Representation of the Government of Prince Edward Island, Canada to the Foreign Affairs Committee of the House of Commons, Parliament of the United Kingdom, Regarding BNA Acts

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28 NOVEMBER 1980

Honourable Members
of the
Foreign Affairs Committee
of the
United Kingdom
House of Commons:

The Government of the Province of Prince Edward Island,
Canada, is appreciative of the invitation from the House
of Commons Foreign Affairs Committee to make its views
known on the United Kingdom’s “legal and constitutional
responsibilities” regarding the British North America Acts.

Should it be that this submission to your Committee is
in imperfect form, or otherwise defective, it is hoped
that you will receive it nonetheless. Any imperfections
arise solely from our inexperience with your procedure
and not from any intention to slight the Committee.

In making this submission, Prince Edward Island is mindful
that your Committee will not concern itself with any
political considerations which continue to surround the
constitutional review exercise in Canada. It is sub—
mitted that the United Kingdom’s role as trustee of the
British North America Acts must be as unpleasant for
your country as it is unpleasant for Prince Edward Island
to oppose, in the forum of your Committee, a probable
course of action by the Government of Canada.

The comments which follow are in no sense a legal factum
on the subject matter before your Committee. Legal
opinion will doubtless be available to you from diverse
sources, including submissions from certain of our sister
Provinces. While associating ourselves with the more
formal arguments of the Provinces of Quebec, British
Columbia, Alberta and Newfoundland, it is Prince Edward
Island’s wish to leave one main impression with you.

It is in the context of the United Kingdom being a trustee
of the British North America Acts that Prince Edward Island
contends that the Government of Canada will breach a well—
established constitutional convention and ethic if it des-
patches a joint address of the Canadian Senate and Commons
which does not have the specific or tacit support of all
Canadian Provinces.

Prince Edward Island submits that all previous submissions
requesting amendments to the British North America Act,
1867, have, with insignificant exceptions, come to the
United Kingdom Parliament with Provincial support.

Of greater significance is the process, in Canada, which
led to the enactment of the Statute of Westminster.
Realizing the significance of what became Section 7 of
that statute, the Canadian Prime Minister of the day assured
that Provincial support for the proposal was not only under-
stood but was specifically included in the Joint Address
to the United Kingdom. Such was the background for the
Canadian response to the most significant alteration in the
constitutional framework of the self—governing Dominions.
It was both a commendable and sensible procedure which
we feel is as valid today as it was in 1931.

Having stated, in general terms, the process which Prince
Edward Island feels should precede any Joint Address from
Canada, some comment on the nature of the Canadian Federal
union is required.

Prince Edward Island rejects any suggestion of an “equality”
between our federal and provincial governments. The federal
government is the paramount of the two levels of Government
of Canada and, to a large extent, the embodiment of the
nation, particularly beyond the boundaries of Canada. This

paramountcy was intended by our Fathers of Confederation
and made manifest in various powers assigned to the
federal government, either specifically or by residue,
in the British North America Act, 1867.

But despite the general paramountcy of the federal
government, it must not be overlooked that sovereign
powers in specific areas of jurisdiction were also as-
signed to the provinces. And they are, indeed, “sovereign”
powers, undiminished by any power of the federal government
to oVer—ride their exercise. Provincial powers are
enumerated in Section 92 of the British North America Act,
1867, and their specific nature will be well known to your

Prince Edward Island’s concern for the process of consti-
tutional amendment would be much reduced if it was our
opinion that the proposals of our federal government were
likely to be confined solely to areas of federal juris-
diction. But constitutional proposals which involve
language and education rights and a national amending
formula are obvious intrusions into areas of provincial

Reverting to the concept of trusteeship suggested in an
earlier paragraph, it is submitted that the Parliament of
the United Kingdom should note that the Joint Address
which the Government of Canada now proposes be sent to
Westminster is not, in any sense, an amendment to the
British North America Act. Rather, it would terminate
the United Kingdom’s involvement in Canada’s constitutional

While Prince Edward Island supports—-and has encouraged—
the widespread desire in our country for a “Canadian”
constitution, its establishment must be preceded by a
significant measure of agreement between the two levels
of government in the areas of their responsibilities.
Unilateral action by our federal government which lacks
this significant measure of provincial support will, we
suggest, impose an unconscionable strain on the trustee-
ship of the United Kingdom.

As members of the Committee will be aware, numerous of
the Canadian Provinces have urged that the present pro-
posals of the Government of Canada be referred to the

Supreme Court of Canada for its opinion as to the
legality of including matters such as the Charter of
Rights in the proposed Joint Address without provincial
support. At an earlier time, this process was followed,
at the urging of the Provinces, to determine if the –
federal government could alter, unilaterally, the con-
stitution of the Senate. The decision [Reference re
Legislative Authority of Parliament to Alter or Replace
the Senate, (1979) 102 D.L.R. (3rd) 1 (S.C.C.)] was, of
course, an emphatic “no”. In its judgement on the Senate
Reference, the Supreme Court of Canada took particular
note of an earlier publication (White Paper) of the
Government of Canada entitled The Amendment of the Con-
stitution of Canada [Ottawa, Department of Justice, 1965]
which enumerated four general principles respecting amend-
ments. The Court included the four general principles in
its judgement, the fourth of which was:

“…. the Canadian Parliament will not request an amend-
ment directly affecting federal—provincial relationships
without prior consultation and agreement with the pro-
vinces. This principle did not emerge as early as others
but since 1907, and particularly since 1930, has gained
increasing recognition and acceptance.”

Lacking a reference to our Supreme Court, six Canadian
Provinces (Quebec, Manitoba, Newfoundland, British
Columbia, Alberta, and Prince Edward Island) have either
commenced or associated themselves with references to
the Superior Courts of Manitoba, Newfoundland and Quebec.
Argument in the Manitoba references has now commenced and
will commence in the remaining two courts early in 1981.

If asked our opinion as to the desirable course of action
for the United Kingdom to follow as regards the Canadian
“constitution”, Prince Edward Island would suggest, un-
hesitatingly, that some means be found to “patriate” the
British North America Acts in their present form with the
proviso that subsequent alteration of those Acts would
require the.unanimous consent of the federal and provincial
governments. Such a procedure would result in full
Canadian control of its constitutional instruments and
the attendant responsibility for resolution of constitu-
tional matters in Canada.

In conclusion, Prince Edward Island thanks the Foreign
Affairs Committee for this opportunity to present its
views on the British North America Acts. Respectfully,
we submit that the United Kingdom’s role is much more
than simply responding to a request from the Government
of Canada. Provincial concurrence, given the nature of
our federal state and of established convention, must be
an integral component of the constitutional process.

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