Document Information

Date: 1981-12-02
By: Saskatchewan (Legislative Assembly)
Citation: Saskatchewan, Legislative Assembly, Debates and Proceedings of the Legislative Assembly of Saskatchewan, 19th Leg, 4th Sess, 1981 at 133-136.
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SPECIAL ORDER

ADJOURNED DEBATE

Address in Reply

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[…]

HON. MR. BLAKENEY: — The accord itself contains much which Canadians can welcome. It provides for patriation. That is, after 114 years as a nation, Canada will now be able to bring home its constitution from the British parliament in London. It will be our constitution totally. No longer will our constitutional decisions be the topic of debate in another country.

The accord also provides a flexible and equitable amending formula for future constitutional change. Under this formula, constitutional amendments will require the approval of parliament and seven of the provinces with at least 50 per cent of the population. No province will have a perpetual veto over change under this formula but, at the same time, if any future amendments take away the rights from a province (for example, the right of ownership of natural resources), the province will be able to opt out of that change.

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The November 5 agreement also contains a charter of rights and freedoms, a charter which has been the subject of a good deal of public debate.

The Government of Saskatchewan believes that bills of rights are a good idea. After all, Mr. Speaker, this province had the first bill of rights in Canada and our present human rights code is one of the best in the country. But we still have strong doubts as to whether a bill of rights should be entrenched in the constitution in a way which puts court decision beyond the reach of any parliament or legislature.

Saskatchewan agreed with the November 5 consensus because we believe that agreement, that accord, struck a good balance. There was an entrenched charter of rights and freedoms. However, the governments agreed that the most complex sections of the charter could ultimately be dealt with by parliament and the provincial legislatures. These are the sections of the charter which entrench fundamental freedoms, legal rights and equality rights. They are subject to what is known as a notwithstanding clause, permitting parliaments and legislatures to make ultimate social decisions.

The November 5 accord says that parliament and provincial legislatures have the right to pass laws which conflict with these sections of the charter. Some people have called this an override clause, Mr. Speaker, I prefer to describe it as a constitutional escape valve.

I believe that this charter strikes a good balance. Rights and freedoms will be protected in the constitution, but at the same time the basic principles of parliamentary democracy will be preserved.

Since November 5, two groups of Canadians have lobbied hard for changes to the accord. These groups were women and native people. Women’s groups did not want section 28 of the accord, which guarantees that all rights and freedoms in the charter will apply equally to men and women, to be subject to this parliamentary escape valve to which I have referred. Mr. Speaker, while section 28 appears to be a simple statement of sexual equality to which no one could have any possible objection, this government is concerned that it could pose a legal threat to affirmative action programs. These are the very programs which make men and women, in law, unequal by giving women a special preference, the very programs designed to break down discrimination against women and others who may be discriminated against in the workplace or elsewhere.

To put it bluntly, we are concerned that equality before the law could be entrenched in the constitution at the expense of equality in practice. We may get legal equality and in fact inequality.

We’ve expressed our concerns to a number of women’s rights groups. They have informed us that they are willing to risk this possible undermining of affirmative action programs so long as section 28 is placed beyond the read of parliament and provincial legislations. So, if they wish to take that risk, we have no objection. When the federal government proposed that the legislative override, the parliamentary escape valve, be eliminated for section 28, the Government of Saskatchewan readily agreed. The Deputy Premier, Mr. Romanow, confirmed that in a Telex to Mr. Chretien on the afternoon of November 18. That November 18 Telex went on to say that if the constitutional accord was going to be reopened to change the effect of section 28 then

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Saskatchewan also wanted to have native rights (that is, treaty and aboriginal rights) affirmed.

A section which recognized the treaty and aboriginal rights of Canada’s native people had been dropped in the final negotiations which led to the November 5 accord. Mr. Speaker, we regret that dropping. Few groups, if any, in our society possess less economic and political power than native people. Because of this, they lack the ability of other groups to press their claims for constitutional protection. Our government had promised to press their case if the accord were reopened. I made that promise to the FSI (Federation of Saskatchewan Indians) and to the AMNSIS (Association of Metis and Non-Status Indians of Saskatchewan) about November 12. Mr. Speaker, we kept that promise. Unfortunately, our position was sadly misunderstood by the national news media. From November 18 to November 22, Ottawa- and Toronto-based news reports claimed that the Government of Saskatchewan opposed the inclusion of equal rights for men and women in the constitution. That was simply not true. Some reports even suggested that we were bargaining women’s rights against native rights. Again, not true.

I ask the members of this Assembly and the people of Saskatchewan and the national news media to consider these facts. On November 18 at 3:30 in the afternoon our Deputy Premier sent a Telex to Mr. Chretien which said that if the accord is to be reopened there should be changes both for women and for native people. Two days later, on Friday afternoon, the federal government changed its position and agreed to include the native rights section in the resolution. They were always willing to have the equality of men and women section free standing. The same day two key provinces, Alberta and British Columbia, publicly stated that they were willing to accept a native rights section. By Monday, November 23, just five days after Saskatchewan stated its position, all Canada first ministers who had signed the original agreement had accepted that position. Because of this government’s stand, Mr. Speaker, native people know that their existing rights are protected in the constitution until such time as native leaders and Canada’s first ministers can agree on a further definition of those rights.

Mr. Speaker, I think that is an important breakthrough. I’m proud of what we have been able to do, notwithstanding a hail of abuse from people who urged us to abandon our insistence on the protection of the rights of native people of Canada. Many, many people suggested it was inappropriate for us to say, “We wish to see two new things in the accord — equality for men and women and native rights.” We took the position that both should be in there; notwithstanding very severe criticism, we held to that position, and in due course every signatory to that agreement agreed with our position.

SOME HON. MEMBERS: Hear, hear!

HON. MR. BLAKENEY: — Once again, Mr. Speaker, as he has been throughout the whole constitutional negotiations, Saskatchewan’s Deputy Premier was the key player in that breakthrough.

SOME HON. MEMBERS: Hear, hear!

HON. MR. BLAKENEY: — The members of this side of the House, and I believe all Saskatchewan people, have reason to be grateful and proud of the role played by the member for Saskatoon Riversdale, my colleague, Mr. Romanow. During the last two years he has done an outstanding job for Canada. I expect that by now a resolution has been passed by the House of Commons which will mean that the House of Commons

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has agreed to a resolution to patriate and amend Canada’s constitution with the consent of nine provinces. The very real joy at that event is of course tempered by the fact that the Government of Quebec has not signed the constitutional accord, this in spite of the fact that a number of changes have been made to the accord which were designed to meet the concerns expressed by Premier Levesque before and during the conference and in the days which followed that conference in Ottawa in November. It is very difficult to gauge the true feelings of the people of Quebec on this issue. On the one hand we had the PQ government saying no. On the other hand, we had most of the Liberal members of parliament from Quebec (and the Liberals hold 74 of the 75 seats in that province) saying that it’s a good idea — two diametrically opposed viewpoints, two diametrically opposed political parties both elected by the same people. That’s what makes this problem something of a conundrum for the rest of the country. But I believe that when time takes its toll we will find that the people of Quebec have accepted that resolution, however reluctantly, and we will have something which is generally acceptable across Canada. Obviously I could be in error on this, but I believe we have achieved something which has eluded Canadians for more than 100 years.

Finally, Mr. Speaker, let me emphasize that this constitutional accord simply sets the rules for future constitutional change. Changes desired by Quebec and by other provinces can now be decided within a clear set of made-in-Canada rules. I believe that fact will help reduce regional tensions and will contribute to a stronger Canada. I believe what we have achieved in constitutional reform will have very positive and lasting results for all Canadians.

SOME HON. MEMBERS: Hear, hear!