Constitutional Conference Continuing Committee of Officials, Working Paper Submitted by the Government of New Brunswick on “Regional Disparities–Alternatives in a Constitutional Formula” (29 September 1969)

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Date: 1969-09-29
By: New Brunswick
Citation: Constitutional Conference Continuing Committee of Officials, Working Paper Submitted by the Government of New Brunswick on “Regional Disparities–Alternatives in a Constitutional Formula” (29 September 1969).
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September 29, 1969

The very significant emphasis placed upon the question
of Regional Disparities in Canada, both historically, as well
as within the present constitutional review, makes it necessary
to consider possible approaches to the status of the concept
in any future rewriting of the Constitution or in any amendments
to the present one.

In a sense the regional disparity problem is as old
as Canada or indeed, as old as social awareness in all forms
of political life where inequalities exist. To some extent it
may be viewed as the overriding human question for which
political theory and practice have been searching for answers
over the millenia and which only in our time does there appear
to be some chance of realizing, more or less, this ancient hope.

Even so the Canadian, as distinct from the general human
and global approach, already has an established constitutional
and political history of its own. Indeed, most of the Atlantic
Provinces came into Confederation, including Newfoundland in
1949, with a special recognition of certain disabilities which
the union may have imposed upon them; or conversely, certain
prices had to be paid in order to make union economically and
politically acceptable. Historically therefore, and of course,
more recently, the debate over regional disparities has tended
to have a Maritime-Atlantic Provinces emphasis even though it is
quite clearly a concept applicable to many other areas of Canada
depending upon the definition of both “region” and “disparity”.
Indeed, the more recent regional development programs and the new
interest in ‘poverty’, wherever located, are in a broad sense
equivalents in this general framework of discussion to ‘regional
disparity’ in its conventional and formalized Canadian definition.

Already substantial experience exists with respect to
equalization payments and shared-cost programs, all of which
have as their direct or indirect objective the rectifying of
the problem of inequalities in provincial governmental revenues
and services, and the reduction in the more general inequality
in regional incomes and economic development as a whole.

Given the complex of historical and contemporary commitment
within federal Canada toward the reduction of regional disparities,
and given the companion policies of minimum welfare and services
standards, and positive economic development for less successful
areas, it may be said that there already exists this social-
economic complex of commitments as a matter of national policy,
and even as a matter of constitutional status where some of the
Atlantic Provinces are concerned.

This is, of course, a new aspect to the question that takes
two forms. The first is the very general interest in ‘poverty’
wherever it is located and governmental obligations to do something
about it; and there is, second, a new self-image on the part of
other areas of Canada, e.g. the three prairie provinces, which are
also claiming to be in a position of suffering from forms of
regional disparity. Supplementary to this, of course, there remains
the fact that within large regions, such as Ontario and Quebec,
sub-regional disparity exists within those Provinces — although
the definition of ‘regional’ tends to be thought of generally as
compromising one or more “provinces” as such, for purposes of the
more formalized disparities debate and definition.1

The question now is how to view this national commitment
towards the elimination or reduction of regional disparities
in the context of the constitutional studies now underway?

In the opinion of the Government of New Brunswick there
is every reason to expect in any future constitutional revision
a recognition of the disparities question through some formal
statement in the Constitution. But there are a variety of approaches,
several of which may have quite different juridical, administrative
and political consequences.

These approaches may be summarized as follows:

1. A broad statement in the Preamble of some
future Canadian Constitution, or amendments,
setting out the elimination and/or reduction
of regional disparities as a prime goal of
Canadian society.

2. In addition to such a statement in the
Preamble, specific “powers” could be vested
in the Federal Government to take all the
necessary spending steps to reduce or
eliminate such disparities.

3. This positive constitutional statement giving
the Federal Government “power” to reduce or
eliminate disparities could be reinforced by
adding the “obligation” to do so; not merely
a power with its consequent discretion to do
or not to do.

4. If at some stage a Canadian Bill of Rights
were to include social and economic rights,
such a provision or provisions would create
a standard amounting to a legal obligation
toward the individual that would have as
its broader consequences reducing inequalities
and providing social and economic opportunities
for those protected by the objectives of such
a constitutional requirement — the indirect
result of which would be group benefits in less
developed regions or areas.

5. The use of a formula to determine both equalization
concepts and regional disparity obligations
written into the Constitution, thus spelling
out the obligation whether that obligation is in
the form of a general statement as in (3)
above or whether it is in the form of
economic and social rights as in (4) above.

Of all of these approaches the simplest undoubtedly is the
use of the Preamble to state a general national policy and goal
while the most complex is the attempt to write a “fixed formula”,
as an “obligation”, into the Constitution itself.

The Government of New Brunswick does not believe that a
fixed formula is either desirable or possible in view of the
fluid nature of the problems posed by the ongoing attempt to
develop a society with a minimum of disparity between regions.
The early obsolescence of the Confederation financial settlements
demonstrate how difficult or impossible any realistic approaches
to formula-making would be.

Similarly the Government of New Brunswick does not believe
that public opinion in Canada is prepared to entrench general
principles of economic and social rights in some future Charter
now being considered — although there is no reason why this
approach should not be among those examined in a serious study
of this question.

The Government of New Brunswick, however, is of the
opinion that the statement of national policy or broad goals
aimed at the reduction of regional disparities should at
least be in a Preamble, but this may not be enough. It would
therefore prefer to see in addition to the Preamble, a firm
statement of “powers” vested in the Federal level of government
to eliminate or reduce such regional disparities and to maintain
systems aimed at equalization of services. Such a power could
be set out in the section or sections of the Constitution
providing for expressed powers.

A very difficult question is whether these powers should
be made a specific “obligation” of the Federal Government.
A supplementary question of almost equal difficulty, is whether
by actually defining the power to promote equalization of
services and to deal with regional disparities, there is implied
a restriction on the spending power because a part of it is now
being defined; whereas until such a definition takes place the
spending power, certainly for unconditional grants, remains
unfettered. To add a definition in this area may seem to
strengthen the position of regions receiving federal assistance
by giving the Federal Government the specific power to assist,
as part of the national goals set out in the Preamble, but in
fact it may be defining the spending power in such a way as
indirectly to open the debate as to whether other forms of
spending power would also have to be spelled out in such a revision.

But the more sophisticated problem is whether, in any event,
the approach to regional disparities in a constitutional revision
should lead to the creation of an “obligation” on the Federal
Government to do something about it. Here there will arise at
once the issue as to the political and legal significance of
such an obligation. Politically, there is no doubt that claimant
provinces will be in a stronger symbolic position because of the
very statement of the obligation itself. The real question
is what will have happened “juridically” if the rectification
of regional disparities now were made a “duty”, placed on the
Federal Government, in the Constitution.

In the opinion of the Government of New Brunswick this
question is part of the larger issue of the possibly enlarged
role of the Courts in dealing with the new systems of rights
and duties affecting all governments particularly those rights
that may now be spelled out in the proposed Charter or elsewhere
in the Constitution. It is not unlikely that “class actions”
or federal-provincial litigation could and would arise both
from Bills of Rights types of provisions on the one hand and
regional disparity obligations — or federal-provincial
consultation obligations — on the other.2

For these reasons it is the New Brunswick view that great
care should be taken before adopting the concept of an “obligation”
in this area. It would mean that some measures would have to
be designed to make this obligation meaningful and while certain
of the “measures” might conceivably be political, in the general
bargaining and debating sense, the more specific measure could
well be the extent to which the obligation provided access to
the Courts to command a federal policy or program.

Finally, New Brunswick is of the opinion that the C.C.O.
should in any case experiment with discussions of all five of the
possible variations above, subject to the varying degrees of concern
and difficulty expressed above. But on balance, the optimum
political and legal solution seems to New Brunswick to be a proper
combination of a “goal” in the Preamble and a “power”, but the
latter drafted in such a way as not to raise questions about the
federal spending power in general.

1 For a further elaboration on these points see “Brief by the Hon.
R.J. Higgins, Minister of Economic Growth, Province of New Brunswick
to the Federal-Provincial Ministerial Committee on Regional
Disparities”, Ottawa, June 10, 1969.

2 See the New Brunswick Working Paper (prepared by Dean M. Cohen) to
the Continuing Committee of Officials: “Comments on the Judicial
Process and National Policy in a Federal State”. May 20, 1969.

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