Canada, Senate Debates, “Motion for an Address to Her Majesty the Queen—Debate Continued”, 32nd Parl, 1st Sess (25 March 1981)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 32nd Parl, 1st Sess, 1981 at 2149-2157.
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MOTION FOR AN ADDRESS TO HER MAJESTY THE QUEEN—DEBATE CONTINUED
The Senate resumed from yesterday the debate on the motion of Senator Perrault that an Address be presented to Her Majesty the Queen respecting the Constitution of Canada.
Hon. Orville H. Phillips: Honourable senators, I would like to begin by referring to the kind concern of the Honourable Senator Connolly, who said that the sun was shining on the Conservative benches. I am sure that all honourable senators opposite who wish that they were Conservatives realize that the sun always shines on Conservatives, which is why we are so often right.
Honourable senators who have preceded me in participating in this discussion have referred to the report of the Joint Committee on the Constitution. It is easy for me, honourable senators, to join in the sentiments expressed, and it is indeed a pleasure to extend congratulations to the committee members for their work.
Groups presenting briefs to the committee came from varying regions, cultures and political backgrounds. They clearly demonstrated that Canadians, in spite of our differences, still form a cohesive and free nation under the present Constitution. The committee meetings were extensive, yet the committee failed to justify the need for the new Constitution. One brief would support one viewpoint, and the next day another brief would oppose that viewpoint. The briefs all questioned the future effect of this resolution; they questioned the amendment and its effect on Canada’s future. Honourable senators, I think this is a most important point; one worthy of our consideration. There were many briefs presented, but I am not aware of one which supported the entire resolution, and surely that must tell us something.
The only unanimous support for this resolution that I am aware of came from the Liberal and NDP caucuses. The unanimous support from the NDP caucus terminated when the honourable member for Yorkton-Melville decided that he could no longer support Mr. Broadbent’s blind allegiance to Prime Minister Trudeau. Honourable senators, there are those occasions in Parliament when someone comes forward and displays a lot of courage. Mr. Nystrom displayed that type of courage in taking his position, and I respect him very much for what he has done. He was placed on that committee because he was his party’s expert on the Constitution and on dominion- provincial relations. I suppose I should follow the pattern established by my good friend, Senator Donahoe, and apologize for using the term, “dominion-provincial.” That is no longer in vogue. However, I think it is still appropriate. The honourable member listened to the briefs; he considered them seriously; and he made up his own mind. I had the pleasure, when I was substituting as a member, to sit alongside him, and I discussed various problems with him. He came out of that committee with a new viewpoint. He changed his mind, and he had the courage to say so. Honourable senators, that shows one basic fact: Parliament does work, even if it is only on rare occasions. Mr. Nystrom has shown that Parliament does work.
The actions of Mr. Nystrom produced some interesting horsetrading, honourable senators. In the fashion in vogue in professional sports, the NDP demanded compensation from the Grits, whose first proposal was, “We will give you back Senator Argue.” But, naturally, his former colleagues, who know him quite well, refused to take him back. After considerable trading back and forth, the Grits offered Senator Steuart as partial payment, and the NDP accepted him as partial payment-mind you, a very small part. They accepted Senator Steuart, but they also demanded the future rights to two Grit senators. I have found it rather interesting, honourable senators, to see various Grit senators manoeuvring themselves into position to be drafted by the NDP. I find it curious also that Stanley Knowles has been looking this chamber over, trying to decide which of the two Grits he will draft into the New Democratic Party.
Honourable senators, I had my secretary draw up a list of the objections that were raised by government supporters when this resolution was introduced last October. That list is most interesting. I do not intend to embarrass anyone here by giving the names of the senators and stating what their objections were. I will simply remind honourable senators that last October certain government supporters did have objections to unilateral action; certain senators did have objections to the provisions having to do with language rights, and how immigrants coming into Quebec would be affected, and so on; and certain government supporters did raise objections with respect to women’s rights.
Now those objections have suddenly been forgotten. We now find Grit senators hastening to support the resolution; but in doing so they swallow themselves.
This is the season, honourable senators, for awards like “Emmys” and “Oscars”, and for the best performances to date I feel I must nominate the Honourable Senator Steuart and the Honourable Senator Godfrey. They are in a particular class by themselves, and I am sure they will receive the Pepto-Bismal award for indigestion after having swallowed themselves.
It is dangerous to make political predictions. They have a habit of coming back and haunting the person making them. However, I will stick my neck out by saying that Senator Godfrey will soon be joining Senator Steuart in the NDP caucus.
It is not my intention to discuss the strictly legal aspects of the resolution, honourable senators, but rather to discuss the legitimacy or, as the Prime Minister described it, the moral aspect of the procedure being followed by the federal government. The legitimacy, as I think of it, is the demand or the unspoken consensus initiating or preceding any government legislation. In other words, you do not pass a piece of legislation unless there is some general public demand for it. The legality of the procedure should be decided by the Supreme Court. As Senator Nurgitz has stated, the Constitution should receive the same legal consideration as a prostitution case. He was advised that you do not discuss a certain prostitution case because it is before the Supreme Court; yet, honourable senators, we in this chamber discuss the Constitution while it is before the court.
I have often heard the Honourable Senator Frith refer to Beauchesne. In fact, on occasion he even pretends to have read it. I would ask the Honourable Senator Frith to have a look at page 118 and page 119 of the Fifth Edition of Beauchesne, section 338, subsection (4).
Hon. Royce Frith (Deputy Leader of the Government): I would not want to spoil your allegation by reading it, because then I would be able to say I had actually read it.
Senator Phillips: I think it would do you good, Senator Frith, to read something, and in particular Beauchesne, since you often quote it to us on this side.
Senator Frith: If you think it will do me good, doctor, I will read it.
Senator Phillips: Good. Section 338(4) reads as follows:
The reference of a bill to the Supreme Court of Canada withdraws that bill temporarily from the jurisdiction of Parliament. If the constitutional situation of human rights is submitted to the Supreme Court, it thereby becomes sub-judice and cannot be considered by a committee of the House until the Court has given its decision. The question cannot be before two public bodies at the same time.
I recall several Grits saying that this resolution deals with human rights. I ask the Honourable Senator Frith to take a close look at section 338(4) of Beauchesne.
It is my hope that the Supreme Court will be given the opportunity to deal with the legal aspects of this resolution before it is sent to Westminster. What would happen if this resolution was passed and sent to Westminster before the Supreme Court had an opportunity to hear the case and render its decision? Would the Supreme Court be allowed to continue its hearings after the British Parliament had voted on the resolution? Will Canadians be denied their right of appeal to our Supreme Court?
It is even more interesting, honourable senators, if we ask the basic question: What would happen if this matter were referred to the British Parliament, passed by that institution, and the Supreme Court of Canada subsequently said that it was unconstitutional? Surely honourable senators will consider this scenario before they decide to vote in favour of the resolution.
Earlier I mentioned the unspoken consensus that should initiate legislation. I ask honourable senators to bear with me while I look for that unspoken consensus. It will be very hard to find a consensus for the proposals contained in the resolution which is to be sent to the British Parliament. Such a consensus does not exist among the provinces because eight out of the ten provinces oppose the resolution and the other two provinces, Ontario and New Brunswick, have given only qualified support to the resolution and, in fact, have some very severe reservations. The Gallup polls are also another source of consensus. Such polls are a favourite of politicians. But the government will not find support in the Gallup polls because they show that two out of every three Canadians oppose the resolution and that only 22 per cent, or one out of every four Canadians, support the government’s action.
In an attempt to be fair, I suggest that another place to look for consensus is among the provincial Liberal parties, but there is very little support there as well. In fact, the largest provincial Liberal Party in Canada, the Quebec Liberal Party, opposes the resolution. Indeed, Mr. Ryan, the leader of the Quebec Liberal Party, says that if he is elected on April 13 he intends to pick up the telephone and say, “Hey, boss, back to the bargaining table.” I presume that the Liberal Party of Canada anticipates that Mr. Ryan will be elected. If that is the case, it would be logical that the government put this resolution in abeyance until after Mr. Ryan has made his telephone call to Prime Minister Trudeau.
Perhaps it is more than coincidence that the government is now imposing closure to terminate the debate on this subject. Is it possible the government wants to get the debate over with before April 13 simply because Mr. Ryan may win and could cause some embarrassment to the federal government if it had to deal with him as the Premier of Quebec? I believe that that is the reason for the government’s imposition of closure on the debate on the resolution.
The thought has just occurred to me that we are the only free nation in the world which intends to develop a constitution through closure. It is not something of which we should be proud.
Let us go beyond the legislatures and parliaments in our search for support. Naturally, I do not expect to find such support among Conservatives, but I would like to take a look at the prominent. Liberals of our time. There is the Honourable Jack Pickersgill, a prominent Newfoundland Liberal who, I believe, was referred to as the “grey eminence” of the Liberal Party. He is opposed to the constitutional procedure. There is also Mr. Gordon Robertson, who was a long-time constitutional adviser to the present Prime Minister before he was dropped, and he opposes the government’s plan. I can also think of the Honourable John Turner, who is known and respected by a good many people in this chamber. He opposes the resolution.
Honourable senators, where is the support for this resolution? The only support I can find is from the Liberal caucus, and even that support is not wholehearted. We have heard a variety of excuses, honourable senators, for supporting the resolution; they are excuses, they are not reasons. Surely we should have reasons for supporting the resolution and not political excuses. Instead, honourable senators, we are told that Canada must have a strong central government. I suppose that has a certain public appeal, but a strong federal government has to have a function and should be dealing with the problems facing the country today.
Senator Fournier has stated that we should be dealing with the urgent problems such as high interest rates and inflation— rampant inflation at 12.2 per cent.
The federal government says that the provinces are too strong. A very simple test of the strength of the governments is to examine their spending power. Let us have a look at the amount spent by each of the three levels of government as related to GNP which passed through government coffers. The federal government, in 1980, spent about 42 per cent and, strangely enough, that was an increase over 1979 of 1.5 per cent; the provinces spent 30 per cent; and the municipalities spent 21 per cent. Those figures belie the argument that the provinces are too powerful.
The federal government’s approach to the Constitution is based not on the past performance of a parliamentary system and on the development of our country, but, rather, it is based on a vague concept of a modern Canada. Who can forget Mr. Chrétien’s plaintive, petulant cry, “I want a modern Canada”? It is very effective on television, honourable senators, to say, “I want a modern Canada,” but what does the concept of a modern Canada imply?
Throughout the world there are a number of modern democracies which are vastly different from our concept of democracy, a concept that has worked extremely well in this country. Recent news broadcasts have shown that the Soviet praesidium, or parliament, meets whenever it is convenient for the Communist leaders. The delegates of that Parliament have said, “We do not need any debate; we do not need any consideration; the leaders already know what is best for the people. Therefore, there is no opposition.” Is that the type of modern Canada you want, honourable senators? Is that what is meant by a “modern” Canada?
Canada was founded on the compact theory of Confederation. The provinces created a federal government to assume certain joint responsibilities such as the Post Office and defence. I will resist the temptation to comment on how effective the federal government has been in those two fields, except to say that they will both be crown corporations within five to ten years. The provinces retained the responsibility for the needs of the people in the regions, and they were considered equals, regardless of the size of the province. This concept has suddenly changed.
I would point out how this concept has changed. In 1921, Sir Robert Borden stated:
Confederation was enacted by the Parliament of the United Kingdom. Necessary amendments have been effected by subsequent acts, passed by the Parliament upon joint resolution of the Senate and the House of Commons and no such amendments have been refused. Doubtless, the Canadian Parliament would hesitate to pass any such resolution if its effects would be properly regarded as a violation of the original contract between the provinces. In any such case it would be proper and, indeed, necessary to obtain the consent of every province affected by the proposed amendment.
In the interval since 1921, there has been a complete reversal of the attitude of the federal government. For some strange reason, this present government has a mandate for change. Why? It says, “We have a majority in Parliament.” Honourable senators, a majority in Parliament is not a new situation. Sir Robert Borden had a majority in Parliament. The Right Honourable William Lyon Mackenzie King had a majority in Parliament, and he did not use it to ride roughshod over the provinces. The Right Honourable Louis St. Laurent had a majority, a majority that was based, largely, on his Quebec support, and he co-operated with the provinces. The Right Honourable John Diefenbaker had the biggest majority of any Canadian Prime Minister. He met with the provinces and attempted to overcome the differences and, indeed, succeeded in overcoming a good many of the problems, including several of the problems facing Quebec at that time.
The change in the Liberal philosophy appears to have originated with the present Prime Minister. I would ask my Liberal colleagues in this chamber: Have you had the opportunity at a Liberal meeting to review and consider this anti-provincial stance that your party has taken, or do you get that opportunity in a modern Canada? Today a small parliamentary majority—it is a small one—has been used as an excuse for ignoring and even belittling the provinces and the two out of three Canadians who oppose the constitutional proposals.
One hundred and forty-four Grits in the House of Commons, and somewhere in the vicinity of 60 Grits in this chamber, are riding roughshod over the wishes of about 15 million Canadians. Is this the type of modern Canada that you really want? The present resolution is only the first step in the constitutional proposals. I ask honourable senators to recall what the Minister of Justice said on October 6 when he introduced the resolution in the other place. He said: “We have the ball; we will run with it.” He went on to say:
The second stage of constitutional reform will deal with division of powers and with the updating—
And I use his term “updating”.
—of our political institutions.
If I may, honourable senators, I would ask you to bear with me while I take a moment to go through some of his comments in a speech on February 17. On that occasion the honourable minister asked:
Why do we need in Canada an amending formula that has some flexibility? The answer is very simple, that what we are doing today is the start of the process, not the end.
I ask you: Who created the impression that this resolution is our Constitution? Honourable senators, it is not. It is a very dangerous basis of federal control for the division of powers in changing our political institutions. Need we ask why the provinces oppose the present resolution? They will be helpless to oppose the imminent re-division of powers that is already on the drawing board. If anyone has any doubts that future unilateral action is being planned, I will read to you from page 7377 of the House of Commons Hansard. Mr. Chrétien says:
Much reform has to be undertaken in Canada in future in terms of constitutional powers. For example, take the upper chamber, the Senate . . . some agreement will have to be reached on it.
I notice a few smirks on the faces of some senators opposite who seem to think that removal of the original section 44 has safeguarded them. May I remind you, honourable senators, that both the Minister of Justice and the Prime Minister are still committed to your early demise?
On that same occasion the Minister of Justice went on to state:
We will have to constitutionalize the Supreme Court, that will have to be done some day.
Honourable senators, what does the Minister of Justice mean by constitutionalizing the Supreme Court? Is it to be expanded and packed with government supporters, or, as has been suggested in some quarters, is it to have a special section dealing with constitutional matters?
This would be an appropriate time to remind honourable senators that recently the Chief Justice of the Supreme Court of Canada mentioned his views. He emphatically pointed out that the Supreme Court serves all Canadians, not just the federal government. Obviously, the Minister of Justice does not think very much of the Supreme Court as it is presently constituted and presently performing. I hope that most honourable senators do not share that view.
Honourable senators, I want to point out to you that once the Senate has been removed, the Supreme Court has been constitutionalized, or, in effect, made a government institution, what will stop this government from dealing with the Constitution in the future? There is no check once these two institutions are removed.
Very shortly we are going to have to vote on this resolution. If you do not remember anything else in my wandering remarks today, I would ask you to bear in mind this as being worthy of your consideration: Once the two checks—the Senate and the Supreme Court—are removed, what is going to stop those constitutional bandits in their future plans?
I am sorry I am going on as long as the previous speaker, but I will attempt to shorten my remarks.
Honourable senators, I cannot leave my notes without referring to the real clincher in Mr. Chrétien’s remarks where he said:
The re-examination of the division of powers in Canada will have to be tackled. Some powers could be delegated to the provinces—
I point out to you that he says “delegated”; in other words, the federal government is deciding what they will give away. And then he says:
—and, in the best interests of Canada, some powers could be transferred to the national government.
Honourable senators, what powers does Mr. Chrétien plan to transfer from the provinces to the federal government? What responsibility is going to be removed from the Province of New Brunswick? What function will be taken over by the federal government?
The question that we should have uppermost in our minds is: Quo vadis?—Where are we going from here? What happens when this resolution is passed? What type of country will we have in five to ten years?
Let us consider the provincial status. Will we still have 10 provinces? Will the provinces still have the same responsibilities and significance, or will the premiers be considered as puppets of the Prime Minister, and the legislatures as subsidiaries of the federal government?
Mr. Chrétien also stated:
It is very important also that we strengthen our economic union in Canada.
I am not going to elaborate on that except to say that means one thing, and that is more economic power to the federal government.
Government supporters say that we are going to have federal-provincial conferences or first ministers’ conferences. That supposedly is a generous feature on behalf of the federal government. They don’t have to do it because if they ring the bells the Liberal majority will vote in favour of them at any time.
I looked about for a situation that would be comparable to a premier coming into a conference. It would be similar to a bank manager calling a client, who has borrowed money on a demand note, and saying, “I want repayment”—and the client doesn’t have the money. All the high cards will be held by the federal government, and it will use them.
Equalization payments will be directly tied to the powers the provinces are willing to yield. If honourable senators have any doubt about that fact, I would refer them to the present negotiations for health care grants and university grants. The provinces say that both are being reduced. Look now and in the future for equalization grants to be tied to the yielding of provincial powers.
The oil rich provinces may be able to protect us for a while, but only for a while, until the federal government has complete control of the oil and gas revenues.
Honourable senators, it doesn’t matter whether the oil and gas are under the Rockies, the prairies or off the Atlantic coast; the mark of Marc is already on those revenues. Then, when the first ministers’ conference has failed, we will have a referendum. I would point out that a referendum is a very one-sided situation. I will attempt to abbreviate my notes by saying that the Honourable John Turner has stated that a referendum is foreign to our system: it undermines Parliament; it undermines the legislatures; and it is foreign to the compact theory of Confederation.
The federal government, in an effort to persuade the public that a referendum is all right, states that the I0 provinces can appoint one individual to the referendum commission. Do honourable senators honestly expect western Canada to accept someone from the Atlantic provinces? Do they honestly expect Ontario to accept someone from Quebec, or vice versa? Naturally, the provinces would like to be represented individually or even regionally. I would remind honourable senators that we saw evidence of that in this chamber when the joint committee was being established. All of us, representing our various regions, wanted to see our region represented on the joint committee. The same situation will apply with respect to a referendum.
A friend of mine who is a distinguished lawyer in this city, and also Dr. Ruth Gorman of Calgary, whose articles I am sure all honourable senators have read, have expressed concern about the due process of law being omitted from the charter. I will not presume to lecture my distinguished legal colleagues in this chamber, but I would point out that the due process of law was established in Magna Carta; the legal precedents are established, and I believe that at times even a layman understands it. We now find that a new system and new precedents will have to be established. I would like to hear from my distinguished legal colleagues in this chamber on that very point.
The Charter of Rights has received more criticism than most sections of the resolution. The charter provides for the freedom of conscience in religion, but for some unexplained reason it does not mention property rights. When we are establishing a Constitution, we should anticipate situations that might arise. I would ask honourable senators: What would happen if someone said, “My religion says that I am entitled to own property.”? Perhaps the basic reason why the government does not want to put property rights in is the fact that it realizes that Canadians can no longer afford to own their own homes. In most cases the two partners in a marriage must work in order to pay interest rates of 15 and 16 per cent, and monthly interest payments of $1,000.
After having spent a lifetime in the struggle to pay for a home, are we then going to turn around and tell those people, “Fine. You have done well, but you haven’t got the right to own your own home.”? Millions of Canadians came to our shores because they wanted to own their own home, their own farm, their own business. Will the information that we hand out to possible immigrants in the future say, “You don’t have property rights in Canada.”? I would like to expand a little more on that, honourable senators, but I realize that I have already taken considerable time. Therefore, I will shorten my remarks in that regard.
Honourable senators, we in this chamber often become annoyed with the House of Commons telling us to pass legislation. In fact, I have often heard Senator Bosa say that we have no right to refuse to pass legislation. It is a rather strange philosophy. But the present government has gone one step further—
Hon. Peter Bosa: Would the honourable senator permit a question? Since he mentioned my name, would he elaborate on what I am supposed to have said?
Senator Phillips: I would be delighted to spend some time with the honourable senator and point out to him the numerous occasions on which he has said the very thing that I have referred to. If he does not mind, in view of the fact that I have had the floor for approximately 40 minutes, although I started out with the intention of taking only 20, I would like to ask the honourable senator to allow me to see him later on this matter.
We in this chamber often complain that we are told to pass something. The present government has gone one step further than that, and has said to the Mother of Parliaments, “You pass this resolution—or else!” Honourable senators, I have a booklet here which I am sure you have all received, entitled, “The Role of the United Kingdom in the Amendment of the Canadian Constitution.” It seems that the British Parliament is getting the same instructions as we so often get.
When the Statute of Westminster was passed, the Canadian provinces requested the British Parliament to retain the right to approve amendments. The British Parliament did not insist on it, if my memory serves me correctly. It was, rather, the Provinces of Ontario and British Columbia who at that time were the leading lights in the argument. Now we are telling the British Parliament to ignore the provinces, to forget their moral obligation to hear and consider the arguments of the
provinces. It is my view, honourable senators, that the British Parliament should hear the provinces.
Honourable senators, you will be pleased to know that I am about to close my remarks, but I cannot do that without making a few references to quotes. On Monday the Prime Minister quoted a number of distinguished Canadians—Conservatives—and I think it would be only fair if I were to put on the record a few quotations from a mediocre Canadian, one who professes to be a Liberal, and one who has complained that he has been in a straitjacket for 54 years.
I ask honourable senators to have a look at the House of Commons Hansard for January 26, I970. There we find this Canadian saying:
I, personally, went on record as saying that of all the urgent problems facing Canada, in my view the constitution had lowest priority.
For some reason, that Canadian became Prime Minister of Canada, and in 1971 Peter Ward, on interviewing the same right honourable gentleman, quoted him as saying:
“Constitutional reform is something Canada can live without, a fact demonstrated by all the premiers after a series of conferences,” said Trudeau. He reminded Toronto newsmen that in I967, at the Confederation of Tomorrow Conference, he had opposed tackling constitutional reform.
Obviously he did not find the straitjacket too confining a mere 10 years ago.
Later on, honourable senators, we find in House of Commons Hansard for April 9, 1976, the present Prime Minister stating:
It is for these reasons that I have raised the possibility that Parliament might seek to have “patriation” accomplished without provincial consent if that consent seems . impossible to achieve. Clearly it would be a last resort, and clearly it should not be on a basis that could affect the distribution of powers or the position of the provinces. It must not provide any means by which Parliament could act unilaterally in future in any area where it cannot do so today, since that would erode the essence of our federal system.
Honourable senators, this resolution not only erodes our system; it endangers the country. When the bells ring for the final vote I ask you to remember that.
Thank you for your indulgence.
Hon. Pietro Rizzuto: Honourable senators, allow me to draw your attention to the presence in the gallery of the Italian ambassador to Canada, His Excellency Paolo Fulci, accompanied by his lovely wife, and by his assistant, Dr. Antonio Venturella and his wife.
Mi fà piacere vederle ascoltare il mio discorso.
As I said in Italian, “I am glad to see you came to hear my speech.”
Honourable senators, first of all I want to commend the members of the joint committee, our colleagues the senators as well as the members from the House of Commons. I also want to express my appreciation for the outstanding work of the two joint-chairmen, Honourable Senator Hays and the honourable member for Hochelaga-Maisonneuve, Mr. Serge Joyal, who surely did not have an easy task during their term of office.
I thank the Honourable Jean Chrétien for having made amendments to the resolution, particularly to Section 23, which was of special concern to me, as I told you on October 27 last.
As you know, I am one of those who were strongly opposed to the carrying of section 23 as initially set forth in the constitutional package. I therefore put forward an amendment, not without toil and sweat, the essence of which was retained in the form of an amendment by our government.
Moreover, I have been pleasantly surprised by recent rumors which were eventually confirmed that the Quebec Liberal Party had also changed its position on the language rights, as set out in its Beige Book.
At its general assembly two weeks ago, the Quebec Liberal Party agreed to what has been called the “Canada clause”. It includes the first paragraph of the proposal I made last October 27. The mother tongue will no longer be the only criterion, but school attendance of the parents will also be considered. This proves that the Quebec Liberal Party has understood that using only the criterion of the mother tongue would have created discrimination against a large part of the Quebec population and that it would have caused substantial implementation problems.
In spite of all the amendments which have been made, several of our colleagues have expressed some reserve in their speeches and some of them have even opposed the resolution. As for me, after listening very carefully to many speeches and following very closely the reactions of provincial leaders and experts, I still have certain concerns.
In my speech of October I2, I978, I said in this assembly, and I still maintain today, that to obtain positive results we would have to rely on the goodwill of all our political leaders.
So, I would like to tell you about the actions of several premiers who have constantly opposed the resolution from the very beginning.
If only their efforts and their energies had been harnessed for something positive, I firmly believe that they could have suggested an alternative on behalf of all Canadians. However, as each only wants to defend his own interests, they cannot reach a consensus, and it seems impossible for them to relate to Canadians as a nation.
When the federal government wants a province to share its wealth, such as the oil resources of the western provinces, with the rest of Canada, Ontario agrees wholeheartedly. However, if the federal government asks Ontario to protect the rights of its Francophone minority, Ontario unfortunately turns a deaf ear to this suggestion and if too hard-pressed would rather withdraw its support of the federal proposal.
Quebec will not be bound to protect its Anglophone minority, especially since little concern is shown in Ontario for the Francophone minority.
Yet, it would be up to Ontario to lead the way and show the other provinces that it is not only willing to benefit from the rest of Canada, but that it can make sacrifices to meet and especially respect the needs of all Canadians.
I hope the Ontario government will realize the importance of implementing section 133 and that our Ontario colleagues both in the Senate and the House of Commons will make a point of reminding the Government and the people of Ontario that they should also respect their minorities and, at the same time, the minorities within the Canadian entity.
I realize that it is much more rewarding when we return to our respective regions to be perceived as bearers of good tidings, for instance to announce to our western farmers that the government will pay the difference in the prices of wheat, or to our western cattlemen that it will use the Customs Tariff to protect them, or to our Ontario industrialists that it will not dare raise the price of oil to the world level. Yet, the people of western Canada should also be told that they must learn to share their oil resources with the rest of Canada, just as the people of Ontario should be told that they must learn to protect their Francophone minority and thus show that they appreciate what the people of Quebec have always done to protect their Anglophone minority.
Let it be known that it is not easy for us, as Quebec members of the Senate and the House of Commons, to support this resolution which involves the protection of the English-speaking minority within Quebec. We are being attacked from all quarters, and these include a good section of the population, the Quebec government and the French-language media. Yet, we do not shy away from supporting the resolution and we do recognize that it is necessary if not essential, under the present circumstances in Canada, to make sure that our minorities are protected and our wealth is shared, in the best interests of all our fellow-Canadians.
I do not say this because I do not trust our provincial governments, but because I know what political egotism is, and I submit that if we do not entrench in our Constitution certain basic rights, there will always be governments which will be tempted, to gain votes, to favour their majorities at the expense of their minorities.
It is said in several quarters that we should go back to the bargaining table, but I suggest that it would be pointless because we probably would not reach any consensus. I am thus lead to believe that we do not have the slightest indication that we should think there has been a change of attitude on the part of the provinces since the last federal-provincial conference held last summer.
I very well understand the concerns of some of my colleagues, such as my honourable friends, Senators Deschatelets and Thompson who want a negotiated consensus before going to London, and I share their belief that this would be an ideal solution. However, in view of the lack of such a consensus for all the reasons that I have stated earlier, I am convinced that between the “no action” position of some and the determination of the others to patriate the Constitution, it is obviously more logical to go along with the view of the federal government, namely, to go ahead, subject to correcting whatever shortcomings could show up in the future.
This government has shown flexibility and a great deal of goodwill by adopting several of the amendments suggested by the positive elements of the Canadian people who have agreed to contribute in the drafting of the resolution. All these things being considered, I think, honourable senators, that the federal government deserves our support so that the process of patriation may go on, in the sole interest of the Canadian people without any partisan bias.
It will be the last time that we have to turn to the British Parliament. in order to get approval for what our own Parliament is going to decide. And even if some people would like us to believe that it is the British government who will decide for us, I still disagree. The only thing that Westminster will have to do will be to approve our resolution and return our Constitution to us so that our country may then become fully independent.
Since October I have been staging meetings with various groups and segments of our society. I see that Senator Flynn does not seem to agree. He seems to find it funny.
Senator Flynn: Go on, my friend.
Senator Rizzuto: The discussions dealt with the Constitution. After the discussions, the vast majority of the participants were showing their impatience and asking: “When will we see an end to all this? Will the Constitution be patriated soon?”
I was reminded of the typical Quebec saying: “When is the baby due?”, when one of our colleagues from the other side told us last week that instead of a natural birth, we would have a Caesarean. I agree, and I prefer a Caesarean to the risk of endangering the lives of both mother and child. There are hundreds of thousands of mothers who have had Caesareans and who are now enjoying very good health.
One of the concerns that prompted me to accept my appointment to the Upper Chamber, namely the protection of minorities of all kinds in Canada, has always meant a lot to me. Moreover, I believe it should be one of the priorities of this chamber. And I suggest that the enshrining of the Charter of Rights and Freedoms is an additional guarantee that minority rights will be respected.
Honourable senators, I am no specialist in constitutional law, as some senators are, nevertheless, I shall try to contribute to this thorny debate by relying on logic and drawing inspiration from the yearnings, needs and interests of all Canadians.
Hon. Guy Williams: Honourable senators, it is with much pride, as a first citizen of this great Indian hunting ground known as Canada, that I rise in my place today to participate
in this historic debate respecting the new Canadian Constitution package which is presently before the chamber for final decision and/or passage. In common with those honourable members of the Senate who have preceded me in this deliberation, I support patriation of the Constitution. Patriation, with or without the entrenchment of the Charter of Rights and Freedoms, is the least of my concerns, however, because I have every faith that the procedures of the Mother Parliament in England will be followed conclusively to the satisfaction of the Governments of the United Kingdom and Canada and particularly to the satisfaction of the people of this country.
What I am concerned with, honourable senators, is the complete lack of clarity in the section of the resolution dealing with the aboriginal rights of the native Indians of Canada, whether they be treaty or non-treaty status Indians.
Not too long ago we witnessed on television, and read about in the daily papers, the rejoicing of certain Indian leaders and delegates of certain national and provincial Indian organizations following the announcement by the Special Joint Committee on the Constitution, on which I had the honour and privilege to sit as a member for five days, that the committee would amend the resolution so that it would in fact recognize aboriginal rights. What they were rejoicing about, I do not know.
In perusing the pertinent section of the Constitution package, I did not find any positive recognition of any aboriginal rights. Neither did I find any basis for Indian land settlements. Rather, I found that the native Indians will still have to go to the courts for recognition of their aboriginal rights, and that the governments of the land will only recognize the decision of the courts regarding aboriginal rights and land claims. That is sort of putting the cart before the horse. On one side of the coin the amendment makes reference only to aboriginal rights of the native peoples of Canada, while on the other side it leaves it up to the federal and provincial courts to interpret the section. Well, that is not good enough. More clarity is required in order to satisfy the native peoples of Canada.
It would appear, moreover, that while the pertinent section may strengthen the existing treaty rights, there is no clear definition with respect to the rights of non-treaty Indians, and I am particularly concerned for those non-treaty Indians in my province of British Columbia.
Ultimately, honourable senators, what the amendment provides is for the courts to define aboriginal rights. The majority of the Indians in this country are critical of the amendment because it leaves to the Canadian judicial system the matter of defining and interpreting native treaty and aboriginal rights.
I want it clearly understood, honourable senators, that I shall be a most reluctant supporter of this resolution owing to its lack of recognition of aboriginal rights and the land claims of my people here in Canada, including the Inuit.
Honourable senators, at this time I wish to read to you a communication that was sent to me by a registered Indian. He does not belong to any Indian organization in the country and he wants to remain anonymous. The reason I want to repeat this communication, honourable senators, is that it brings to the surface the feeling of an Indian who is not a member of an organization or in any way connected with any government or the Department of Indian Affairs, and I think it will be useful to this debate. He states:
The proposed new constitution of Canada does not contain the right and proper recognition of we First People, the Indians and Inuit.
The proposed new constitution does not include and does not guarantee the terms of the treaties, the conditions and the legal and moral rights of we aboriginal people in this land.
The new proposed constitution for Canada to be accepted must show its respect for the past history and how this land came about, and the continuing debt to my people, the Indians and Inuit. This must be in the constitution for the British Parliament to release it and for the Canadian House of Commons and Senate to accept it. If our way of life is not guaranteed in the constitution, how do we Indians and Inuit know that we will not be victims of some television Messiah, some hysterical politicians or some wave of public emotion that may feel that there is no obligation from the past and we may be destroyed by some temporary legal maneuvers.
The British Parliament should not approve the handing back of Canada’s constitution to our elected political powers without a guarantee contained in it for a discharge of the obligations forever of the British to we First People. The debt of the British and of the later nation of Canada was created and is an obligation of the present and coming Canadians. This obligation does not extend to new and other groups of people who seek to be Indians and Inuit, but to those who are designated at the present by the laws of this land as Indian and Inuit and those laws should not be changed as to designation without the full approval of our people. To extend the group to include others to make new legal classifications in itself is a violation of the rights and obligations to the Indians and Inuit. This glorious continent of North America was the land of my ancestors for thousands of years beyond count. Without the benefit of different discoveries my ancestors came to terms with nature. They lived their lives in close harmony with natural life. We Indians and Inuit achieved the ideal balance of life and living so that we did not have to make change for the sake of change, progress for the sake of progress, war for the sake of war or have our lives dictated by profit for others. We lived our lives, we lived for our survival, we lived, which is much more than can be said for many people of this world today.
Who are you to say that we First People should change or have changed?
Some centuries ago strangers invaded North America and through the use of the powers of destruction of life our world was changed.
Nature aided our resistance so that the invaders had to come to terms and they made solemn agreements, some in writing, undertakings and moral obligations to we First People. That obligation was the obligation of the British People and entrusted to their Parliament, and the British North America Act, the Royal Proclamation and the subsequent Indian Act which defines what is an Indian was all part of that obligation.
Some of these guarantees were pittances in the light of the uncontrolled inflation of this world today. But none of these terms have changed the deep and moral principle of obligation to we First People.
When that sprawling area of land now Canada was joined into a single nation, the British North America Act and the Indian Act became the laws that governed and isolated our lives. And we have respected them and we have lived by them and now we demand that in the new constitution the security that was guaranteed us once shall be enshrined in that new document. We Indians and Inuit had guarantees of protection for our survival and those guarantees were in the hands of the British people. Their record of faith to their obligations speaks for itself. We have now come to a time when the hand and control of the British people through their government is being removed from our constitution of Canada. All of the laws of all of the people living in this land are now to be entrusted to the elected political groups who will in future govern this land but subject to certain conditions of the new constitution. Before any new constitution can be accepted in principle by the Parliament of Great Britain and Ireland, it is their obligation to insist and it is the obligation of the House of Commons and Senate of Canada and of the legislatures of the provinces and of all of the citizens in Canada that there must be included in that constitution the guaranteed protection of the rights of Indians and Inuit as there was in the beginning, now and ever shall be.
Honourable senators will note that the last portion of the last line comes from the Bible.
While many of the speeches have been lengthy and repetitive, that is not my intention, and I will not keep honourable senators very long. However, I would like to digress for a moment and refer to some of my own observations and possibly to my conclusions on those observations.
While attempting to answer questions and to explain the constitutional package to an old Indian, he at one point shook his head, pointed his finger at me and said, “Listen, it will not work to our good.” He went on to say, “No hunter can slide up a mountain. Many hunters have slid down mountains by accident. The result is usually fatal”. At one point in the discussion the old fellow pointed his cane at me and said, “You say the Indians will go to court for recognition of their aboriginal rights. How can Indians win in the courts when the judge is a member of the enemy?” He turns and walks slowly away saying, “The end, the end.”
His statements remind me that over 2,000 years ago Aesop said, “Right is on the side of the strongest.” Today, I believe that still applies.
The James Bay Crees are 7,000 in number. Their agreement of less than I0 years with the federal government and the Government of Quebec is already falling apart and, according to the press, that is why they are seeking a remedy in the courts. The point is: Who can the Indians trust in this day? How many of their treaties have been ignored in the past?
The Indian finds it difficult to live in this society. He is discriminated against and is only accepted as an equal when in prison, where he receives equal pay and support, or during times of war, when he receives equal pay and training.
Canada’s most decorated Indian veteran, Tommy Prince, who was awarded I0 medals, including the Italian Star, the French Star, the German Star, the Defence Medal, the Canadian Volunteer Service Medal and the Canadian Silver Star, spent his final days living in a shelter constructed of boxes and cardboard in an alley in a Canadian city. He died in extreme poverty. He went to the happy hunting grounds in this manner.
Honourable senators, I am trying to relay to you the feelings and the views of the grass roots Indian people who are not involved in any organizations and who are not connected with government in any way.
Honourable senators, I do not want to repeat what has already been said by both sides. At this stage of the debate, it is questionable what “equal rights for every Canadian” means and what it will do for the Indian and the Inuit.
From Bonavista to Vancouver Island, the Territories, the Arctic lands and sea, Canada is a nation of rich resources which are not now enjoyed by the Indian as they were in days long past. Now I say: Let’s get on with the job; let’s get. it over with and recreate the B.N.A. Act. I am of the opinion that when the Constitution is patriated there will be opportunities in the future for a greater voice for the Indian people.
In the tradition of my people from the west coast, the great shoreline of British Columbia, and in the tradition of my ancestors—I have spoken.
Hon. Senators: Hear, hear.
On motion of Senator Yuzyk, debate adjourned.
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