been touched on
by anyone who has spoken to date and that is the references to
the practices of either House. The Chair has some concern
about a resolution of this House apparently giving an instruc-
tion concerning the practices of the other place. That is a
matter which, l am sure, the Chair will take under advisement.
As I indicated earlier, at this stage the Chair would like to
reserve judgment. The Chair will recognize the hon. member
for Portage-Marquette (Mr. Mayer).

Mr. Mayer: Mr. Speaker, I have a very brief observation to
make. It seems to me that in the democratic system that is
embodied in this chamber, one of the most difficult and most
delicate things a democratic system has to deal with is the
treatment of minorities once the majority has assumed power.
lf we, by definition are the minority in this House—

Mr. Deputy Speaker: Order, please. The Chair has asked
hon. members to defer comment on the point of order unlus
they have something fundamental to contribute. The Chair
would like to recognize speakers in the general debate with the
concurrence of the House. This was the suggestion made by
hon. members, including the mover of the amendment. With
the concurrence of the House the Chair would like to proceed
in this way.

Are there other hon. members who wish to speak on the
motion before the House?

Mr. Fred McCain (Carleton-Charlotte): Mr. Speaker, like
the hon. member for Yukon (Mr. Nielsen)—

An hon. Member: Three in a row.

An hon. Member: Filibuster!

An hon. Member: Why don’t you people on the government
side speak?

Mr. Deputy Speaker: Order, please. The hon. member for
Carleton-Charlotte has the floor.

Mr. McCain: Mr. Speaker, if we on this side of the House
had not seen a member detained or discouraged from rising to
speak on this subject, l would not have the pleasure of being
on my feet now.

l submit to you, as I think will become evident from many of
the speeches in this debate, that those who are so avidly
following the course of self-destruction of this nation proposed
by this government have rightly and properly shown by their
interjections—as they have just now—that perhaps there was
some excuse after all for the Prime Minister (Mr. Trudeau)
when, in a petulant mood, he stated that backbenchers are
nobodies. If they want to prove that they are somebodies, this
would be a great time to do it.

As has been pointed out by my colleagues on many occa-
sions, this is indeed an historic debate and one in which, in a
way, I find no great pleasure in participating. l think it implies
founded or we may be laying the foundation of its destruction.
This is a debate on a resolution that has the potential to alter
the face of this country like no other before it. I believe that if
this resolution is accepted in its present form it will change the
shape of federalism as it has existed historically and that it
may not be accepted as a favourable change.

I think it would be valuable to spend some time examining
the force of federalism over the last century, because if this is
to be called an historic debate, then, l say, history should play
a part in the determination of its climax. The precedents set by
precedents, should not be overlooked yet I submit that this
motion could not have been presented had those precedents
been given consideration by the government.

The good of the proposed nation as a whole was the primary
objective of those who gave this nation earliest consider-
ation. Although these men had differences, they put those
differences behind them and proposed a union that would be
mutually beneficial to all parties concerned. This sense of
co-operation can perhaps be best summed up in a report,
carried in the Saint John Morning Telegraph on September 9,
1864, which read as follows:

The leading argument advanced by the Canadian delegation may be expressed in
a few words—there are three elements requisite to national prosperity—territo-
ry, population and commerce. We have the first two . . .we want . . .your
commercial advantage. We have territory, we have population—we offer them to
you. We ask in return an outlet to the ocean—your maritime facilities. Two of
the essentials in a country’s prosperity are ours, one is yours. Isolated and apart
our progress must only be slow at best. United and combined we have all the
elements within ourselves ofcommercial, social and political progress.

What could be more applicable to Canada than that latter
statement, Mr. Speaker? There was a deep understanding of
the spirit of co-operation. I repeat the words “isolated and
apart our progress must only be slow at best.” Together we
have all the elements of progress. Continuance of isolation in
those days, that is, preservation of regional jealousies and
unwillingness to compromise, would have meant that Canada
as we know it today would never have existed. Jose Howe, a
chief opponent of Confederation realized the need for agree-
ment and a sense of fair play when he said:

If an honest, practicable scheme of union can be arranged, let it be printed—and
when it has been aired in all the provinces. . . They will sincerely support the
union. If tricked or bullied out of what they highly value, they will never be
content.

I suggest that hon. members opposite look at the words of
Mr. Howe whom history books identify as one of theirs. If
tricked or bullied—I emphasize especially that word “bullied”,
they will never be content. It seems obvious to me that the
government has found itself unable to arrange an honest
practicable scheme for bringing home the constitution and has
chosen to bully the provinces into accepting those things which
they oppose. They will also have the opportunity, some day in
the future, by way of their proposed referendum in section 42,
to trick the provinces out of what is rightly theirs. To them, I
say Joseph Howe was absolutely right when he said that this
sort of policy would create incurable dissension.

So we see that compromise was the theme of the day and
eventually it led to confederation. But the compromise did not
stop there, for if it had we would never have survived as a
country to see this day. No, this sense of co-operation and
willingness to make certain concessions on behalf of many
people is the underlying principle that has allowed Canada to
become what it is today—the largest country in the world
operating within the structures of co-operative federalism. This
has come about because leaders of government have, over the
last 100 years, chosen to pursue the ideals set out in that
original agreement, those of co-operation, concession, recon-
ciliation of differences and a spirit of unity in working toward
a common goal—a Canada they love.

I think it might be wise to spend a few minutes examining
some of the examples that have occurred over the past 100
years to illustrate the points I have just set forth. Many
amendments to the British North America Act have been
brought about over the years. I will come to those shortly.
First, though, let us examine some of the lines of thought
developed over a period of years with respect toward the union
of the British North American provinces. In 1888 in an
editorial in the Toronto Globe, the following philosophy was
extended:

The provinces party to the bargain, were, at the time of the compact,
independent nations in the sense that they enjoyed self-government subject to the
Imperial vcto upon their legislation, to the Imperial appointment of the Governor
General and to the Queen’s command of the forces, The dominion was the
creation of the provinces, or in other words, was created by the British
parliament at the request of the provinces. The dominion, being nonexistent at
the time the bargain was made, was plainly not a party to the bargain. It cannot
then be a party to the revision of the bargain.

Bear in mind this was in 1880 when already there were some
pressures for changes in the bargaining procedures. Although
this idea may be somewhat extreme in its exclusion of the
central government from the amending process, it does bear
out a valuable thesis, that the provinces were the creators of
the federal government and therefore must play a vital role in
any revision of the original pact. I submit that that is certainly
not the case today. One year later a former prime minister, the
Right Hon. Wilfrid Laurier, recognized the vital sense of
agreement that must pervade any discussion on the topic of
federalism when he said:

The only means of maintaining confederation is to recognize that, within its
sphere assigned to it by the constitution, each province is as independent of
control by the federal Parliament as the latter is from control by the provincial
legislatures.

This perhaps may be the best assessment of that tenuous
fine line that defines our system of government. Each of the 11
governments is independent of the other within the framework
of the original agreement. What actually lies at the very heart
of Mr. Laurier’s statement and is most important in any
interpretation of that statement, is that no government should
act unilaterally to overrule the other. Once again, the spirit of
co-operation is emphasized as being essential in this assess-
ment of confederation. Mr. Laurier was much more forceful in
his comment on the distribution of powers when he wrote to
Lomer Gouin, a member of the Quebec legislative assembly in
1918. In that letter he said:

To give to the central government, which is drawn from the majority race and
the majority religion, the authority to interfere in thejurisdiclion assigned to the
provinces, is to destroy the legislative independence of the provinces and to make
of it a snare and a mockery.

Just what is the hon. gentleman saying? He is asserting that
any attempt by the central government to move into provincial
jurisdiction such as is proposed to this House presently is to
make the authority of the provinces a mockery and essentially
to destroy them as a voice of government as originally set out
in the British North America Act. It would seem to me that
there is no better appraisal of the outcome of the passage of
this proposed resolution than that delivered by Mr. Laurier
over 60 years ago. Let me quote from another authority:

Federalism is by its very essence a compromise and a pact. lt is a compromise
in the sense that when national consensus on all things is not desirable or cannot
readily obtain, the area of consensus is reduced in order that consensus on some
things may be reached. lt is a pact or quasi-treaty, in the sense that the terms of
that compromise cannot be changed unilaterally, This is not to say that the
terms are fixed forever, but only that in changing them, every effort must be
made not to destroy the consensus on which the federated nation rests.

That was a quote from the great man himself, the Prime
Minister. This of course was his philosophy prior to his rise to
power and his attempts to lead Canada down the garden path
to a unitary state. It was back in 1964 that the right hon.
gentleman delivered a paper to a conference of Canadian law
teachers and political scientists whom he was no doubt trying
to impress with his wise assessment of the Canadian govern-
mental system.

I must say there are very few times that I find myself in
agreement with the Prime Minister, but I find it very easy to
agree with him on that statement. I believe, though, that every
effort has not been made by the present government to pre-
serve the vital consensus upon which the federated nation rests,
if I may borrow the words of the right hon. gentleman. It is
fine to say all of these things, but unless such sentiments as
they convey are put into practice they are of little value.

For the next few minutes, I would like to examine some of
the actions of various men throughout history which do, in
fact, embody the philosophies I have just cited. First let us
look at the example of 1907 when an amendment was proposed
with regard to the federal subsidies paid to the provinces. It is
of little relevance to this debate to spend any time on the
amounts proposed or the amounts that had been paid in the
past. It is Sufficient to realize that all parties acknowledged the
need to update the system under which such subsidies were
administered. The issue had been discussed at a federal-pro-
vincial conference convened solely for the purpose of that
discussion. It was there, with a provincial premier as the
chairman of the conference, I might add, that agreement was
reached between the federal government and all provinces save
British Columbia as to how the provisions for subsidies should
be changed. British Columbia’s opposition was later taken into
consideration and some changes were made to accommodate
that province. It was Wilfrid Laurier, who was prime minister
of the day, and his wisdom, which I noted earlier, which
prevailed. He again reiterated his philosophy in the House of
Commons in 1907 by saying:

Confederation is a compact, made originally by four provinces but adhered to
by all the nine provinces who have entered it, and I submit to the judgment of
this House and to the best consideration of its members, that this compact
should not be lightly altered.

That is so true. The compact should not be lightly altered
and it was not altered by Mr. Laurier. He managed to reach a
consensus with the parties concerned and then and only then
did he submit the proposed change to the British Parliament
for approval. However, as I mentioned earlier, the government
of British Columbia was not completely satisfied with the deal
which was proposed so it petitioned the British government
asking them to change the wording of the amendment. This
was done because, as Winston Churchill put it in a speech to
the British Parliament, “I would be very sorry if it were
thought that the action which His Majesty’s government had
decided to take meant that they had decided to establish as a
precedent that whenever there is a difference on a constitution-
al question between the federal government and the provinces,
the Imperial government would always be prepared to accept
the federal point of view as against the provincial.” He did not
want it understood in Canada that the Imperial government
would let the child of the provinces, the federal government, be
the dominant master of the government of the United King-
dom. That was his position. The provinces should prevail,
consensus should be reached.

That is an opinion to be highly regarded and a precedent to
be taken seriously. And it is in no way one that is buried deep
in the volumes of history. The Daily Telegraph of London just
a couple of weeks ago made the assertion that Mr. Churchill’s
view of such a situation should still apply, that is, that the
British Parliament is under no obligation to accept the federal
view as the final word regardless of threatening statements
made by the Secretary of State for External Affairs (Mr.
MacGuigan) and the Minister of State for Science and Tech-
nology (Mr. Roberts). On the other hand, it is well within
their rights to heed the voices of the provincial governments in
this current struggle. Also I might add that they are well
aware of the differences between the federal and provincial
governments as evidenced by statements in the press such as
the one I have just noted and the comments made by some
members of the British parliament. These men seem to be in
no way intimidated by the threats of the dynamic duo.

The second example which I feel deserves mention took
place in 1940. It is one that I believe establishes a rather
valuable precedent with regard to the matter currently before
this House. In 1935 the government of the then prime minis-
ter, the Right Hon. R. B. Bennett, enacted legislation to
establish unemployment insurance in Canada. The government
of the day believed it to be within its jurisdiction to enact such
legislation and they had been advised by their counsel to that
effect. The opposition, under Mr. Mackenzie King, had
demanded a referral to the Supreme Court for its opinion on
the validity of such legislation. However, an election was
called before such action could be taken. When the new
Parliament took office—and I ask members on the other side
to note this-under Mr. Mackenzie King the legislation was
indeed referred to the Supreme Court which ruled that it was
ultra vires of Parliament. An appeal was then launched before
the Privy Council, at that time the highest authority on such
matters. The Privy Council handed down its decision in 1936
which read in part as follows:

—Dominion legislation, even though it deals with dominion property-
I ask hon. members to take note of the next phrase—

—may yet be so framed as to invade civil rights within the province, or encroach
upon the classes of subjects which are reserved to provincial competence. If on
the true view of the legislation it is found that in reality in pith and substance the
legislation invades civil rights within the province, or in respect of other classes
or subjects otherwise encroaches upon the provincial field, the legislation will be
invalid. To hold otherwise would afford the dominion an easy passage into the
provincial domain.

This is precisely what is going on. In the manipulative
fashion in which this matter has been presented to us, we may
have no access to the courts. There may be no recoursefor
provinces or individuals, and I submit that we are, at least in a
democratic country, entitled to access to the courts. If this is
denied to provinces and individuals of this country, what value
is any entrenched bill of rights for any citizen, any province,
any yet unborn Canadian? There is no confidence in this.

Some hon. Members: Hear, hear!

Mr. McCain: This ruling obviously left the Mackenzie King
administration only one course if it wished to enact legislation
on unemployment insurance. It had to amend the constitution.
This was the route that was followed over a period of three
years. Beginning in 1937 Mr. King communicated with the
provinces to determine their feeling on the proposed amend-
ment to the constitution. In doing so he discovered that not all
provinces were in accord with the federal position. Alberta,
under a Social Credit government, New Brunswick, under a
Liberal government and Quebec, under a Union Nationale
government, all declined to agree to the proposal. It was at this
point that Mr. Mackenzie King could have adopted the atti-
tude of the present government, but he was a wiser man. He
could have gone ahead with the amendment without full
provincial consent. However, he chose to wait until he had full
provincial approval before proceeding. He elaborated on this
attitude in the House on more than one occasion. At one point
in 1938 he was asked when the legislation providing for the
amendment would be brought before the House. He answered
that it would be done as soon as there was consent—the sooner
the better. He had an element of impatience which seems to
prevail today but, on the other hand, he had the patience to see
it through. He went on to say:

If it cannot be brought in as a result of co-operative effort between the provinces
and the dominion, I fail to see how else it can be done. That is the one and only
method.

Later in the year, the Right Hon, Mackenzie King com-
mented thus:

We do not want to appear, let alone in reality. to seek in any way to coerce any
province of the dominion.

Here was a Liberal prime minister seeking to amend the
constitution but clearly unwilling to pursue such an amend-
ment without unanimous support of the provinces.

Eventually, in 1940, full support of the proposed amendment
was achieved and a resolution calling on the King to lay before
the British parliament the bill containing the proposed amend-
ment was passed by both Houses of Parliament in Canada.
The justice minister of the day, Ernest Lapointe, made special
note of the support for the resolution which he introduced. He
said, “Always we have tried to get the approval of the prov-
inces to an amendment of this kind”. Mackenzie King himself
said, “The difficult but most necessary part of the whole
business was to get the consent of the provinces.” I think the
words “most necessary” are certainly the important ones in
that passage. The right hon. gentleman realized that constitu-
tional amendments required consent of the provinces, that the
federal government is in fact the child of the provinces, that
the provinces are not the serfs of the central government.
Where is the wisdom of such a man as he today? Besides
Mr. Mackenzie King and Mr. Laurier there was also Mr. St.
Laurent, Mr. Diefenbaker and Mr. Pearson, all of whom
sought constitutional change only after a consensus had been
reached with the provinces. Mackenzie King also realized that
consent could not be achieved on a broad range of issues. He
stated that success had rested on the fact that the provinces
had only been asked to agree to an amendment confined to one
topic. Again, to quote:

—the circumstances which enabled us to get the approval of all the provinces
was the fact that we were asking for only one amendment. May I say that if we
had ventured to go beyond we would probably have met with further objections
on the part of some, ifnot all the provinces.

This idea also seemed to prevail with Mr. Laurier in 1907.
Only an amendment on subsidies was sought. In 1951, with
Mr. St. Laurent, only an amendment on old age pension was
sought. In 1960, with Mr. Diefenbaker, only an amendment
with regard to the tenure of judges was sought. In 1964, with
Mr. Pearson, further amendment was sought to the Old Age
Pension Act, once again a single issue amendment with a
single subject. In each instance, consensus was achieved. The
nation retained its friendly relations, one province with
another, and each province with the central government. Here
are five clearcut examples, even precedents, of governments
seeking constitutional change with, and only with, consent of
the provinces.

The present government might ask how it was donei It
might also ask a further question of itself: why can we not do
it? I believe two elements provide the key: first, the spirit of
co-operation, of compromise, and, second, single issue amend-
ment which means going after only one amendment at a time.
I think it is safe to say that if the government had attempted
patriation with an amending formula it might not have got
into the struggle with the provinces in which it now finds itself.
But the sheer enormity of the goal, that is, to reach a unani-
mous decision on 12 issues, made it impossible to achieve. That
is what happened at the last meeting of the first ministers.

What did the government do when this route failed? Did it
see the light and try to come to terms on just one issue? No,
the government chose to throw aside 100 years of history,
history laden with that spirit of compromise and consensus. It
chose to throw that aside and act unilaterally, bringing in
those amendments which the government most desired. In
doing so, it has tried to wrap those elements of the amendment
which it knows would be most objectionable to the people in an
“academic gloss on real life, if I may be so bold as to borrow
the words of the Secretary of State for External Affairs that is
what he calls the British right to listen to the provinces; their
right not to accept immediately the position or demands of the
federal government. Those are the things he calls the academic
gloss on real life, things which in the past have proven crucial
to the process of constitutional change. Those are the things
that he and his government choose to slough off as mere
technicalities.

It is obvious that the government also wishes to avoid the
technicalities of this proposed resolution and prefers to wrap
them up in the appealing sugar-coated gloss of generalized
advertising campaigns and motherhood issues.

I for one, and I believe this is a position much supported on
this side of the House, find this whole matter repugnant. It
shows a high level of contempt for the lessons of history from
which we are supposed to draw our knowledge and on which
our basic government and system of justice have long survived
to the benefit of all Canadians. It would be unfair, however, to
accuse the present administration of being totally ignorant of
history. Rather it is aware only of that portion of the past
which facilitates its needs.

Mr. Deputy Speaker: Order, please.

Mr. McCain: May I call it ten o’clock?