Memorandum from R.G. Robertson [Discussions with the Premiers on “patriation” of the constitution] to the Prime Minister (16 June 1975)

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Date: 1975-06-16
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to the Prime Minister (16 June 1975).
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*This document contains handwritten notes. Please see PDF to view them.*


June 16, 1975.


Discussions with the Premiers on
“patriation” of the constitution

Last week I saw Premier Moores of Newfoundland and Premier Regan of Nova Scotia about the proposal for “patriation” of the constitution. The main points in the discussions are as follows:

A. Premier Moores

As Mr. Moores told you at your dinner on April 9, Newfoundland has no problems with the proposal for “patriation” on the basis of the Victoria amending formula. If the part relating to the western provinces is changed, as Mr. Lougheed wishes, that is entirely satisfactory to Mr. Moores: he regards it as a matter for those provinces to decide.

Mr. Moores would favour inclusion of Part IV of Victoria on the Supreme Court. He commented that there has never been a Supreme Court Judge from Newfoundland and he hopes that this may be possible before too long.

He has no difficulties in principle with Mr. Bourassa’s desire for “constitutional guarantees” for cultural security. He will want to look at the actual text that may be proposed but he says his government will be sympathetic to them.

Mr. Moores thinks that approval of a resolution at the next session of the Newfoundland Legislature would present no difficulty.

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B. Premier Regan

Mr. Regan favours trying to get “patriation” on the basis of the Victoria amending formula. He too would favour inclusion of Part IV on the Supreme Court. He has some slight concern about reopening the amending formula in the way Mr. Lougheed has requested because he thinks that any change in the formula may reawaken criticism about giving a veto to Ontario. (Apparently the veto for Quebec is understood and accepted in Nova Scotia as being necessary for cultural reasons.) However, on reflection, he decided that there would not be much if any difficult with Mr. Lougheed’s proposed change.

On Mr. Bourassa’s “constitutional guarantees”, Nova Scotia will want to look at the precise text but says they will “do their best” to go along. However, if there is something on “cultural security”, Nova Scotia will also want something on regional disparities – probably the part VII that was agreed to at Victoria.

Mr. Regan referred to discussions during the constitutional review about possible provision for some appointments to the Senate being made by the provinces. He understands that this was not a part of the Victoria Charter but he has the impression that at some time you indicated that a change in the method of appointment to the Senate might be considered when the amending formula had been agreed upon. He wanted me to raise this for your consideration although he emphasized that he was not bringing it up as a matter to be included in the package or as a condition for Nova Scotia’s agreement on the package.

Mr. Regan asked whether you had in contemplation a conference of First Ministers at some point in time to discuss or to agree on the precise plans for “patriation” of the constitution. I told him that this was an open question and that it might well depend on how much progress would be achieved on the basis of bilateral discussions such as those I was conducting with him. It is clear that Mr. Regan is not pressing for a conference. Indeed I got the impression that he thinks that there is a greater likelihood of achieving success through bilateral

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discussions and through communication of texts as they are developed than through a conference.

The Nova Scotia officials, for the first time in the six visits I have now made to the provinces, raised the question of our omitting Articles 53, 54 and 55 from Part IX (the amending formula). They realize that through this omission we are leaving under the exclusive jurisdiction of Parliament through section 91(1) certain things that would have been transferred to the new amending formula — things relating to the Senate, powers of the Senate, the principle of proportional representation as between the provinces, etc. I said we were aware of that but that this was the consequence of the decision to try to achieve “patriation” without “breaking the shell” of the B.N.A. Act. I said that, if we started amending that Act in any way.there was no possibility of avoiding other pressures for amendment — whether in the distribution of powers, in the provision for disallowance, reservation or a dozen other items. They appreciated the point but said they will certainly be discussing the matter with Premier Regan when they have a chance. (That chance had apparently not presented itself up to that point.)

Altogether, the “patriation” proposal still remains quite possible but it is getting a bit more complicated with each discussion.


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