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What Is British Columbia’s Position
On the Constitution of Canada?

November 1976 Victoria, British Columbia

What Is British Columbia’s Position
On the Constitution of Canada?

Presented by
HON. WILLIAM R. BENNETT
PREMIER OF BRITISH COLUMBIA

November 1976 Victoria, B.C.

FOREWORD

The Government of British Colum-
bia is fully committed to the concept
of a united Canada and to the basic
principles of the Canadian Federation.
Canada, one nation, from Atlantic to
Paci?c, comprised of ?ve regions each with its own strengths and
character brought together by common bonds.

To one of the regions, preserving a culture is of paramount
concern; to others, unequal economic opportunity is the greatest
problem requiring redress; to still other regions, developing a sound
and lasting industrial base is of prime importance. The strength of
the nation lies in recognizing its diversity and meeting the challenges
it brings.

The relative strengths of the regions have dramatically shifted
since British Columbia entered Confederation in 1871 and even in
the last decade. That is why British Columbia, in the context of
the current discussions to “patriate” the B.N.A. Act, calls for certain
basic constitutional readjustments to recognize, in constitutional terms,
the rightful place which British Columbia now occupies in Canada.

W.R. Bennett
Premier of British Columbia

INTRODUCTION

The British North America Act, passed by the
United Kingdom Parliament in 1867, created the
Dominion of Canada by uniting the four original
provinces and provides for the addition of other
provinces on the same basis. It continues to be
Canada’s fundamental constitutional document
and contains among its provisions the distribution
of legislative powers between the two levels of
government, a necessary part of any federal state.

While the B.N.A. Act has, by and large, served
Canada well over the past 109 years, the absence
of an express formula within the Act by which
the distribution of powers may be amended has
resulted in a degree of constitutional in?exibility
and uncertainty that is detrimental to coping
with contemporary problems. Beginning with the
Dominion-Provincial Conference of 1927 and con-
tinuing to the present day, almost continual efforts
have been made to arrive at an amending formula
and thereby place fully in Canadian hands control
over its constitutional development.

CURRENT DISCUSSIONS

The current discussions were initiated by the
Prime Minister in March 1976, at which time he
expressed his desire to “patriate” or bring home to
Canada from Britain the B.N.A. Act. Three
options are put forward to bring this about.

The ?rst option proposed is simple patriation.
This could be achieved by the Canadian Parlia-
ment requesting appropriate legislation by the
British Parliament to end its capacity to legislate
in any way with respect to Canada and provide
that all future amendments to the Canadian Con-
stitution be made in Canada. While the Prime
Minister indicated that unanimity of all the
provinces would be desirable for this option, he

expressed the view that the Parliament of Canada
could act without the consent of the provinces
because the simple act of patriation does not of
itself affect the distribution of powers between the
Federal and Provincial Governments.

The second option proposed is patriation with
an amending formula. The Prime Minister sug-
gested that the amending formula might be a tem-
porary one requiring that amendments to the
distribution of powers could only be made with
the unanimous consent of Parliament and the
Legislatures until another amending formula is
agreed upon or, alternatively, the amending
formula set out in the Victoria Charter, 1971, or
some variation thereof.

The third, and more extensive option proposed,
is patriation with an amending formula and certain
substantive amendments to the Constitution.

The ten Premiers of Canada have acted upon
the suggestion of the Prime Minister of Canada to
consider the options put forward and have deliber-
ated at length on these matters both during the
Annual Premiers’ Conference at Edmonton in
August and at their meeting in Toronto on Octo-
ber 1 and 2, 1976. Positive results were achieved
and signi?cant agreements reached among Provin-
cial Premiers during these meetings.‘ For the
first time all Premiers agreed that patriation of the
Constitution was a desirable objective. Agreement
was also obtained on a number of substantive
items for constitutional change and still others
were discussed. Although all provinces were not
able to agree on what an appropriate amending
formula should be, British Columbia is optimistic
that future discussions will result in agreement.
For reasons that will be developed below, British
Columbia is of the view that its proposal for an
amending formula is the one most likely to be
agreed upon as reconciling the various proposals
put forward.

1 For a more detailed list of progress made at these meetings, see Appendix I

BRITISH COLUMBIA’S
POSITION

First, it is British Columbia’s view2 that patria-
tion ought not to be undertaken without the consent
of all the provinces. Even though constitutional
convention might permit the Government of Can-
ada to proceed with the ?rst option without the
unanimous consent of the provinces, for the Gov-
ernment of Canada to do so would, in British
Columbia’s view, be unwise. The act of patriation
is largely symbolic and ought to be conducive to
engendering national unity. Any unilateral move
would lead to national disunity and unnecessary
divisiveness throughout the country, and there-
fore be contrary to the aim and purpose of making
the British North America Act a truly Canadian
document. Moreover, it simple patriation is the
option which is taken, the Bill to be passed by the
British Parliament should contain a provision that
until an amending formula is decided upon in
Canada, unanimous consent of all the provinces
would be necessary to any constitutional change
affecting provincial rights or the distribution of
powers.

Any consideration of an appropriate amending
formula must take full account of the place which
British Columbia now occupies in contemporary
Canada.

A RECOGNITION OF TODAY’S
REALITIES

In terms of geography and population and any
other criteria for growth, the position of British
Columbia in Canada has dramatically changed
since its entry into Confederation in 1871. Yet,
in large measure, British Columbia is afforded to-

day the same degree of importance in constitutional
terms as it was in 1871.

In 1871 British Columbia’s population was
36,247 or 1 per cent of the total Canadian popula-
tion. Today the population of British Columbia
is 10.8 per cent of the total of Canada, the labour
force is 11.2 per cent, the Provincial product is
11.5 per cent, retail sales are 11.8 per cent, and
investment in British Columbia is 12.2 per cent
of the total of Canada3

Although British Columbia is now the third-
largest Province in Canada by almost all growth
indices, it is woefully under-represented at the
national level. Only 5 per cent of the Senators of
Canada are from this Province and there are no
Judges on the Supreme Court of Canada from this
Province. By contrast, Ontario and Quebec each
have 24 per cent of the Senators and each have
three of the nine Judges on the Supreme Court.

It is equally true that the increasing importance
of the other western provinces is not properly
recognized in the Constitution. In 1871 there
were no Provinces of Alberta and Saskatchewan
at all, Manitoba was little more than postage
stamp size, and Newfoundland had not entered
Confederation. It is readily apparent, therefore,
that the distribution of representation at thé
national level of 1871 is not appropriate for
today. Today the population of Western Canada
is 27.1 per cent of the total of Canada, the labour
force is 27 per cent, the provincial product is
28 per cent, retail sales are 29.1 per cent, and
investment in Western Canada is 33.1 per cent of
the total of Canada.

In 1867 the B.N.A. Act quite properly recog-
nized only a three-region Canada—Ontario, Que-
bec, and the Maritime Provinces. With the
subsequent entry into Confederation of British

2 It is important to note that the constitutional discussions now being conducted are within the context of the three
options proposed by the Prime Minister and are not constitutional discussions of an all-embracing nature meant to
consider wholesale amendments to the distribution of powers.
It is in this limited context that British Columbia has
formulated its position. If, at some later date, a more extensive review of the Constitution takes place, British Columbia’s
proposals would be more comprehensive than in the present context.

3 For future population projections of Western Canada, by province. See Appendix II

Columbia, the establishment of the Provinces of
Alberta and Saskatchewan in 1905, and the
enlargement of Manitoba in 1912, the B.N.A.
Act was amended in 1915 to reflect a four-region
Canada. British Columbia is now proposing that
the regional concept be once more updated to
reflect the realities of 1976 by making British
Columbia the ?fth region. To do so would also
strengthen the fourth region comprising the three
Prairie Provinces.

It is signi?cant that early in British Columbia’s
history the area now comprising the Province of
British Columbia was contained in four separate
political units. The Mainland of British Columbia
and Vancouver Island were separate Crown Col-
onies which united in 1866. The third area was
the Stickeen Territory created in 1862 to the
north of the then Mainland Colony. The fourth
territory was Queen Charlotte Island, which was
under Imperial control until 1852 when a sepa-
rate Imperial Commission was granted to James
Douglas as Lieutenant-Govemor of Queen Char-
lotte Island. In 1858, by Imperial Statute, Queen
Charlotte Island became part of British Columbia.

The significance of this bit of history is that
there is some parallel to the state of affairs that
existed on the West Coast in the l850’s to that
which existed on the East Coast at that time. The
substantial difference is that British Columbia
merged all its interests into one political unit
before it entered into Confederation in 1871,
whereas the Maritime Provinces on the East Coast
did not develop in that way. In terms of repre-
sentation at the Federal level the Atlantic Region
has fared much better than British Columbia.

THE AMENDING FORMULA

In order to re?ect today’s realities, British
Columbia believes that the amending formula for
our Constitution ought to reflect the importance
of British Columbia and the rest of Western
Canada in the Canadian Confederation. It rejects
the amending formula contained in the Victoria

Charter as not properly reflecting those realities.
Instead it proposes that British Columbia be
treated as a separate region.

The statistics previously set out clearly show
that the weight that ought to be given in an
amending formula to Western Canada should be
approximately one third of the country as a whole.
The ?ve-region concept would do this for it would
require the approval of each of Ontario, Quebec,
two of the three Prairie Provinces, two of the four
Atlantic Provinces, and British Columbia for con-
stitutional amendments. The ?ve-region proposal
would give the West two of six voices in matters
involving constitutional change. Two of six is a
reasonable reflection of the importance of the West
in today’s Canada. On the other hand, the Victoria
Charter amending formula does not recognize the
emergence of the West. It would give the whole
of Western Canada only one voice out of ?ve.

British Columbia’s proposal on the amending
formula represents a compromise point of view
to the several amending formula proposals put
forward. On the one hand, Alberta proposes a
rigid amending formula that would require the
unanimous consent of all 11 governments to con-
stitutional change diminishing provincial rights,
whereas, on the other hand, the Victoria Charter
amending formula would give an effective voice
to only four provinces, or groups of provinces,
and the Federal Government. The British Colum-
bia proposal provides more flexibility than the
Alberta proposal and yet retains a measure of
stability from frequent change, necessary to a
viable Constitution.

Moreover, the regional concept is more able to
reflect the strengths and weaknesses of the coun-
try, and the various points of view that ought to
be brought to bear on the question of constitu-
tional change, than is a purely provincial viewpoint.
Finally, the measure of agreement necessary under
the ?ve-region concept would approximate the
measure of agreement necessary in other federal
states. For example, in the United States, three
quarters of the states must agree.

The amending formula in any constitution must
be a happy balance of ?exibility so as to permit the
constitution to keep abreast with contemporary
needs and yet be sufficiently stable and ?xed to
provide some measure of constitutional certainty.
British Columbia’s proposal seeks to strike that
balance.

SUBSTANTIVE CHANGES

The current discussions have included a con-
sideration of various substantive changes to the
Constitution that some provinces have viewed as
necessary to accompany patriation and an amend-
ing formula. British Columbia sees a danger in
adding to our Constitution detailed provisions
that may lead to differing interpretations in future
years. Our Constitution ought to state broad
principles cast in ennobling terms and be suffi-
ciently ?exible to meet changing needs. Be that
as it may, in the context of a consideration of sub-
stantive changes to the Constitution, British Co-
lumbia will continue to press for the recognition
of certain legitimate needs of its own that will have
to be met. These are as follows:

(a) The Senate of Canada-—-The Terms of
Union of British Columbia’s entry into Confeder-
ation in 1871 gave British Columbia three Sena-
tors out of a total of 77 Senators at that date.
With only 1 per cent of the population of Canada,
British Columbia could be considered to have had
a fair degree of representation. By amendment
to the British North America Act in 1915, British
Columbia’s representation was increased from
three to six out of a total of 96 Senators. Again,
the 1915 adjustments recognized the realities of
British Columbia’s place in Confederation at that
time for the Provincial population in that year
was approximately 5.4 per cent of the nation’s
total.

British Columbia’s population is now 10.8 per
cent. It has doubled in percentage terms over the
rest of Canada since 1915 and the time has come
for major adjustments in representation in the

Senate. It is no longer acceptable for the ?rst
and second of Canada’s provinces to have 24
Senators each whereas the third-largest Province
has only six. British Columbia calls for today’s
realities to be recognized and that this manifestly
unfair imbalance be recti?ed by increasing its
representation in the Senate to 12.

Quite apart from the need for more representa-
tion from British Columbia in the Senate, there
is a need for other Senate reforms to make it a
more viable part of the federal law-making
process. In most confederations, one of the chief
functions of an Upper House at the national level
is to ensure that the point of view of the various
regions of the federation are properly brought to
bear on the federal law-making process. Because
of inequitable representation and an inappropriate
method of appointment, the Senate of Canada is
not performing the role it was intended to have.
In the Federal Republic of Germany, the Second
Chamber, the Bundesrat, is directly representative
of the state governments and has extensive powers
of veto over all matters affecting state interests as
well as a suspensive power over national matters.
In the United States, each state has equal repre-
sentation in the U.S. Senate. Both of these
instances exemplify more effective regional and
state representation than is the case in Canada.

British Columbia believes that the role of Sen-
ate, the means of appointment to the Senate, and
the tenure of appointees ought to be carefully and
comprehensively reassessed and constitutional
changes made so as to have the regional points of
view re?ected in the national law-making process.

(b) The Supreme Court of Canada-——The
Supreme Court Act, R.S.C. 1970 5-19, is the pres-
ent federal legislation which governs the Con-
stitution, maintenance, and organization of the
Supreme Court of Canada. The only provision
in that Act which sets out the requirement for re-
gional representation is that at least three of the
Judges shall be appointed from the Bench or the
Bar of the Province of Quebec. However, the
practice invariably has been for a great many years

that, because Quebec is legally entitled to three
Supreme Court Judges, Ontario is likewise en-
titled to the same number as the other dominant
provincial partner in Canada.

Since the 1949 amendments which increased the
Court’s size to nine, the practice has variably been
to have at all times three members of the Court
appointed from Quebec, three members from On-
tario, one member from the Maritime Provinces,
and the remaining two members of the Court from
the four western provinces. The last member on
the Court from British Columbia was appointed
on June 3, 1947, and retired on attaining the age
of 75 on September 16, 1962. If past practice is
followed, the next western appointee to the Court
will be from British Columbia, but not until 1982.

It is no longer acceptable to British Columbia
that the ?rst and second largest of Canada’s prov-
inces should at all times each have three Judges
on the Supreme Court of Canada from those Prov-
inces, whereas the third-largest Province, British
Columbia, rarely has one. It is manifestly unfair
to British Columbia to only expect one appoint-
ment approximately every 35 years, whereas the
Provinces of Quebec and Ontario at all times each
have three Judges on the Court.

It was quite reasonable in 1875, when the
Supreme Court of Canada was established, to have
four of the six Judges from the Provinces of On-
tario and Quebec. As is stated above, at that date
Saskatchewan and Alberta did not exist and Mani-
toba was very small. The total population of
Manitoba, British Columbia, and North West
Territories in 1871 was 3 per cent of the total of
Canada. It was not surprising, therefore, that the
West was only given one seat out of six on the
Court.

The map of Canada has dramatically changed
since that date. British Columbia believes that
those changes ought to be re?ected in representa-

tion on the Supreme Court of Canada. It is our
proposal that the Court be increased to 10 Judges
and that at all times at least one of the Judges be
appointed from the Bar or the Bench of the Prov-
ince of British Columbia, two Judges appointed
from among the three Prairie Provinces, three
from Ontario, three from Quebec, and one from
the Atlantic Provinces.

(c) Representation on federal bodies——
There are at the present time a number of federal
bodies which have a profound effect in establishing
national policy but which are little more than
national government institutions rather than being
genuinely federal in nature. The following are
some, but not all, such institutions:

Canadian Transport Commission.
Canadian Radio and Television Commission.
Canadian Development Corporation.
Canadian Broadcasting Corporation.
Bank of Canada.

The decisions which these federal bodies make
have a profound effect on the development of the
country as a whole and upon provincial priorities.
The Bank of Canada is a good example. The
preamble of the Bank of Canada Act states that
“it is desirable to establish a central bank in Can-
ada to regulate credit and currency in the best
interests of the economic life of the nation
and generally to promote the economic and ?nan-
cial welfare of the Dominion”. With a mandate
to dictate monetary policy for the country as a
whole, one would expect some means by which
the Provincial Governments could bring their points
of view to bear on the decision-making process.

British Columbia proposes, therefore, that the
Board of Directors of the Bank of Canada, and the
governing body of other signi?cant federal boards
and commissions, be appointed by a process in-
volving Provincial Governments as well as the
Government of Canada.

CONCLUSION

British Columbia favours patriation of the
B.N.A. Act so as to place in Canadian hands
control over its constitutional development. It
would prefer patriation to be accompanied by an
amending formula, but if an amending formula
cannot be agreed to, then patriation must be ac-
companied by an express safeguard to provide
that any amendments to the Constitution of
Canada affecting provincial rights would require
unanimous approval, until an amending formula
is agreed upon.

As to the appropriate amending formula,
British Columbia considers that its ?ve-region

proposal re?ects today’s realities; it is the one that
strikes a balance between constitutional ?exibility
and stability and it constitutes a compromise of
the various amending formula proposals now
being considered.

Finally, if substantive amendments are to be
made to the Constitution at this time, certain basic
constitutional readjustments must be made in
British Columbia’s representation in the Senate,
on the Supreme Court of Canada, and Provincial
representation on federal boards establishing
national policy, so as to redress the constitutional
imbalance of 1871 and give British Columbia the
rightful place, in constitutional terms, which it
now occupies in Canada.

APPENDIX I

BRITISH COLUMBIA’S STATEMENT ON THE PREMIERS’ CONFERENCE,
TORONTO, OCTOBER 1 AND 2, 1976

Premier Bill Bennett, on his return to British
Columbia from the Premiers’ discussions on the
Constitution held in Toronto, expressed satisfac-
tion with the positive results that were achieved
and the agreements reached among Provincial
Premiers.

The meeting was a historic occasion as it repre-
sents the ?rst time that all Premiers agreed that
the British North America Act, Canada’s Constitu-
tion, ought to be brought home to Canada.

In addition, a number of items for constitutional
change were agreed to. They are as follows:

(1) A strengthening of jurisdiction of Provin-
cial Governments in the taxation of primary
production from lands, mines, minerals.
and forests:

(2) An assurance that the powers of the Federal
Government to declare a project “for the
general advantage of Canada” be only exer-
cised when the province affected agrees:

(3) That the creation of new provinces be sub-
ject to provincial approval:

(4) A greater degree of provincial involvement
in immigration:

(5) A con?rmation of the language rights for
English and French generally along the
lines discussed in Victoria in 1971, but
without prejudice to the rights of other
languages.

The Premiers agreed that there was a de?nite
need for expansion of provincial jurisdiction and
involvement in appointments to the Supreme
Court of Canada, Senate representation for British
Columbia, and the spending powers of the Parlia-
ment of Canada.

On the subject of an amending formula, although
unanimous agreement was not reached on the sub-
ject, the Premier was pleased to report that there
is substantial support for British Columbia’s ?ve-
region concept. “Although we did not reach an
agreement on an amending formula, I would point

out that such lack of agreement has been an out-
standing issue since 1927 and I am con?dent that
further progress will be made on this subject at a
forthcoming meeting with the Prime Minister.

“I made it plain to my fellow Premiers that there
must be a recognition of today’s realities in Canada
so far as British Columbia’s position in Confeder-
ation is concerned. By almost every growth index
such as labour force, population, provincial prod-
uct, and investment, British Columbia is now the
third-largest Province in Canada, yet it is woefully
under-represented at the national level.

“In large measure, it is afforded today only the
same degree of importance in constitutional terms
at it had in 1871.

“British Columbia’s proposal on the amending
formula represents the best compromise to the
extreme position of unanimous consent taken by
Alberta, on the one hand, and the amending
formula proposed ?ve years ago,” the Premier
said.

“The strength of Western Canada today is
approximately one third of that of Canada as a
whole. Our amending formula would give the
West two effective voices out of six, whereas the
1971 formula would only provide the West with
one out of ?ve——-totally unacceptable given today’s
realities.

“British Columbia has, therefore, achieved real
progress in obtaining greater recognition of its
present place in Confederation at this conference.

“As Premiers, we have, through comprehensive
discussions over a period of two days here in
Toronto and earlier discussion during the Premier’s
Conference in Alberta in August, more than met
the suggestion of the Prime Minister of Canada
that the Premiers attempt to reach agreement on
substantive matters.

“A great deal has been accomplished and the
ball is now in the Prime Minister’s court,” Premier
Bill Bennett said.

APPENDIX II

POPULATION PROJECTIONS FOR THE WESTERN PROVINCES,
1971-75 ESTIMATES AND 1976-2010 PROJECTIONS
(thousands of persons)

Western Canada

Year B.C. Alta. Sask. Man. Total B.C. as
per Cent of
Total

1971 2,185 1,628 926 988 5,727 38.2
1972 2,247 1,654 916 992 5,809 38.7
1973 2,315 1,683 908 998 5,904 39.2
1974 2,395 1,714 907 1,011 6,027 39.7
1975 2,457 1,768 918 1,019 6,162 39.9
1976 2,481 1 1,769‘ 912 2 999 1 6,161 40.3
1977 2,545 1,800 910 1,002 6,257 40.7
1978 2,612 1,834 909 1,006 6,361 41.1
1979 2,680 1,869 908 1,010 6,467 41.4
1980 2,750 1,904 907 1,015 6,576 41.8
1981 2,822 1,941 906 1,020 6,689 42.2
1982 2,894 1,979 906 1,025 6,804 42.5
1983 2,967 2,016 906 1,030 6,919 42.9
1984 3,041 2,055 906 1,035 7,037 43.2
1985 3,114 2,093 905 1,040 7,152 43.5
1986 3,188 2,130 905 1,045 7,268 43.9
1987 3,261 2,168 904 1,049 7,382 44.2
1988 3,334 2,205 902 1,053 7,494 44.5
1989 3,406 2,241 900 1,056 7,603 44.8
1990 3,478 2,277 898 1,059 7,712 45.1
1991 3,549 2,312 895 1,062 7,818 45.4
1992 3,620 2,346 891 1,063 7,920 45.7
1993 3,690 2,379 887 1,065 8,021 46.0
1994 3,760 2,412 883 1,066 8,121 46.3
1995 3,830 2,445 878 1,066 8,219 46.6
1996 3,899 2,478 872 1,066 8,315 46.9
1997 3,970 2,510 867 1,067 8,414 47.2
1998 4,040 2,542 861 1,067 8,510 47.5
1999 4,111 2,575 854 1,066 8,606 47.8
2000 4,18 3 2,607 848 1,066 8,704 48.1
2001 4,255 2,640 841 1,066 8,802 48.3
2002 4,333 2,675 836 1,066 8,910 48.6
2003 4,412 2,711 831 1,065 9,019 48.9
2004 4,493 2,747 825 1,065 9,130 49.2
2005 4,575 2,784 820 1,065 9,244 49.5
2006 4,659 2,821 815 1,064 9,359 49.8
2007 4,744 2,859 810 1,064 9,477 50.1
2008 4,831 2,897 805 1,063 9,596 50.3
2009 4,920 2,936 800 1,062 9,718 50.6
2010 5,010 2,975 795 1,061 9,841 50.9

1 Projection B. 2 Projection D.
Source: Statistics Canada Population Projections for Canada and the Provinces 1972–
2001, Catalogue 91-514.

Note: 1971-75 Actual Estimates; 1976-2001 Statistics Canada Projections; 2002-2010
Projections by Statistics Division, Department of Economic Development.