Document Information

Date: 1975-07-28
By: Gordon Robertson
Citation: Letter from Gordon Robertson to the Honourable Peter Lougheed (28 July 1975).
Other formats: Click here to view the original document (PDF).

PERSONAL AND CONFIDENTIAL

Secretary to the Cabinet
for Federal-Provincial Relations

Secrétaire du Cabinet
pour les relations fédérales-provinciales

July 28th, 1975.

My dear Premier:

When I met with you in
Edmonton on May 16th, you asked me to let you
know about the results of my discussions with the
Premiers I would be seeing thereafter, especially
Mr. Bourassa and Mr. Barrett. I had hoped to
be able to report to you well before this but it
is now apparent that I am not going to be able
to see Mr. Barrett until sometime in September.
This letter is, therefore, in the nature of an
interim and confidential report.

Since my meeting with you,
I have had sessions with six Premiers and I
shall be meeting with Premier Blakeney in Regina
on August 7th. As you had requested, I made
a point of telling Premier Bourassa of your
position and particularly about your desire
to have the provisions on the Supreme Court
included in any “package” that may be agreed
upon. Mr. Bourassa immediately perceived
that this would be quite important from his
point of view, in that it would provide a
degree of re-assurance about the position of
the Supreme Court which would be the Court of
ultimate jurisdiction for constitutional inter-
pretation. He told me that he too would favour
its inclusion. I have found the same reaction
on the part of the Premiers I have seen with the
exception of Premier Hatfield. I think you are
familiar with his position and there is nothing
new or surprising there.

Premier Bourassa, as expected,
stressed that it will be essential for him to have
some kind of “constitutional guarantees” for the

The Honourable Peter Lougheed,
Premier of Alberta,
Edmonton, Alberta.

Ottawa, Canada
K1A 0A3

“cultural security” of French Canada. We had some
discussion as to what the nature of these might
be but it was quite inconclusive and there will
have to be a further discussion with him at a fairly
early date when we have some kind of a formula as
a possible approach. I have tested the idea of
constitutional guarantees on an “in principle” basis
with the Premiers I have seen since my meeting with
Premier Bourassa and I think there is no insurmountable
objection, subject, very properly, to their
desire to examine a precise text.

Your second main point in talking
to me was the modification of the amending formula
with respect to the Western provinces. I have,
of course, had no chance to test Premier Barrett’s
reaction on this. So far as the other Premiers
I have seen are concerned, they all feel that this
is purely and simply a matter for the Western
provinces to settle.

I shall be in touch with you further
as soon as I have been able to see Premier Barrett.
As I have indicated, I do not think that will now be
before sometime in September.

I very much appreciated the time
that you made available to see me in the course of
my visit to Edmonton and also the excellent discussions
that I had with a number of your officials about
other matters while I was there.

Yours sincerely,

CONFIDENTIAL

August 8, 1975.

REGINA – August 7 1975

Present: Premier Blakeney; Ken Lysyk (Deputy Attorney
General), Bill Haney, R.G.R.

The meeting took place in the Premier’s
office from 11 to 12.20. I introduced the subject
with an outline of the interviews that I had had
with the various Premiers to that date. I then
invited Premier Blakeney to raise any questions on
which he would like to have further information and
said I would welcome hearing his views.

Discussion

Premier Blakeney had been well briefed
and made frequent reference to a memorandum that had
evidently been prepared for him by Ken Lysyk (who
had been on the staff of the Federal-Provincial
Relations Branch of the PCO during a part of the
period of the constitutional review). The main
points Premier Blakeney madewere the following:

1. The “patriation” exercise had a
low priority as far as his
government and Saskatchewan were concerned. He-
referred to Premier Thatcher having said that, if
Saskatchewan had one hundred priorities, constitutional
revision would be the one hundred and first. He said
the position was more or less the same so far as
“patriation” was concerned. That being so, he would
not welcome any pressure to try to complete the
exercise by the Olympics or by any other date in 1976.

Mr. Blakeney said that the fact of having
to go to London for constitutional change did not
cause him or his government any particular pain since
it seemed clear that we were still periodically
groping with the adjustment of a number of aspects
of our constitution. In addition, he felt that the
uncertainty of the present situation provided a
flexibility that would be reduced when the Victoria
amending formula was adopted. I demurred at this
and after discussion it became clear that what
Mr. Blakeney had in mind is not the quantum of
consent that is required in the new amending formula
but the fact that it makes it necessary for a
resolution of the Legislature to be secured in each
case. He felt that in many instances it would be
possible for a government to give assent if it could
act without provoking a legislative debate. It might
not be so easy under the new formula. He said that
he was not happy about things that increased our
constitutional rigidity nor was he happy about things
that added shackles to the capacity of the federal
government to act. In the course of this discussion,
I pointed out that under the “patriation” plan, in which
paragraphs 53, 54 and 55 of Part IX of Victoria would
not be implemented, the total situation with respect
to amendment would be more flexible than under the
Victoria proposal. Mr. Blakeney had not perceived
this point and he seemed to be in favour of the result.

2. The method of amendment

Mr. Blakeney said that he shared
Mr. Lougheed‘s desire to have the requirement for
the four Western provinces made parallel to that for
the Atlantic provinces. He clearly did not feel as
strongly on this point as Mr. Lougheed. He asked me
whether my interpretation of the formula was that an
amendment could be approved if three Western provinces
agreed. I said that was so (apparently Mr. Lougheed
had been given an interpretation – which Lysyk did
not share – that western approval had to be with the
definite inclusion of two provinces whose combined
population exceeded 50 per cent of the western
population). Mr. Lysyk then said that if Mr. Barrett
objected too much to the straight “Atlantic” formulation
possibly a compromise could be one in which western
consent could be given by two provinces with 50
per cent or more of the population or any three
provinces regardless of population. I said I would
keep this in mind in case of need in the course of
discussions.

Mr. Blakeney asked whether I had encountered
any objection to the veto for provinces that had had at any
time 25 per cent of the population of Canada. I said
it had come up in Halifax with reference to Ontario but
not with reference to Quebec. Mr. Blakeney said he was
a bit concerned at a provision which would retain a
veto perpetually for a province regardless of the
drop it might suffer in proportion of population.
He wondered if it would not be desirable to introduce
a “floor” of say 20 per cent below which the veto
would no longer be retained. I made two comments
in reply. In the first place, I said I thought
that any attempt to modify the formula in so basic
a way would mean that there would be no chance
whatever of achieving agreement on “patriation”.
Quebec would perceive that the “floor” would be
relevant only to Quebec and acceptance of the
formula would become impossible. Secondly, since
the “floor” would apply only to Quebec, it seemed to
me it would be quite unrealistic. I thought there
was no possibility of contemplating a situation in
which constitutional amendments of general interest
could be entered into without the agreement of
Quebec. Mr. Blakeney was impressed by both points
and said it was not a matter that he would press.

The third thing on the method of
amendment that he raised was the participation of
the Senate. He welcomed the reduction of its role
by the 90 day suspensive veto provision but he saw
no reason why the Senate should be involved at all.
Would anyone object if the formula were changed to
remove the Senate? I told him I did not know whether
any particular province would raise objection but
it would be a very wide departure both from the
Victoria formula and from the fundamentals of our
general legislative procedures. The matter was
dropped and I am not certain whether Mr. Blakeney
is likely to raise it again or not.

3. The Supreme Court

Mr. Blakeney thinks it would be desirable
to include Part IV in the package. He does not feel
as strongly as Mr. Lougheed and he raised the question
whether Part IV could not be made clearer than it now is.
I told him it had been the product of very difficult
negotiation and I was dubious whether anything clearer
or better was likely to emerge from a new effort.
There appeared to be two points Mr. Blakeney has in
mind: the ambiguity about the “appropriate province”
for consultation in specific cases and the fact that
there is no provision for a nominating council to
consider names that might be raised by an Attorney
General of a province.

4. Regional disparities

Mr. Blakeney said that he did not feel
as strongly as Messrs. Regan-Campbell-Hatfield about
the inclusion of Part VII of Victoria but on the
whole he thought it would be desirable to have it
inserted if there were going to be something on
constitutional guarantees for Quebec. He thought
that the provision on regional disparities could be
something in the preamble to the proclamation only,
Part IV in the operative part of the proclamation or
both.

5. Constitutional guarantees
Premier Blakeney said that he fully
understood the concern of Premier Bourassa about
the preservation of the French language and the
French culture. He had no objection in principle
to the inclusion of something that might be
appropriate to this effect. I outlined to him the
kind of thing that had been discussed. Mr. Blakeney
said that, while Saskatchewan would have no objection
in principle, it would be very concerned indeed about
the precise form and expression of the guarantees.
He said there had been a very great increase in the
consciousness of the “other” ethnic groups of their
identity and anything that seemed to say that Canada
was a bi-cultural country rather than a multi-cultural
one could cause great difficulty. He stressed the
fact that Saskatchewan is the only province in which
the majority of the population are of origins other
than English-speaking or French-speaking. I commented
that it was apparent that the greatest sensitivity
with respect to the form of the constitutional
guarantees was in Saskatchewan and New Brunswick both
of which had a demographic composition that was
different from that of the other seven “anglophone”
provinces. I said that we would almost certainly
be discussing a text or texts at an early point with
Premier Bourassa and that his points would be kept
very much in mind. Mr. Blakeney said that he thought
that, once that had occurred and once I had had my
discussion with Premier Bourassa, it might be best to
submit some overall text to the provincial governments
so that they might have time to study the whole thing
before further comments or reactions were sought.

R.G.R.

CONFIDENTIAL

August 8, 1975.

REGINA – August 7 1975

Present: Premier Blakeney; Ken Lysyk (Deputy Attorney
General), Bill Haney, R.G.R.

The meeting took place in the Premier’s
office from 11 to 12.20. I introduced the subject
with an outline of the interviews that I had had
with the various Premiers to that date. I then
invited Premier Blakeney to raise any questions on
which he would like to have further information and
said I would welcome hearing his views.

Discussion

Premier Blakeney had been well briefed
and made frequent reference to a memorandum that had
evidently been prepared for him by Ken Lysyk (who
had been on the staff of the Federal-Provincial
Relations Branch of the PCO during a part of the
period of the constitutional review). The main
points Premier Blakeney madewerethe following:

1. The “patriation” exercise had a
low priority as far as his
government and Saskatchewan were concerned. He
referred to Premier Thatcher having said that, if
Saskatchewan had one hundred priorities, constitutional
revision would be the one hundred and first. He said
the position was more or less the same so far as
“patriation” was concerned. That being so, he would
not welcome any pressure to try to complete the
exercise by the Olympics or by any other date in 1976.

Mr. Blakeney said that the fact of having
to go to London for constitutional change did not
cause him or his government any particular pain since
it seemed clear that we were still periodically
groping with the adjustment of a number of aspects
of our constitution. In addition, he felt that the
uncertainty of the present situation provided a
flexibility that would be reduced when the Victoria
amending formula was adopted. I demurred at this
and after discussion it became clear that what
Mr. Blakeney had in mind is not the quantum of
consent that is required in the new amending formula
but the fact that it makes it necessary for a
resolution of the Legislature to be secured in each
case. He felt that in many instances it would be
possible for a government to give assent if it could
act without provoking a legislative debate. It might
not be so easy under the new formula. He said that
he was not happy about things that increased our
constitutional rigidity nor was he happy about things
that added shackles to the capacity of the federal
government to act. In the course of this discussion,
I pointed out that under the “patriation” plan, in which
paragraphs 53, 54 and S5 of Part IX of Victoria would
not be implemented, the total situation with respect
to amendment would be more flexible than under the
Victoria proposal. Mr. Blakeney had not perceived
this point and he seemed to be in favour of the result.

2. The method of amendment

Mr. Blakeney said that he shared
Mr. Lougheed’s desire to have the requirement for
the four Western provinces made parallel to that for
the Atlantic provinces. He clearly did not feel as
strongly on this point as Mr. Lougheed. He asked me
whether my interpretation of the formula was that an
amendment could be approved if three Western provinces
agreed. I said that was so (apparently Mr. Lougheed
had been given an interpretation – which Lysyk did
not share – that western approval had to be with the
definite inclusion of two provinces whose combined
population exceeded 50 per cent of the western
population). Mr. Lysyk then said that if Mr. Barrett
objected too much to the straight “Atlantic” formulation
possibly a compromise could be one in which western
consent could be given by two provinces with 50
per cent or more of the population or any three
provinces regardless of population. I said I would
keep this in mind in case of need in the course of
discussions.

Mr. Blakeney asked whether I had encountered
any objection to the veto for provinces that had had at any
time 25 per cent of the population of Canada. I said
it had come up in Halifax with reference to Ontario but
not with reference to Quebec. Mr. Blakeney said he was
a bit concerned at a provision which would retain a
veto perpetually for a province regardless of the
drop it might suffer in proportion of population.
He wondered if it would not be desirable to introduce
a “floor” of say 20 per cent below which the veto
would no longer be retained. I made two comments
in reply. In the first place, I said I thought
that any attempt to modify the formula in so basic
a way would mean that there would be no chance
whatever of achieving agreement on “patriation”.
Quebec would perceive that the “floor” would be
relevant only to Quebec and acceptance of the
formula would become impossible. Secondly, since
the “floor” would apply only to Quebec, it seemed to
me it would be quite unrealistic. I thought there
was no possibility of contemplating a situation in
which constitutional amendments of general interest
could be entered into without the agreement of
Quebec. Mr. Blakeney was impressed by both points
and said it was not a matter that he would press.

The third thing on the method of
amendment that he raised was the participation of
the Senate. He welcomed the reduction of its role
by the 90 day suspensive veto provision but he saw
no reason why the Senate should be involved at all.
would anyone object if the formula were changed to
remove the Senate? I told him I did not know whether
any particular province would raise objection but
it would be a very wide departure both from the
Victoria formula and from the fundamentals of our
general legislative procedures. The matter was
dropped and I am not certain whether Mr. Blakeney
is likely to raise it again or not.

3. The Supreme Court

Mr. Blakeney thinks it would be desirable
to include Part IV in the package. He does not feel
as strongly as Mr. Lougheed and he raised,the question
whether Part IV could not be made clearer than it now is.
I told him it had been the product of very difficult
negotiation and I was dubious whether anything clearer
or better was likely to emerge from a new effort.
There appeared to be two points Mr. Blakeney has in
mind: the ambiguity about the “appropriate province”
for consultation in specific cases and the fact that
there is no provision for a nominating council to
consider names that might be raised by an Attorney
General of a province.

4. Regional disparities

Mr. Blakeney said that he did not feel
as strongly as Messrs. Regan-Campbell-Hatfield about
the inclusion of Part VII of Victoria but on the
whole he thought it would be desirable to have it
inserted if there were going to be something on
constitutional guarantees for Quebec. He thought
that the provision on regional disparities could be
something in the preamble to the proclamation only,
Part IV in the operative part of the proclamation or
both.

5. Constitutional guarantees

Premier Blakeney said that he fully
understood the concern of Premier Bourassa about
the preservation of the French language and the
French culture. He had no objection in principle
to the inclusion of something that might be
appropriate to this effect. I outlined to him the
kind of thing that had been discussed. Mr. Blakeney
said that, while Saskatchewan would have no objection
in principle, it would be very concerned indeed about
the precise form and expression of the guarantees.
He said there had been a very great increase in the
consciousness of the “other” ethnic groups of their
identity and anything that seemed to say that Canada
was a bi-cultural country rather than a multi-cultural
one could cause great difficulty. He stressed the
fact that Saskatchewan is the only province in which
the majority of the population are of origins other
than English-speaking or French-speaking. I commented
that it was apparent that the greatest sensitivity
with respect to the form of the constitutional
guarantees was in Saskatchewan and New Brunswick both
of which had a demographic composition that was
different from that of the other seven “anglophone”
provinces. I said that we would almost certainly
be discussing a text or texts at an early point with
Premier Bourassa and that his points would be kept
very much in mind. Mr. Blakeney said that he thought
that, once that had occurred and once I had had my
discussion with Premier Bourassa, it might be best to
submit some overall text to the provincial governments
so that they might have time to study the whole thing
before further comments or reactions were sought.

R.G.R.