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Date: 1983-11-03
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1983 at 6137-6140.
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SENATE DEBATES — November 3, 1983

CONSTITUTION ACT, 1982

ABORIGINAL RIGHTS—AMENDMENT PROCLAMATION—
CONSIDERATION OF REPORT OF LEGAL AND CONSTITUTIONAL
AFFAIRS COMMITTEE ON SUBJECT MATTER—DEBATE
CONCLUDED

[Page 6137]

The Senate resumed from Thursday, October 27, 1983,
consideration of the Report of the Standing Senate Committee
on Legal and Constitutional Affairs on the subjecttmatter of
the Constitution Amendment Proclamation, I983, which was
tabled on Thursday, October l3, 1983.

Hon. Joan Neiman: Honourable senators—

The Hon. the Acting Speaker: I draw the attention of
honourable senators to the fact that, if the Honourable Senator Neiman speaks now, her speech will have the effect of
closing the debate on the consideration of this report.

Senator Neiman: Honourable senators, Senator Tremblay
made a number of interesting observations during the course
of his intervention on this matter last week. I should like to
take a few minutes to reply to some of them.

As was pointed out by Senator Tremblay, there are two
categories of amendments in the proposed amendment to the
Constitution which the Standing Senate Committee on Legal
and Constitutional Affairs has been studying and which is the
subject of this report. Senator Tremblay drew our attention, in
particular, to what might be termed the technical aspects of
the proposed amendments. He pointed out that there are
certain apparent anomalies, if you will, in the wording of some
of the sections.

I should like to draw the attention of honourable senators,
first of all, to those comments with respect to section 54, Part
IV, of the Constitution Act of 1982. Senator Tremblay has
indicated that, in fact, Part IV and section 37—which is all
that is contained in Part IV of the act—were repealed by
operation of section 54 of the Constitution Act, 1982, as of
April I8, 1983. We discussed this matter earlier. Apparently,
the form of the present proposed amendment is such that the
old Part IV is being left as part of the Constitution and we are
inserting a new Part IV.1.

I talked this over with the Deputy Minister of Justice
because it seemed, to be an unusual procedure. He advised me,
however, that it is not uncommon. Rather than delete sections
of the act which are now repealed or are intended to be
repealed at some future date, his officials made the decision
that the section should remain as part of the recordfor future
reference. He pointed out to me that this is not an uncommon
practice because it leaves an historical record, and, further,
that it was done respecting sections 42 and 43 of the Constitution Act, 1867.

It seemed to me—and, perhaps, to Senator Tremblay—that
it is a rather awkward way to make an amendment and that
when we send out copies of the Constitution for public display,
it appearsrather odd to see, included within the Constitution,
sections which are in fact repealed followed by other sections
which are the current, viable sections of the Constitution. That
was, however, the decision which was made at that time. It is

[Page 6138]

entirely possible that, when future amendments are made, the
officials will decide to remove those sections. I merely indicate
the present reasoning behind this procedure.

Senator Tremblay then referred to the fact that certain
words have been deleted from the new sections of Part IV.1. In
particular, the words “including the identification and definition of the rights of those peoples to be included in the
Constitution of Canada” have now been deleted. This is one of
the very matters to which our committee addressed a good
deal of its efforts during all of its hearings. We felt—as I think
our subsequent comments here in this chamber have emphasized—that the committee, as a whole, believes that the identification and definition of the rights of these peoples must be
established at the earliest time, before negotiations can be
proceeded with in any meaningful or successful way.

Senator Tremblay asked why the change was necessary. We
cannot give an answer to that except to say that it was obvious
to us that all parties to the negotiations—that is, the government officials and the representatives of the various native
groups—seemed content that those words should be omitted so
that they could Ideal with them at a later time. I do not think
that allays the uneasiness or concerns that we have, but, as it
appears satisfactory to those people who are going to be
negotiating, lthinkwe must simply rest our case with the
observations that we have made.

The other interesting point raised by Senator Tremblay
dealt with the question of when the resolution may be proclaimed, if adopted, as it undoubtedly will be today. Senator
Tremblay is quite correct in noting that the resolution cannot
take effect before June 1, 1984. This is covered by section
39(1)which states:

A proclamation shall not be issued under subsection
38(1) before the expiration of one year from the adoption
of the resolution initiating the amendment procedure
thereunder, unless the legislative assembly of each province has previously adopted a resolution of assent or
dissent.

When our report was presented, we noted that five provinces, at that point, had adopted the resolution. It had also
then, of course, been adopted in the other place. I have been
advised that, since the commencement of our discussions in
this chamber, the Province of Ontario, after a three-day
debate, unanimously adopted the resolution on October 18. I
am also advised that the Province of British Columbia, amid
all the other business that that legislature has been involved in,
debated this resolution for one day and adopted it on October
21. If this chamber adopts the resolution today, as I hope and
expect it will, it means that the requirements under the
Constitution. Act, 1982 will be fulfilled insofar as the number
of provinces is concerned.

However, as Senator Tremblay has pointed out, it can only
be proclaimed after the expiration of one year. Since the
Province of Nova Scotia initiated the resolution and passed it
on May 31, 1983, we must wait till May 31, 1984 before
proclamation.

After discussions with the Department of Justice, my understanding is that the meaning of the section is that it will
automatically be adopted on June 1, 1984, whether or not the
Province of Quebec takes any action with respect to it. If all
ten provinces register their assent or dissent before that date,
then it could be proclaimed before that time. That is the only
clarification I would make with respect to that particular point
which Senator Tremblay raised.

I would now turn to the subject of the first ministers’
conference as required in the amendment we are considering.
It was pointed out that, if a conference of first ministers is held
prior to the date on which the proposed amendment to the
Constitution is adopted, it will not be a conferenceauthorized
or required by the Constitution, and I think that is quite true.
The amendment cannot take effect until next June 1, so, if a
meeting is held-prior to that date, it will not be ea constitutional
conference within the meaning of this amendment. However, I
do not think that that is of particular concern because I am
sure the native groups would be glad to have a conference
before then as a forerunner to the formal constitutional
conference.

The only requirement then is that there must be one conference before the appropriate date in 1985. However, they could,
perhaps, have any number of preliminary conferences before
that time. They will still be entitled to two constitutional
conferences as required by this amendment.

Honourable senators, I believe that these are the only points
on which I wish to make special comment. I would conclude by
suggesting to you that we endorse the suggestions and observations made by Senator Tremblay in his concluding remarks
concerning the role the Senate should play in future amendments to the Constitution. His suggestion that our committee
should convene a special meeting to look into the procedures is
something I take seriously. I believe this could be done very
well by our committee. We shall certainly proceed with his
suggestion.

The Hon. the Acting Speaker: As no other honourable
senator wishes to participate, this report is considered debated.

CONSTITUTION ACT, 1982

ABORIGINAL RIGHTS—AMENDMENT PROCLAMATION ADOPTED

On the Order:

Resuming the debate on the motion of the Honourable
Senator Frith, seconded by the Honourable Senator
Petten:

That:

Whereas the Constitution Act 1982 provides that an
amendment to the Constitution of Canada may be
made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by resolutions of the Senate and House of

[Page 6139]

Commons and resolutions of the legislative assemblies as provided for in section 38 thereof;

And Whereas the Constitution ofiCanada, reflecting
the country and Canadian society, continues to develop and strengthen the rights and freedoms that it
guarantees;

And Whereas, after a gradual transition of Canada
from colonial status to the status of an independent
and sovereign state, Canadians have, as of April 17,
1982, full authority to amend their Constitution in
Canada;

And Whereas historically and equitably it is fitting
that the early exercise of that full authority should
relate to the rights and freedoms of the first inhabitants of Canada, the aboriginal peoples;

Now Therefore the Senate of Canada resolves that
His Excellency the Governor General be authorized
to issue a proclamation under the Great Seal of
Canada amending the Constitution of Canada as
follows:

PROCLAMATION AMENDING THE
CONSTITUTION OF CANADA

1. Paragraph 25(b) of the Constitution Act 1982 is
repealed and the following substituted therefor:

“(b) any rights or freedoms that now exist by way of
land claims agreements or may be so acquired.”

2. Section 35 of the Constitution Act, 1982 is amended
by adding thereto the following subsections:

“(3) For greater certainty, in subsection (1) “treaty
rights” includes rights that now exist by way of land
claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act,
the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female
persons”.

3. The said Act is further amended by adding thereto,
immediately after section 35 thereof, the following
section:

“35.1 The government of Canada and the provincial
governments are committed to the principle that, before
any amendment is made to Class 24 of section 91 of the
Constitution Act, I867, to section 25 of this Act or to this
Part,

(a) a constitutional conference that includes in its
agenda an item relating to the proposed amendment,
composed of the Prime Minister of Canada and the
first ministers of the provinces, will be convened by
the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to
participate in the discussions on that item.”

4. The said Act is further amended by adding thereto, immediately after section 37 thereof, the following
Part:

“PART IV.1 CONSTITUTIONAL
CONFERENCES

37.1 (1) In addition to the conference convened in
March 1983, at least two constitutional conferences
composed of the Prime Minister of Canada and the
first ministers of the provinces shall be convened by the
Prime Minister of Canada, the first within three years
after April 17, 1982 and the second within five years
after that date.

(2) Each conference convened under subsection (1)
shall have included in its agenda constitutional matters
that directly affect the aboriginal peoples of Canada,
and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on those matters.

(3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon
Territory and the Northwest Territories to participate
in the discussions on any item on the agenda of a
conference convened under subsection (1) that, in the
opinion of the Prime Minister, directly affects the
Yukon Territory and the Northwest Territories.

(4) Nothing in this section shall be construed so as to
derogate from subsection 35(1).”

5. The said Act is further amended by adding thereto,
immediately after section 54 thereof, the following
section:

“54.l Part IV.1 and this section are repealed on
April 18, 1987.”

6. The said Act is further amended by adding thereto
the following section:

“61. A reference to the Constitution Acts 1867 to
I982 shall be deemed to include a reference to the
Constitution Amendment Proclamation, 1983.”

7. This Proclamation may be cited as the Constitution
Amendment Proclamation 1983.—(Honourable Senator
Frith).

Hon. H. A. Olson (Leader of the Government): Honourable
senators, it is not my intention to speak at length on this
motion of Senator Frith. I simply want to express my appreciation and, indeed, my congratulations, not only to the chairman
of the committee but also to the members of that committee,
who made a very useful. contribution to the process that is
involved in the matter referred to the committee.

As Senator Neiman pointed out in the course of her comments, we are now at a stage where eight of the ten legislatures have adopted this resolution, as well as the House of
Commons. I believe it is also true, as has been pointed out,
that when the Senate adopts this motion, it will be proclaimed
one year later.

[Page 6140]

Hon. Duff Roblin (Acting Leader of the Opposition): Senator Neiman has already explained that.

Senator Olson: I have to acknowledge that at one point I
was not listening to the debate. However, I do not think that I
can add anything more to what Senator Neiman has said, and
I hope that honourable senators will approve the motion today.

[Translation]

Hon. Arthur Tremblay: 1 do not intend toengage in a
debate, because actually it already has taken place on the
substance of the issue. Referring to Senator Neiman’s
remarks, I would simply say I am glad that the suggestion I
made the other day, that the process or evolution of constitutional amendments, now that we are in the post-patriation
phase, is a matter to be studied thoroughly, in order to
establish for the future procedures that are reliable and all-encompassing. In any case, we will be perfectly conscious of
that and will be sufficiently aware of the nature of what is
implied to avoid any surprise. Senator Neiman suggested that
while the native peoples did expect a constitutional conference
to be held in March, the fact that it will not be such a
conference may not be a serious problem. Having met subsequently a few natives who are involved in the work done by the
association representatives, this has been a disappointment to
them. They say so in private, because they thought everything
would be over by December. This goes to show the importance
of looking at each such operation, because every time we will
be breaking new ground as far as procedure is concerned. The
Senateindeed is there to undertake such studies. Of course,
the procedure will not necessarily be the same each and every
time. I am glad that Senator Neiman has seriously considered
this suggestion that the Committee on Legal and Constitutional Affairs take the initiative in holding a few meetings as needs
be. We will be hearing) Department of Justice officials, and
witnesses from outside, and will look at the various possible
ways for introducing future constitutional amendments. To
conclude, it has already been indicated that we are going to
agree to the resolution.

Motion agreed to.

The Senate adjourned until Monday, November 14, 1983, at
8 pm.