Document Information

Date: 1980-10-16
By: Michael Kirby
Citation: Memorandum from Michael Kirby for the Prime Minister Re: Discussions with Saskatchewan Officials on Patriation Resolution (16 October 1980).
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October 16, 1980

MEMORANDUM FOR THE PRIME MINISTER

Re: Discussions with Saskatchewan Officials On Patriation Resolution

We met this afternoon with Saskatchewan officials to hear their comments on the Resolution. The following are the points they raised and possible responses we might make thereto if you agree.

Non Discrimination

^[agreed] Even though he had not raised it directly with you, officials stated that Premier Blakeney retains the concerns he expressed publicly last week that the non-discrimination clause entrenches provisions the implications of which we do not fully understand. I stated that the government will not withdraw the section. Officials recognized this but asked if we would accept changes to improve the wording of the clause. We could, if you agree, indicate that we would be willing to consider sympathetically any improvements to the Resolution which may be proposed to the joint-committee.

Equalization

^[agreed] With respect to the equalization provisions Saskatchewan prefers the “Saskatchewan-Manitoba” draft. At the same time officials clearly indicated this was not a major concern and Saskatchewan would not likely be taking any initiative with respect to it. I indicated that I did not think the federal government was unalterably wedded to the present wording although I explained why we had chosen the British Columbia draft.

National Referendum – Deadlock Breaking Mechanism

With respect to section 42 and the holding of a national referendum Saskatchewan wishes to see such procedure used only as a deadlock breaking mechanism. I indicated that I

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understood this to be the governments’ intention although the draft resolution did not clearly so provide. Saskatchewan officials suggested that instead of using a failed First Ministers’ conference as a triggering device, a referendum should be made contingent upon provincial legislatures failing to pass the appropriate resolutions approving an amendment. They envisage a two step process whereby Parliament would pass a resolution approving an amendment and then after a specified length of time (for example, one year) if the required provincial resolutions have not been passed Parliament could pass another resolution authorizing the holding of a referendum. There seems to be considerable merit in this proposal. It obviates the vagueness of trying to decide when a conference has “failed” and it allows a referendum to be held without the necessity of first holding a First Ministers’ conference. As it is a constructive suggestion, I would recommend that you agree to it, although we would, of course, want to take a careful look at details such as whether a one year time period is appropriate. An additional advantage of agreeing to this suggestion is that we would be adopting some wording suggested by Premier Blakeney.

^[Illegible] Officials also expressed the view that provinces as well as the federal government should have the right to initiate deadlock breaking referenda. I explained that such is not acceptable to the Federal Government.

Provincial Alternative – Required Agreements Too Onerous

Officials reported that in Premier Blakeney’s opinion the requirement of agreement by 8 provinces having 80% of the population for a provincial alternative to the Victoria amending formula will ensure that no provincial alternative will be forthcoming. A requirement of 7 provinces having 50% of the population was suggested. When it was pointed out, however, that this would allow the English speaking provinces to deny Quebec a veto the suggestion was abandoned. It was then proposed that provincial agreement of the- same order as that required under the Victoria formula might replace the 8 and 80% requirement. This is a proposal that seems worth considering. It is more flexible than the 8 and 80% requirement while ensuring Quebec a veto. I would suggest that we agree to listen sympathetically to whatever alternate proposals they might suggest.

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Provincial Alternative – Time Limit

The two year time period within which a referendum must be held after a provincial alternative is filed was seen as too long. In Saskatchewan’s view it gives provinces too much time during which they can opt out. Six months was suggested instead. It is not immediately obvious that the time limit needs to be changed. It is a maximum time limit; the referendum could in fact be held within a much shorter time. As drafted it allows for flexibility to deal with unexpected events such as a dissolution of Parliament.

Provincial Alternative to Include Alteration to Section 42 (National Referendum)?

^{[No argument]} Saskatchewan would like the provisions for a replacement formula to allow for a provincial alternative which might exclude the possibility of a national referendum. Officials argue that the people should be able to choose by referendum whether they want a referendum mechanism as part of the final amending formula. The difficulty is that the referendum approval required for a replacement formula is a national majority while that under section 42 requires regional as well as national majorities. Accordingly the Saskatchewan logic does not quite follow. If you agree, I would indicate that we would not find such a change acceptable.

Rules for Referenda

^{[Details to be [illegible]]} It was suggested that instead of authorizing Parliament to make rules for the holding of referenda this authority could be given to an independent commission. Officials did not have details of their proposal available but we understand that what they have in mind is a commission of three members; one appointed by the federal government; one chosen by majority vote of the provincial governments, and a third chosen by the first two but in the case of deadlock chosen by the Chief Justice of Canada. This suggestion seems to have a lot of merit. The present provision is attracting criticism because it puts in the hands of Parliament authority to unilaterally set the rules. It is extremely important that any referendum be perceived as being fair. Accordingly I would suggest that we might agree to this proposal subject to the details being worked out.

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^{[Administrative]}

^{[[illegible] agreement on [illegible]]}

^{[Need follow-up on paper]}

^{[[Illegible] that this will take [illegible]]}

^{[agreed on everything except “[illegible]” of BED]}

Resources

Saskatchewan officials made it quite clear that they had no mandate to bargain but would be reporting to Premier Blakeney tonight on the draft text and would report back to us tomorrow morning. They noted some of Saskatchewan’s traditional concerns such as the lack of a clause on international trade. Nevertheless, attention focussed mainly on two issues: the anti-discrimination clause and what was meant by administrative arrangements.

Saskatchewan officials are not happy with the antidiscrimination clause seeing some of the same difficulties with it which we saw. They are of the view that this is something which is negotiable as far as Mr. Broadbent is concerned. Accordingly we discussed a copy of an alternative draft, essentially the same as that discussed with you yesterday. Saskatchewan officials will consider it overnight. If our alternative is acceptable to both Saskatchewan and Mr. Broadbent I would suggest it replace the present draft. (Copies of the two drafts are attached.)

With respect to administrative arrangements, I indicated that work was now being done on this by the Department of Energy Mines and Resources but that it was a bit too early for us to be very precise. We anticipate that E.M.R. will have some proposals shortly.

Michael Kirby

“PRESENT DRAFT“

Export from provinces of resources

(3) In each province the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

“ALTERNATIVE FEDERAL DRAFT“

Export from provinces

(3) In each province the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for

(a) prices for production sold for export to another part of Canada that are different from prices authorized or provided for production not sold for export from the province; or

(b) the allocation of production sold for export to another part of Canada on a basis that is different from that authorized or provided for production not sold for export from the province, unless the authorization or provision is justifiable and necessary for the purpose of ensuring an adequate supply of the production for the residents of the province.