Document Information

Date: 1980-10-17
By: Michael Kirby
Citation: Memorandum from Michael Kirby for the Prime Minister Re Discussions with Saskatchewan Officials on Patriation Resolution (17 October 1980).
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CONFIDENTIAL

October 17, 1980.

^{[[illegible] to Kirby]}

MEMORANDUM FOR THE PRIME MINISTER

Re discussions with Saskatchewan officials on Patriation Resolution

After meeting with you this morning we met with Saskatchewan officials. A summary of those discussions follows.

Non-discrimination Clause

I indicated that we were sympathetic to considering any changes Saskatchewan might make to the wording of the clause to improve it which was acceptable to the joint committee. While Saskatchewan would obviously prefer to see the section dropped they realize this is as far as we will go and this issue seems settled.

Equalization

I indicated again that we are not wedded to the present draft and it was agreed that Saskatchewan officials would work with federal Justice and Finance officials to work out an alternative draft on the basis of either the Quebec or the Manitoba-Saskatchewan drafts which were before the CCMC. We have some concerns about the use of the phrase “reasonably comparable levels of taxation” in the Manitoba-Saskatchewan draft (as does Alberta) but would be prepared to accept the Quebec draft which was supported by everybody except B.C. at the CCMC. I will report back to you after the officials meet sometime next week or the week after.

National Referendum – Deadlock Breaking Mechanism

I indicated that we were attracted to their suggestion that a referendum be called on the failure of

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provincial Legislatures to pass the appropriate resolutions for constitutional amendment. I indicated that we did not like a process which requires that Parliament deal with the same issue twice, once to approve an amendment and a subsequent time a year later to launch a referendum on the amendment. We would see the mechanism working so that Parliament’s resolution approving a proposed amendment also authorized, but did not compel, the holding of a referendum. Sasks1tchewan officials are to discuss this with Premier Blakeney.

Concern was expressed that once Parliament passed a resolution for amendment the power to call a referendum on that issue should not last for an indefinite period of time in the future. Accordingly, Premier Blakeney suggests a three year time limit. He also suggests that allowing the provinces only one year to pass resolutions concurring in a proposed amendment is too short,  and that they should be given 18 months. Thus under this scheme, Parliament would pass a resolution; the provinces would then have 18 months to pass concurring resolutions; and the federal government would have a further 18 months within which to call a referendum, if it wished. I agreed to seek your views on this proposal.

^{[I would [illegible] this to be [illegible], 12 months [illegible].]}

Saskatchewan officials reiterated their position that provincial governments should have the right to call deadlock breaking referenda. They proposed as a fall back position that in the ca.se where the required provincial resolutions for an amendment had been passed and the federal government did not agree to the proposal, (i.e. all the conditions of the Victoria formula had been met, except for the federal government approving the amendment) Parliament be required to decide whether it would approve the proposed amendment. and, if not, whether a  national referendum should be held. I indicated that I would raise this with you.

^{[The answer should be [illegible]. If we accept the fall-back [illegible] will be [illegible] to its advanced [illegible]. It is [illegible] when [illegible] whole nation [illegible] Parliament wants anything + its provinces don’t [illegible] of a [illegible] of several provinces [illegible] our amendments but [illegible] the whole nation ([illegible] Parliament) why [illegible] the whole nation by referendum? A general election is [illegible] Parliament is [illegible] reflecting the [illegible].]}

This proposal has some advantages in that it would allow Parliament to overrule an obstructionist federal government. On the other hand, it would force a debate in Parliament on an amendment (e.g. on offshore resources) which could prove politically embarrassing to the government. Nevertheless, if you want some small element of reciprocity in the amending formula, without giving the provinces the right to call a referendum, then this modification in our existing proposal has a lot to recommend it. Moreover, in the case of a majority federal government it would result

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in the same outcome (i.e. non passage of the amendment) as this clause were not in the constitution and the process stayed as now proposed.

Final Amending Formula – Alternative to Victoria

^{[You could get a provincial consensus on [illegible] + 90% + if opposition parties were to accept it, [illegible] could accept [illegible] + delete [illegible] of Part III [illegible] achievement. No [illegible] getting Blakeney [illegible]]}

Premier Blakeney prefers as the final amending formula one that would require the consent of 7 provinces having 8% of the population which must include at least 2 Atlantic and 2 ^[illegible] Maritime provinces. He is concerned about any formula which gives a perpetual veto to Quebec and the reaction to such a formula in Western Canada. I indicated that such a formula was not unattractive as far as we are concerned but that we would not be prepared to introduce an amendment of this nature in committee. At the same time I indicated that it was a proposal that could be adopted as a replacement for Victoria by using the procedure in place during the two year interim period.

Rules for Referenda

I indicated that we found their proposal of an independent rule making commission for national referenda both attractive and acceptable ^{[[illegible] very complicated [illegible]. I doubt we can [illegible].]} if appropriate details could be developed. It was agreed that federal Justice officials could work with Saskatchewan officials to develop a draft.

Provincial Alternative to Victoria Formula

Officials reiterated the view that the provisions for a replacement formula should allow for a provincial alternative ^{which might exclude the possibility [no way!]} of a national referendum, and that the two year time period given to Parliament for the holding of a referendum was too long. I explained again our position. These would not appear to be major outstanding issues. Saskatchewan will accept our view although Blakeney may raise this issue with you when you next speak to him.

Resources

Saskatchewan prefers the anti-discrimination clause presently in the CCMC draft and sees political advantages to staying with it, rather than adopting our alternative suggestion. Accordingly this issue is settled since we had previously agreed with the N.D.P. to accept that version. I have so informed Mr. Broadbent’s office.

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Accordingly he will be contacting you on Tuesday to decide when and how the public will be made aware of your agreement with him. Apparently he still prefers an exchange of letters which would then be made public. ^{[Could you [illegible] draft + words on a [illegible]?]}

^[bah!] Officials pressed for details of the “administrative or legislative” arrangements that might be put in place. It is clear they expect an exchange of letters between yourself and Premier Blakeney within the next few weeks setting out the principles of such arrangement. Officials are proposing federal legislation which would provide for a delegation of administrative authority to a Board or Commission (presumably provincially controlled) which would regulate the export of resources from the province. They envisage that the authority of this Board would be circumscribed by a number of conditions, for example, that it could not exercise its powers :so as to interfere with Canada’s international obligations. Officials clearly think you intend to move towards implementation of some type of administrative or legislative scheme in the near future and do not see it as an item for the next round of constitutional negotiations. Officials are of the view that without a fairly precise agreement on the details of an administrative arrangement Saskatchewan’s consent will not be forthcoming.

^{[What are you talking about? This is not to be a “[illegible]” section. Only an amendment on [illegible] taxes + [illegible]]} Saskatchewan is still holding out for additional changes on the resources draft particularly the inclusion in subsection (2) of additional wording to indicate that the exclusive legislative authority given to provincial Legislatures by that section “shall not be invalid merely because part or all of the product may enter interprovincial or international trade”. (see attached CCMC draft of the section.) These words were put in the CCMC draft at the behest of Saskatchewan: we never agreed to them. Accordingly they were underlined in that draft as something not agreed to and they were not incorporated by Marc Eliesen in the N.D.P. draft.

Our reason for not agreeing to this wording is that it might bring in by the back door extended provincial jurisdiction over international trade and commerce, which is what we have been continually rejecting in another form. in addition the authority given to provincial Legislatures in clause (2) is an exclusive power so that any addition to provincial authority thereby could be interpreted s a subtraction from federal authority. In particular it should

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be noted that “management” and “rat of primary production” in clause (2) could be interpreted very broadly and we would not be able to override provincial regulation affecting exports by paramount provincial legislation.

Saskatchewan argues that clause (5) which gives provinces authority over indirect taxation includes a similar provision and that one should be consistent and add such a provision to clause (2). Clause. (5) however, does not give provincial Legislatures exclusive Jurisdiction; it is a concurrent power. Officials indicated that without such a clause or one that reads

“whether or not such production is exported in whole or in part from the province”

^{[to hell with them!]} Saskatchewan is not prepared to support the resources amendment and the resolution as a whole. I indicated that this was an issue that could only be settled between you and Premier Blakeney.

This is the main outstanding difference between ourselves and Saskatchewan. However, it does not affect our agreement with the N.D.P.

Premier Blakeney will likely also raise again his concern to have Parliament’s paramount trade and commerce jurisdiction restricted to cases where Parliament declares the exercise of that jurisdiction to be in the compelling national interest.

Timing

Saskatchewan officials indicated that they preferred that you not call Premier Blakeney to try to settle the outstanding issues until some further work had been done on the details of the changes on which we have agreed. I indicated that it was essential to have an amendment ready for committee almost as soon as it starts to meet since the committee should be given as much time as possible to consider the amendment. Accordingly I would suggest you phone Premier Blakeney early next week to try to settle with him the outstanding issue on resources.

Premier Blakeney is playing a bargaining game. I have found out that his Caucus and Cabinet have given him a blank cheque to make a deal – they will support any deal he makes. His officials say he is in no rush to make a deal. He thinks Broadbent is foolish to agree so quickly and he will probably try to discourage Broadbent from agreeing with us next week. We must et Broadbent tied down right away before Blakeney persuades him to abandon his support for the resolution. To expedite this, I will meet with Broadbent’s officials at 9 am Monday to go over their draft of a letter

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from Broadbent to You.

What Blakeney is doing to stall for time is insisting that every detail of every amendment be worked out before he comes on board publicly. Frankly, this worries me. I suspect his real plan may be to keep stalling and then find a pretext for backing off at the last minute. This is why I think you should telephone him soon rather than later to see where he stands on the key questions of the wording of section 2 of the resources draft and the timing of federal legislation on international trade in resources. These are the two issues which his officials claim he must have if he is to come on board. Note, however, that even if these agreements are reached, he may still insist on seeing precise wording of the amendment linking sections 41 and 42 and a possible equalization amendment, etc. ^{[[illegible] this [illegible] was not event [illegible] why are you [illegible] if at all? With who’s [sic] authority?]}

Michael J.L. Kirby