Proceedings of the Special
Senate Committee on Bill C-110
Issue 2 - Evidence
Ottawa, Tuesday, January 23, 1996
[Translation]
The Special Senate Committee on Bill C-110, an Act respecting constitutional amendments, met this day, at 9:30 a.m., to consider the draft legislation.
Senator Noël A. Kinsella (Chairman) in the chair.
The Chairman: Honourable senators, I am pleased to welcome this morning Professor André Tremblay. I understand that Professor Tremblay has an opening statement to make.
Mr. André Tremblay, Professor, University of Montreal: Mr. Chairman, thank you for inviting me to testimony before the committee looking into Bill C-110. The first question we must ask ourselves concerns the substance of this bill. We have here before us a bill which resembles parliamentary procedural legislation. It has already been adopted by the House of Commons and would restrict the federal government's right to initiate procedures for amending the Constitution.
Pursuant to section 46 of the Constitution Act, 1982, procedures for amending the Constitution may be initiated by the Senate, the House of Commons, or any legislative assembly of a province; this includes any member of these legislative bodies.
This bill would restrict or define the right of federal ministers to initiate amendment procedures, but not the right of ordinary members or senators to initiate them.
Under this bill, federal ministers would not be able to initiate procedures for amending the Constitution without the prior consent of the majority of the provinces, this majority consisting of Ontario, Quebec, British Columbia, two Atlantic provinces having at least 50 per cent of the population of the Atlantic provinces as well as two Prairies provinces also having at least 50 per cent of the population of all the Prairie provinces.
Under Bill C-110, the federal government undertakes not to initiate any reform or make any amendments to the Constitution except for those provided for by section 41 and section 43 or those subject to a right to dissent. No constitutional reforms could be initiated without the prior consent of a majority of provinces, and in particular, without the consent of Ontario, Quebec and British Columbia.
The proposed legislation is not clear at all on how the consent of the provinces would be secured. I would imagine that the provinces could decide for themselves how consent would be expressed, although the federal government would have the right to put the issue directly to the Canadian public with a view to obtaining such consent.
Clearly, this legislation is a reflection of the government's desire to follow up on the undertakings made by the Prime Minister in the closing days of the referendum campaign. At the time, the Prime Minister undertook not to make any amendments to the constitution that would affect Quebec without the consent of Quebecers.
This initiative is also an attempt on the government's part to correct the injustice arising from the 1982 patriation of the Constitution when Quebec lost its historic veto right.
The government is seeking, through this simple piece of legislation, to give Quebec a veto, or statutory veto, over constitutional changes. Essentially, the Constitution guarantees a veto over constitutional change and precludes any changes without the prior consent of the party that enjoys the veto. Basically, the veto right cannot be set aside. It cannot be neutralized by a simple piece of legislation, and this is true as well of the veto rights provided for in sections 41 and 43 of the Constitution Act, 1982.
In all the years that veto rights have been discussed in Canada (and I have verified this, as Senator Beaudoin no doubt has), it has always been clear that any proposed constitutional change to veto rights would require a constitutional guarantee. Never in the history of this country has there been talk of a statutory veto right.
A veto right guaranteed by a simple federal act, one that can be repealed or amended by a majority of parliamentarians, is not a veto right. It is a dubious veto right, a pale imitation at best.
Furthermore, the bill does not live up to Quebec's expectations. With your permission, I would like to touch on Quebec's position which may be somewhat relevant. The bill does not meet its expectations in that it does not deliver what Quebec has been asking for or demanding for decades. Need I remind you that what Quebec is demanding is in-depth constitutional reform. It wants its distinctiveness to be recognized in the Constitution as well as its role as a major partner in the Constitution or in the Canadian federation. Finally, it has always sought constitutional protection from amendments that could prove prejudicial to its higher interests. Quebec has never demanded or called for this type of technocratic approach to the problems of defining its intergovernmental relations with the rest of Canada. As far as the right of veto is concerned, Quebec has always wanted its veto to be guaranteed by the Constitution and exercised by the National Assembly.
In the waning hours of the referendum campaign, Quebecers were promised constitutional reforms. The undertakings made were not supposed to result in this kind of legal artifice or constitutional froth. They were supposed to lead to something much broader. To speak to Quebecers about constitutional reform, to ask them to reject independence, to attempt to dissuade them from choosing sovereignty and subsequently to propose changes without substance is to deceive them and to disregard the promises made during the referendum.
Had this legislation been introduced in an attempt to convince Quebecers to vote No, the federalist camp would probably have lost the referendum. In short, this bill fails completely to meet expectations, is irrelevant and will contribute in no way whatsoever to Canadian unity. Worse yet, it will give credence to the notion that federalist Canada is mired in the status quo and is unable to reform the Canadian constitution. It will also provide some ammunition to those who are seeking to break up the country.
I realize that we should consider other federal constitutional initiatives before making a final or categorical judgement as to the wisdom the federal strategy. Even with the recognition of Quebec's distinct society status by the House of Commons in its resolution and even with the initiatives respecting worker training, we are still a long way from Quebec's minimum demands for constitutional reform. In fact, we are light years away from the Meech Lake Agreement. This initiative delivers even less than the Charlottetown Accord. In my opinion, Quebec will never support proposed constitutional reforms which deliver any less than what the Meech Lake Agreement promised.
As far as Quebec is concerned, the bill is ill-timed. This also holds true from a Canadian perspective. In my view, the proposed legislation does not serve the interests of Canada. Indeed, the interests of Canada are not served by this constitutional straightjacket which tacks on a new amending formula to the one already provided set out in the Constitution Act, 1982. A new element of difficulty has been introduced to the already extremely complex existing amending formula and this initiative does nothing to promote constitutional reform.
It is not in the federal government's best interest to put on a constitutional straightjacket or to restrict the flexibility or leeway it enjoys. Nor is it in the interest of the federal government to sentence itself to constitutional impotence. Eventually, it will be necessary to reach some kind of constitutional arrangements with Quebec in order to save Canada and I feel it is unwise to hamstring the constitutional peace process in this manner and to allow a situation where hypothetically, two Atlantic provinces could exercise a veto and derail the process.
This bill is evidence of a leadership void, of improvisation, of a lack of policy and vision. Ottawa needs a real constitutional policy for Quebec and efforts should be made to address the crisis directly and to propose a cohesive plan for renewing Canadian federalism. Instead, the federal government is content to offer us this solution. It is really too little, too late.
Aside from these fundamental problems, I question the legality of the bill. The proposed legislation seeks to add new components to the amendment procedures already set out in the Constitution Act, 1982. This simple piece of legislation institutes in an indirect way a veto that should have been provided for in the Constitution. In its own way, the bill takes the lid off the whole constitutional issue.
From a strictly legal standpoint, one can argue that this bill changes or alters the procedure for amending the Constitution. One can argue that it proposes a new constitutional amending formula which differs from the one set out in the Constitution Act, 1982. We are all familiar with the provisions of the Constitution Act, 1982, in particular with section 41 (e) of Part V pursuant to which any change to the procedure for amending the Constitution requires an amendment which has been unanimously authorized by the different legislative bodies in Canada. Furthermore, I would draw your attention (I believe this point has already been mentioned) to section 52 (3) of the Constitution Act, 1982, which reads as follows:
Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.
I submit that the constitutionality of the bill is questionable, which adds little to this initiative's merits, if it has any at all. For all of these reasons, I suggest that honourable senators exercise their institutional veto and reject this bill.
The Chairman: Thank you, Professor Tremblay.
Senator Beaudoin: I have to admit that I too raised some questions yesterday as to the constitutionality of the bill and I think that you lend further credence to this argument. The right provided for in section 46 of the Constitution to initiate amendment procedures is not restricted. The federal government may initiate procedures and so too may the provinces. The government may initiate such procedures in the Canadian Parliament, but this bill seeks to restrict this right. Therefore, it is pro tanto an amendment to section 46.
The bill would also institute a statutory veto. This raises a whole slew of arguments. The two sides likely do not share the same view. The government argues that it is a question of procedure. The bill prevents ministers from exercising their power of initiative and from introducing an amendment resolution, whereas a senator or an ordinary MP can do so. I do not deny this. However, if the power of initiative is restricted in a bill and if legislation institutes a right of veto, I fail to see how this upholds the spirit and even the letter of the Constitution. Therefore, I have a problem with this, along with some serious reservations.
From a political standpoint, senators will be reflecting in the coming days on the appropriate action to take. However, I would be interested in knowing whether you feel an in-depth study of the issue is warranted, given that we have taken a similar approach when dealing with matters as euthanasia and so on. Since a constitutional conference is scheduled to be held in a little over a year's time, perhaps we should review the matter in depth in an effort to find out what both Quebec and Canada want and to come up with solutions. How do you feel about this possibility?
Mr. Tremblay: That is a matter for the State. It is a highly political question. Clearly, Canadian men and women of goodwill need to make a tremendous effort to come up with a serious plan for renewing the Canadian federation. We are in the throes of a major constitutional crisis. There is no point burying our heads in the sand and saying that it is business as usual. That is not the case. The Canadian Senate certainly has a role to play in helping to build bridges. The time has come in this country for a bridge building operation and this exercise should not be left to the initiative of the community.
This responsibility should fall to Canadian politicians, our leaders. They must provide the inspiration, imagination, understanding and sensitivity to build this country and make it a place where all communities can live together. If there is a breakdown in the country's political leadership, I believe that the Senate can take up the slack. I definitely believe that the Senate could display the goodwill to which you alluded, undertake this colossal task and make a worthwhile contribution. As an institution, you have the tools to do the job.
Senator Beaudoin: Yes.
Mr. Tremblay: You have access to expertise and to forums where you can express your views and the opportunity to consult at length with those who could be interested in this exercise.
Senator Beaudoin: I have no further questions.
Senator Gauthier: I do not pretend to be a constitutional expert. I am a very simple man of the people who is interested in keeping his country, Canada, together. As I understand it, only the House of Commons currently has an absolute veto. Is that right?
Mr. Tremblay: Yes.
Senator Gauthier: The government appears to be tying its own somewhat with Bill C-110. In my opinion, this initiative clearly has some political merit. It may have no constitutional merit, but I am not sufficiently versed in constitutional matters to argue this point successfully. However, I do know that the bill restricts the federal government's power to initiate constitutional amendments.
Mr. Tremblay: That is correct.
Senator Gauthier: It is fairly clear that by extending its right of consent or right of veto, as you called it, the federal government is taking steps to ensure there can be no changes to the Constitution that affect Quebec without its consent, as long as the federal government complies with Bill C-110. Do you agree with me so far?
Mr. Tremblay: With certain qualifications. I agree that the Constitution confers upon the House of Commons and the Senate a right of veto. However, it is not really a veto right. Existing constitutional laws state - and I apologize for being somewhat legalistic - that changes to the Constitution must be authorized by resolutions of the House of Commons and Senate. Obviously, if the Senate or House of Commons fail to pass the resolution, the amendment is blocked. The constitutional amendment proposals do not fly. There are those who have referred to a semblance of a veto right.
My second comment is as follows. When the government says that it wants its veto right to be subject to the consent of Quebecers, that is both true and untrue. Upon whom does the bill confer the right of veto? This is not clear.
Senator Gauthier: I stated earlier that the House of Commons was the only body to have an absolute veto and you agreed with me.
Mr. Tremblay: Yes, with certain qualifications.
Senator Gauthier: With Bill C-110, the government is proposing to extend its veto to the regions, including Quebec, of course, to avoid a repetition of the 1982 legislation which, we both agree, resulted in Quebec not signing the agreement. Care must be taken to avoid a situation where amendments would be made without Quebec's consent. Do you agree?
Mr. Tremblay: If we want to talk about a veto right, we should talk about what the Constitution recognizes as a veto right. A veto is a right conferred upon a legislative assembly to block or paralyze an initiative and this right is guaranteed by the Constitution. That is what is involved. I think there is some confusion here. We are not talking about the same thing. Because of the language used in politics, we are not, in legal terms, talking about the same thing when it comes to the right of veto.
Senator Gauthier: I understand. However, would you agree with me that only the House of Commons has an absolute veto?
Mr. Tremblay: Agreed.
Senator Gauthier: You agree with me?
Mr. Tremblay: So does the Senate, but to the extent that...
Senator Gauthier: It is not quite the same for the Senate as it is for the House of Commons. It has a suspensive veto of 180 days or 6 months.
Senator Beaudoin: Except in one instance.
Senator Gauthier: That is correct. However, I do not wish to discuss the details of section 44. All I am saying is that the Government of Canada is agreeing to extend the absolute veto that it has in the House of Commons to the regions. Do you agree?
Mr. Tremblay: I like to use the exact wording of the bill. The bill would require ministers of the Crown to obtain the prior consent of five regions before initiating constitutional procedures. That is what the draft legislation says.
Senator Gauthier: Absolutely. And why does it say this? Because the next Premier of Quebec sent us a clear message: Mr. Bouchard said that the Parti Québécois would not accept any changes to the Constitution. What are we supposed to do then? You say that we are in the throws of a crisis and I agree with you. The federal government is willing to extend the absolute veto it enjoys in the House of Commons to the regions in an attempt to end any misunderstanding there may be in Quebec. You are saying that this is not enough. I do not think that we will agree on this issue any time soon, that is certain, but that is the only thing the government could do under the circumstances, given that Mr. Bouchard had dismissed any possibility of going along with a constitutional initiative. The federal government has decided to use the veto it has in the House of Commons. You say that this is not good enough. Earlier on, you recommended that we reject this bill. However, if the Senate rejects it, there will not be any bill at all. You know that as well as I do.
Mr. Tremblay: I have already stated on several occasions that I admire your skill and your knowledge a great deal. Indeed, in politics, while people may hold different views, we can still appreciate dissimilar political positions. I do not think that this bill is the solution to Canada's constitutional woes. We need an infinitely more relevant, daring and imaginative initiative. This bill is purely technical and technocratic, the brainchild of a few audacious officials. It is an example of technocratic make-believe.
Senator Gauthier: However, the bill makes no constitutional pretensions and you know that. There are no constitutional pretensions, either on the minister's part or on the part of the government. The initiative may be bureaucratic, I will admit, but as Senator MacEachen would say, that can be useful at times. What we have here is a political initiative put forward by a government that finds itself in a situation where a Quebec government has dismissed outright every opening and has demanded outright separation. End of discussion. We are saying that we want to keep the country together and this is the first step in the process. It is a start, not an absolute solution. On this point I agree with you.
Mr. Tremblay: Given the present circumstances, there is nothing stopping federal politicians and bureaucrats or the Senate from reconsidering Quebec's demands or historic claims. These are deep-seated. Perhaps by reconsidering and taking a look at these demands, the government may realize that there is still time to answer Quebec's call. Indeed, Quebec has been calling the federal government for some time now and no one has ever answered. Perhaps it is now time for the members of the Senate to answer the call.
Senator Gauthier: This bill is a start and yesterday, the minister announced to us that an overall plan would likely be unveiled within the next few weeks. Like yourself, I will wait to see the details of this plan and I agree that we have to do more than Bill C-110. There is no question about that.
Mr. Tremblay: If what the minister has in mind is a war measures plan to block Quebec's independence, I think he is taking the wrong approach. It has been alleged and implied that the federal government's peacekeeping powers will be invoked to suppress and control the sovereignty movement; quite frankly, this approach is completely disconnected. If technocrats are disconnected from reality, I would have to say that the politicians are doubly so.
Senator Gauthier: Thank you, Mr. Tremblay.
Senator Rivest: Welcome, Professor Tremblay. I have a feeling that we have met at some point in a previous lifetime.
Senator Gauthier: In the same boat...
Senator Rivest: I will not deny that I share many of the opinions and analyses that you have put forward to the committee. You indicated to us that the most immediate problem or threat - Canada has other interests and problems aside from the Quebec issue - was the threat to national unity posed by Quebec. You argued that this initiative is a purely statutory measure, a non-constitutional measure which regulates or restricts the exercise of the federal veto. Different theories have been advanced as to the constitutionality of this measure. As far as Quebec is concerned, given that the problem must be resolved there, in terms of safeguards, what type of defensive and offensive actions should be taken? I mean "defensive" in terms of safeguarding rights and "offensive" in terms of obtaining substantial changes to the Constitution. Is this bill a step forward, yes or no?
For example, from a defensive posture, as for safeguarding Quebec's existing constitutional rights and the veto rights provided for in the Constitution Act, 1982, is Bill C-110 foolproof? Does it really provide an added measure of protection for Quebec's constitutional rights?
Mr. Tremblay: From a defensive standpoint, it is a meek initiative in terms of added safeguards. Protection is of a statutory nature and Parliament can repeal the legislation. However, it is small step forward, albeit one that cannot be taken alone. I stated earlier that an overall cohesive plan was needed to deal with the constitutional crisis. However, you also have to consider taking the offensive. This is critical because Quebec is seeking some special arrangements or special powers in such areas as education, culture, social affairs, health, trade and industry, to mention only a few.
In order to change the way in which federal or provincial powers are divided, amendments would have to be adopted using the 7-50 formula. With this bill, the 7-50 formula is still there, but in addition, there would be the added problem of three vetoes, one by the three provinces and one by the two regions. You saw for yourself the problems that surrounded the approval of the Meech Lake Agreement. Even then, people said it was virtually impossible to achieve constitutional reform in Canada.
Senator Rivest: Let us consider the Meech Lake Agreement, an initiative in which, as we well know, you had a hand. Had this agreement gone through, you and I would not be here discussing the matter and Canadian unity would not be under any kind of threat -
Mr. Tremblay: You are quite right.
Senator Rivest: There would be no Lucien Bouchard, there would have been no Bloc and no spectre of the partitioning of Quebec and Canada. The Meech Lake Agreement was not so bad after all. Do you not agree?
Mr. Tremblay: Totally.
Senator Rivest: Then we should bring the Meech Lake Agreement back. Senator Gauthier, who was a Liberal MP at the time, understood all of this. He was one of the few who did.
Mr. Tremblay: That is why I have a great deal of admiration for him.
Senator Rivest: Let us consider a practical example. Given the proposed legislation and the constitutional situation such as it is, would it be easier or harder for Quebec to secure recognition of its distinct society status? In other words, would Bill C-110, if adopted, make it harder to obtain a constitutional amendment which would entrench the concept of distinct society?
Mr. Tremblay: It would be harder to achieve this once Bill C-110 was adopted.
Senator Rivest: Does this bill address the needs of Quebec?
Mr. Tremblay: That is a harder question to answer.
Senator Rivest: How so?
Mr. Tremblay: Setting aside Bill C-110 for the moment, if we want to amend section 2 of the Constitution Act, 1867, to recognize Quebec as a distinct society, we would have to use the 7-50 formula.
Senator Beaudoin: That is correct.
Mr. Tremblay: The 7-50 formula would apply and there would be no veto. Senator Gauthier is looking at me as if to say that a resolution would be required from the Senate and the House of Commons. You are familiar with the formula and with the Senate suspensive veto of 180 days. However, as things now stand, two Prairie provinces cannot block the recognition of Quebec as a distinct society.
Senator Rivest: Therefore, you are saying that this bill complicates matters?
Mr. Tremblay: Yes.
Senator Rivest: Let us look at a broader issue. Consider the fundamental principle of Canada's linguistic duality. This principle was embraced and agreed to at the time of Meech Lake Agreement and was taken up again in the Charlottetown Accord. Would Bill C-110 make it easier to entrench this principle in the Constitution or would it complicate the process?
Mr. Tremblay: The process is already complicated enough and the bill makes it infinitely more so.
Senator Rivest: How encouraging! In other words, one step forward, two steps back.
Mr. Tremblay: The current amending process is already extremely complex.
Senator Rivest: Then how do you explain the Prime Minister of Canada's statement that he was taking this initiative to help Quebec? How odd.
Mr. Tremblay: Well, I think -
Senator Rivest: I withdraw the question. I am not asking you to comment on this as we are straying onto political ground. There is another fundamental issue in Canada that does not concern Quebec but that will be discussed at considerable length tomorrow. I am talking about the recognition of aboriginal self-government and the presence of all kinds of constitutional theories. Some claim that aboriginal self-government has already been recognized. However, if we are contemplating entrenching this right in the Constitution, does Bill C-110 help aboriginal people in terms of recognizing their fundamental rights and concerns or does it complicate matters further by involving more parties in the process and requiring broader consent? Is this draft legislation to their advantage?
Mr. Tremblay: You are talking about the possibility of amending section 35 of the Constitution Act, 1982. In order to amend this provision to recognize the right of aboriginal people to self-government, the 7-50 formula would have to be invoked.
Senator Rivest: And if the bill were adopted?
Mr. Tremblay: In addition to the 7-50 formula requirements, there would be additional problems, as I mentioned earlier.
Senator Rivest: In conclusion, I want to make one thing very clear, as was done yesterday. From a purely legal standpoint, the bill, far from facilitating matters, or from providing concrete solutions to the constitutional problems of Canadians, Quebecers and aboriginal peoples, complicates the constitutional amending process. I think that the witness made this abundantly clear, just as Professor Pelletier did.
[English]
Senator MacEachen: I wish to thank the witness for his clarity, his conviction, his definitiveness and his clear message to the Senate. Some previous witnesses have been more nuanced about what they want us to do. You have been very clear.
Mr. Tremblay: I hope so.
Senator MacEachen: It is always challenging to a senator to be invited to defeat a bill. When I was Leader of the Opposition in the Senate, I used to be tempted with that prospect, but not everyone liked the idea that the Senate would be so bold.
Your analysis of the bill is quite compatible with that of the minister's, who appeared before this committee yesterday. You told us that this bill was not an answer to the constitutional problems of the country, as the minister said yesterday, very clearly. He said that it was not the full extent of this government's response to the referendum nor the sum total of our strategy or our plans in the matter of national unity. He went on to say that it does not address all the constitutional aspirations of the parties; it does not satisfy these aspirations, as legitimate as they may be, because it is not intended or designed to do so.
As you say, this bill has a limited role; it is not a comprehensive solution. I think the minister agreed with you on that and made that clear to the committee. In fact, he told us, as did you, that this is a procedural bill with a very limited purpose; that it is an effort to settle some unfinished items from the referendum.
You used the words "a small step" or "small contribution". The minister called it "modest". It is a good idea for all of us to keep in mind that this is a limited proposal with limited intent. Viewed in that light, it loses some of the apocalyptic language, or it ought to. We ought to shed some of the apocalyptic language we use in assessing what is a limited, modest, concrete proposal.
I also liked your expression because it clearly establishes the point of the bill; namely, that it provides a straitjacket. But it is a straitjacket for ministers alone, is it not?
Mr. Tremblay: That is correct.
Senator MacEachen: It does not limit the manoeuvrability of Parliament, the Senate or the provinces.
Mr. Tremblay: Not at all.
Senator MacEachen: Any action they could take on the Constitution still exists.
Mr. Tremblay: That is right.
Senator MacEachen: The straitjacket is on the ministers, limited solely, in my understanding, to a prohibition. They cannot introduce a resolution related to certain aspects of the Constitution.
Mr. Tremblay: That is correct.
Senator MacEachen: Yesterday, I listened to a witness from another university who said that this bill increased the level of consensus to approximately 7-92 for any measure that would be introduced by a minister.
I think you said that if the federal government observed the fettering by Parliament, this bill would permit two prairie provinces to block Quebec distinct society, which would not be blocked under the present amending formula. Is that correct?
Mr. Tremblay: That is correct.
Senator MacEachen: Looking into the future, I see a light that reduces the apocalyptic vision that has been opened. Let us say that the Prime Minister, the cabinet and the first ministers struggled with certain amendments to the Constitution and they fell short of the maximum consensus that would permit a federal minister to introduce a motion, but a lower level of consensus existed. I ask you, in your role as a lawyer, whether, if that arose, there is any legal impediment to a province to launch a constitutional amendment at that lower level of consensus. Is there any impediment in the Parliament of Canada supporting it, and the Government of Canada supporting it, at a lower level of consensus? Is there not a two-track possibility revealed in this bill?
You said that if this bill were placed before the Quebec electorate in the referendum campaign, the federalist clause would have been defeated. Is that correct?
Mr. Tremblay: I believe so.
Senator MacEachen: That is a political assessment which you are entitled to make.
My other question - which I ask others as well - is: In your opinion, did the Prime Minister's statements with respect to the distinct society and this question of consent have any effect on the outcome of the referendum, one way or the other?
[Translation]
Mr. Tremblay: I will respond first to your comment regarding the procedure for amending the Constitution that may be initiated at the provincial level. You are perfectly correct in saying that the legislative assemblies of the provinces can initiate procedures for amending the Constitution. This is recognized in section 46 of the Constitution Act, 1982.
If, hypothetically, a minister from British Columbia tabled a bill or resolution in the province's legislative assembly with a view to recognizing distinct society in the Constitution, the constitutional amending process would take its course.
If the B.C. legislative assembly were to adopt such a motion today, the country would have three years to ratify it. The problem to which Senator Rivest alluded a while ago is that, if Bill C-110 were adopted, that same B.C. minister would enjoy the same power of initiative at the legislative assembly level.
However, we could proceed in accordance with the present formula. In other words, you are correct. There are two approaches possible. The federal approach promises to be extremely complicated. In other words, what the federal government is doing is tying its own hands. This is not the case with the provinces. That is why I am saying that there are two possible approaches.
[English]
Senator MacEachen: Or the Leader of the Opposition in the House of Commons or an individual senator could, hypothetically, launch a constitutional amendment and, with a level of consensus of 7-50, amend the Constitution.
Mr. Tremblay: That is correct. I understand you very well.
[Translation]
I would add that the federal government will find itself in such an obvious constitutional straightjacket that the federal minister will eventually have to call on a back-bencher to introduce the draft resolution. That is totally ridiculous.
Senator Rivest: Perhaps it is not such a bad thing for the government's hands to be tied.
[English]
Senator MacEachen: You are downplaying the inherent flexibility of Parliament. This is all possible, and it can happen, and the federal government can play an activist role, but it is limited in that it cannot introduce the resolution. That is what the bill says.
Mr. Tremblay: That is right.
Senator Murray: Surely a federal government would be morally obliged to oppose any resolution that had not obtained consent envisaged in Bill C-110.
Senator MacEachen: I am talking in realm of the law, and that is another question. Higher beings will have to deal with the politics or the morality. We have not had any among the witnesses yet.
[Translation]
Senator Meighen: We live in very different worlds. The legal world, the political world, the theoretical world, and so forth.
Mr. Tremblay: And the academic world.
Senator Meighen: I see that you have not lost your ability to express yourself clearly at all. We received the same legal training. I know where your legal knowledge and clarity of expression come from. I have only one question for you.
Without contradicting each other, I think I can say that some doubts do persist, from a legal standpoint, as to the constitutionality of this bill. There are doubts as to the practicality of the proposed legislation, as well as to its political ramifications. Speaking as a federalist, I am not certain whether it will help us or not. All I do know is that some doubts persist.
There are two ways at looking at the proposed legislation. Some will claim, still looking at the issue from a political perspective, that this initiative is a small step forward. Others will argue that it is a step backward. One thing is clear, namely that a constitutional conference will be held in 1997 at which time a solution must be found to our constitutional problems.
Given the doubt that will prevail until 1997, in your opinion, would it be helpful in some way to add a sunset clause to this bill? You are asking us to reject it. There are people in Quebec and elsewhere who may say that we are opposed to granting Quebec a veto, which is not the case at all. Some may reach this conclusion. One need only consider this morning's discussion to see that as far as the public is concerned, the issue is far from clear.
If the bill were to be adopted for a limited period, until the start of constitutional talks, would this remove the problem that I alluded to and at the same time, ensure that the talks to take place in 1997 will be serious ones?
Mr. Tremblay: I think that given the considerable doubt both from a political and a legal standpoint, wisdom dictates that we refrain from passing this bill. Wisdom also dictates that you truly exercise your constitutional right of veto, something which you have not done often. In fact, the Senate rarely blocks bills. Perhaps this is one case where the Senate should send a clear signal to Quebecers that the government will be taking an overall approach to this issue. What we are seeing here is a piecemeal approach to a global problem, and this is not recommended.
In my view, the Senate should be sending a very clear message instead that it supports, as a responsible institution, an overall plan for constitutional reform, one that will include, obviously, consideration of the veto question. However, the Senate could start by saying that it will consider the real problem, as far as Quebec is concerned, namely the distribution of powers.
Then, if it wants to, it could examine the issue of constitutional guarantees. Your suggestion that the Senate adopt the bill, with the inclusion of a sunset clause, merely amounts to saying that in the meantime, this is the best solution to dealing with the Quebec problem. This is not the approach that I would advise you to take.
[English]
Senator Carstairs: What was clear with the Meech and Charlottetown Accords was that first ministers, either at the national or provincial level, cannot oversell what they can deliver. The Prime Minister made some commitments in the referendum and had to find a way to honour those commitments without having to count on other first ministers necessarily agreeing. No Prime Minister can orchestrate that guarantee, as we have learned. The Prime Minister moved in ways that only he could move; that is, by a resolution on distinct society and by a piece of legislation that would affect him and his ministers. He therefore could say, "This is not enough, and we must do more; this is what I can do. I am showing good faith to have done what I can do unilaterally on my own."
What do you say to that?
[Translation]
Mr. Tremblay: I recognize the inherent problems in reopening the constitutional debate. Initially, the Prime Minister said that amending the Constitution was out of the question. He therefore dismissed outright any possibility of constitutional reform.
The one remaining option available to him was to seek out administrative solutions or arrangements or parliamentary initiatives. He chose the latter option. As I indicated to you in my presentation, this parliamentary initiative has some serious shortcomings, particularly in that it seeks to recognize a concept which normally should only be recognized in the Constitution. The government is somewhat off balance, since it is using a vehicle not designed for this particular purpose.
Therefore, I can appreciate the difficulty that Mr. Chrétien encountered and the problem he sought to avoid. Nevertheless, I stated in my presentation that this approach is unacceptable to Quebec because Quebec is not interested in administrative arrangements that are subject to a parliamentary majority. Quebec has always wanted and demanded guaranteed constitutional arrangements.
What Quebec wants is in-depth constitutional reform and constitutional guarantees. It has never sought statutory guarantees arising from acts of parliament. The laws of Parliament can be amended at pleasure. A simple parliamentary majority can eliminate a guarantee. Quebec is not looking for administrative arrangements, but rather a constitutional agreement within the framework of an overall plan.
I am not saying that the Prime Minister acted in bad faith. I am saying that two days before the referendum, he made some undertakings at the Verdun arena. Like you, I have read what he said. The Prime Minister is upholding his commitments, acting within the framework of the approach that he has chosen, that is he is moving forward with an initiative that has a limited range of action.
[English]
Senator Carstairs: I do not disagree with that. I am merely saying that we must also set stages in politics. We know that the Prime Minister cannot make guarantees of what he can achieve on the constitutional stage. Others have and they have not been able to achieve those guarantees. If you cannot make those guarantees, then surely there must be some value in setting a stage that is built step by step. By doing so, surely there will be a sense that there is, at least at some level, a recognition of Quebec as a distinct society, something which has not existed, and that there is, at least at a very narrow level, a recognition that Quebec, Ontario, B.C. and other combinations of provinces have a veto, something which has not existed. In other words, we have taken the first step up a very long staircase.
[Translation]
Mr. Tremblay: I recognize that this is an initial step. However, the problem is that this initiative is not the appropriate solution to dealing with the kind of crisis facing the country. It does not go far enough. I would even venture to say that it is almost ridiculous to propose this kind of solution given the crisis we are facing. The government is merely applying a small band-aid to a big wound.
The remedy that the government is proposing is not the appropriate way of addressing the existing malaise. That is what I was trying to say.
[English]
Senator Carstairs: What else could the federal government and the Prime Minister have done unilaterally to achieve what you want to achieve, without support from any of the provinces?
[Translation]
Mr. Tremblay: As Prime Minister, I would not rule out unilaterally the constitutional approach. From the moment the Prime Minister did so, he sentenced himself to a kind of paralysis or impotence.
Senator St. Germain: I have a simple question for you. If I vote to block Bill C-110, would this give Quebec separatists ammunition to fight against a united Canada?
Mr. Tremblay: If you vote against the bill, you will send a message that in your view, this initiative does not go far enough, that you want more and that, as a responsible senator, you want to look at the overall problem and be politically relevant.
By voting in favour of this bill, you will have a harder time speaking to Quebec than if you had rejected it. If you vote against the bill, you will easily be able to explain your position in any forum. If you vote for it, you will have big problems explaining yourself. If you support it, I think you will be giving separatist some ammunition.
Senator Rivest: Suddenly, some may accuse us of being separatists?
Mr. Tremblay: That is possible.
Senator De Bané: I beg to differ with you on two points. Firstly, our mission is radically different from yours. You are on a quest for the absolute truth, the ideal good. Those who work in the political arena obviously seek that which is achievable. you are telling me what you want in an ideal world and it is very difficult to disagree with you. However, for those of us in politics, the first rule, as you know, is to start with the facts. The second rule is to take into consideration the forces at work.
To change the amending formula, if we wanted to enshrine an amending formula in the Constitution - you are critical of this bill because it does not enshrine the amending procedure in the Constitution. You would like a requirement for unanimous consent. One does not have to be a fortune teller to realize that demanding unanimous consent in order to change the amending formula is out of the realm of possibility under the circumstances.
In other words, we differ in opinion. I hold to the school of thought that where concrete action is concerned, the good is the enemy of the best. As constitutional historian, you have to know why we have failed to come up with an amending formula for the past 115 years. The reason is that we must contend with two very divergent positions.
On the one hand, each province was demanding a veto and, on the other hand, the federal government was arguing that with 11 vetoes, it would never be possible to amend the Constitution. That is why the Constitution remained in England for 115 years.
Therefore, my response to your claim today that this bill is a good, albeit imperfect, initiative, is that this is fine for someone perched in his ivory tower who wants to forget how the process of amending the Canadian Constitution works.
You also argue that this approach does not take into account all of the claims made by the Quebec government. To that I would say: When in the past 125 years were global amendments last made to the Canadian Constitution?
The only amendments adopted dealt with very timely issues. If Professor Tremblay were to come down from his ivory tower tomorrow to practise politics, I am confident that he would have no problem agreeing with me.
That is the first quarrel that I have with you. You talk about an ideal solution, while I focus on possible, achievable ones.
Mr. Tremblay: Mr. Chairman, it is not even necessary for me to invoke a question of privilege. I was unaware that I had any kind of quarrel with the honourable senator. I am not certain that he understood clearly the gist of my statement.
I did not say anything about an ideal world. I spoke about the real world. I did not talk about an ivory tower, but rather about the need for relevance in constitutional matters. I talked about the higher interests of Canada and I asked you to reject this bill which would do more harm than good to the country.
Lastly, the senator wishes to know when the last radical reform of the Constitution of Canada took place. Unfortunately, I cannot answer that question. That is exactly the problem of which the senator should be aware. If the Canadian Constitution had been overhauled, if at the very least the Meech Lake Accord had been adopted in 1980, as Senator Rivest said, we would not still be here discussing the need for Constitutional reform.
The Chairman: Honourable senators, this concludes the testimony of this witness. On behalf of the committee, I would like to thank Professor Tremblay for his very interesting and important comments. They will make our job much easier. Thank you very much, Professor Tremblay.
[English]
Honourable senators, our next witness is the Honourable Andrew Petter who is the Chairman of the National Unity Committee of the Government of British Columbia.
On your behalf, I welcome minister Petter and his colleagues.
I also welcome, as a guest of the committee, a member of the other place, Svend Robinson, who represents a federal constituency in British Columbia.
Minister Petter, welcome. Following your opening statement, we will have a series of questions from the honourable members of this committee.
The Honourable Andrew Petter, Minister of Forests, Chairman of the National Unity Committee, Government of British Columbia: Thank you, Mr. Chairman. The weather here is very hospitable for a British Columbian, although I did wake up this morning to a hotel room which had no hot water and was forced to choose between a cold shower and no shower at all. I worried that this might be a metaphor for British Columbia's role in respect of this particular unity provision. I hope not.
Senator Gauthier: On a point of order, Mr. Chairman. I regret to do this, but the cameras are taking film and we have no authority from the Senate for that. I would ask that they withdraw.
Mr. Petter: I understand, Mr. Chairman, it may be possible to facilitate one minute of media pictures, after which I am sure the media would be pleased to leave, if that would suit the committee.
The Chairman: We will have a one-minute pause.
Mr. Petter: Thank you very much, Mr. Chairman, for facilitating that.
With me today is Catherine Holt, Assistant Deputy Minister of Intergovernmental Relations for the Government of British Columbia.
I would like today to not only address the specifics of Bill C-110, but also to suggest ways in which the provinces and the federal government can work together constructively to resolve the pressing problems of national unity.
This is really the first opportunity that British Columbia has had to make oral submissions on Bill C-110 or, indeed, any elements of the so-called unity package. British Columbia was not consulted regarding the substance of the proposal; nor were we given the opportunity to appear before the House of Commons Standing Committee on Justice and Legal Affairs, although we did submit a written brief to that committee. I want to begin by saying that, in our view, this lack of consultation is not the way for the federal government to build and foster national unity.
British Columbia is committed to finding lasting solutions that will preserve Canada as a strong and united country into the next century and beyond. We do not believe that the solutions lie in quick fixes or in short-term answers.
The current federal government seemed to share a long-term view when it assumed power. As you recall, Prime Minister Chrétien promised that his government would concentrate on economic issues, particularly job creation, as well as protecting the social safety net, rather than trying to find constitutional fixes to Canada's problems. It appears to us that the federal government has, over the course of the past two years, lost its way. As a reaction to the fiscal situation, the federal government has made inappropriate budget choices by unilaterally slashing social spending and, as a reaction to the threat of Quebec separation, the federal government has introduced its short- sighted and ill-conceived unity package, again without any consultation with the provinces. It is our submission that both of these actions harm the cause of national unity. In the view of British Columbia, both should be abandoned.
I will comment first on Bill C-110 and explain British Columbia's opposition to it. Following that, I will offer B.C.'s view of how the federal government can get back on track by pursuing the kind of policies it promised just over two years ago, policies that recognize the need for cooperative and concerted action by all governments and citizens of Canada working together to meet the challenge of keeping our country together.
With respect to Bill C-110, I think members of the committee will be aware that British Columbians reacted swiftly and angrily to the original four-region veto proposal brought forward by the federal government. That reaction focused initially on the failure of the federal government to recognize British Columbia as a region in its own right. Having adopted a regional approach, the federal government added insult to injury by lumping British Columbia in with the Prairie provinces. When the federal government moved to a five region proposal, it removed the insult, but it did not displace the fundamental injury.
It is our view, and continues to be our view, that any regional veto scheme is fundamentally flawed, will foster disunity, and is fraught with problems. I would like to outline some of those problems.
When the 1982 Constitution was adopted, the principle of Canada as 10 equal provinces was embraced within our constitutional amending formula. The concept of Canada as a number of regions was specifically rejected. Bill C-110 is in direct contradiction with the spirit and intent of the 1982 Constitution and the discussions that led up to its adoption.
The problem with regional vetoes is obvious from the way the current proposal will operate. Ontario, Quebec and British Columbia will obtain provincial vetoes. Alberta will obtain a de facto veto because of its population. Other provinces will obtain shares of a veto based on their position as part of a region, and some will obtain no influence at all. The result will be the creation of at least four classes of provinces in Canada.
The creation of four classes of provinces - first class, second class, third class and fourth class - is an inherently divisive notion that will ultimately undermine, not strengthen, the commitment to national unity.
In addition, the regional veto is a back-door attempt by the federal government to change the way the amending formula works in practice. For instance, proposed amendments which meet the current 7-50 test could be defeated by a single region exercising its veto. The Constitution requires that formal changes to the amending formula receive unanimous approval of all the provinces; yet, this de facto change is being made with no meaningful consultation whatsoever. Perhaps the greatest irony of all is that this proposal does not even pass its own test. Indeed, it is opposed not just by one region, but by a majority of regions.
If the federal government is serious about respecting the wishes of Canada's regions, you would have thought they would have shown that respect in responding to the position the regions have taken in respect of this proposal. Yet, notwithstanding the opposition of British Columbia, Alberta and Quebec, the federal government continues to push this ill-considered proposal forward, thereby undermining the very point they are trying to make.
Although the federal government is saying that this is a temporary measure until formal talks take place in 1997, we believe that it is very unlikely that Parliament will repeal this bill once it is in place. As long as central Canada dominates the House of Commons, the regional veto scheme is likely to stay. That means that changes which are in the interests of British Columbia and the west will be all but impossible. The amending formula, which is already complex and inflexible, will become completely inoperable. We cannot build a country by putting the Constitution in a straitjacket, and, if I may say, that is equally true of the interests of Ontario and Quebec.
For these reasons, it is all the more inappropriate that the federal government has chosen to pursue its course of action unilaterally without consulting the provinces or the territories. Moreover, since the first ministers are constitutionally mandated to review the amending formula before April 10, 1997, it is our view that the federal government is pre-empting those discussions by acting unilaterally at this time.
Finally, the so-called federal solution is unlikely to solve the problem it was designed to address. Quebec has greeted the proposals with little enthusiasm, and relations between Quebec and Ottawa have not improved. Moreover, Quebec governments in the past have rejected the regional veto formula as a solution. As I have mentioned, the Quebec government continues to oppose this solution.
British Columbia believes that the federal government could spend its time more productively, therefore, between now and 1997, when constitutional discussions must take place, by working within the existing constitutional framework to regain a position of credibility and leadership. It can do this by cooperating with the provinces and developing practical solutions to the real problems faced by Canadians. It could also demonstrate to Quebecers and all Canadians the real costs and disadvantages of breaking up this country.
In short, we believe that the unilateral action of the federal government in imposing Bill C-110 not only fails to promote national unity, but also impairs it. For that reason, the federal government should, in our view, withdraw the bill and get back on course with positive and practical policy choices that are made in cooperation with the provinces.
There are a number of changes which the federal government should make within the current constitutional arrangements to promote national unity by addressing the real concerns of Canadians. I want to talk briefly about a few of those.
First, it is no secret that Canadians are very much wedded to a national identity around social programs. A shared commitment to health, education and social security programs accessible to all Canadians is one of the chief reasons that Canada is viewed as the best country in the world, and it is a major contributor to national unity. The current erosion of the Canadian government's commitment to these programs is a threat to the very fabric that holds Canada together. The drastic cuts in federal support for social programs has severely compromised the ability of the federal government to maintain national standards for these programs.
While British Columbia fully appreciates the reality of the federal fiscal situation, we believe that the federal government has made the wrong budget choices and has set the wrong spending priorities. Indeed, Premier Harcourt wrote to Prime Minister Chrétien last spring indicating how cuts could be made to business subsidies and business tax breaks in order to maintain current social spending levels. Hence, the federal government could continue to show leadership and commitment to the social programs that matter so much to all Canadians.
British Columbia remains ready and willing to cooperate with the federal government in setting spending priorities and eliminating duplication and waste so that our social safety net will remain strong.
Prior to the last federal election, the federal Liberals decried the unilateral decisions of the previous government in transferring responsibilities for programs and cutting transfer payments to the provinces. Now is the time for the Liberal government to make good on its Red Book promise to protect social programs by achieving the maximum degree of predictability and stability for each level of government.
A second issue is that of discrimination. In our view, discriminatory practices in federal program spending, which will result in Canadians from one province being treated differently from those in another, cause feelings of alienation which hamper national unity. British Columbians understand that not all provinces have the same ability to raise revenues needed to provide adequate levels of health, education and other social services. For that reason, British Columbia remains a supporter of fiscal equalization.
We believe that fiscal equalization is an appropriate approach to ensuring that all provinces are able to provide comparable benefits at comparable levels of taxation. However, once equalization is in place, we believe that Canadians must be treated equally in terms of their entitlement to social benefits funded by the federal government. In other words, the amount of their entitlement should not depend upon their province of residence. To do otherwise is to erode the sense of fair and equal treatment that must underlie national unity.
From British Columbia's perspective, I would like to offer two specific examples that have seriously undermined the federal government's commitment to maintaining a uniform and equitable approach to national social policy which, in turn, contributes to national unity.
First, there is the discrimination against British Columbia caused by the cap on Canada Assistance Plan payments which has been perpetuated under the new CHST arrangements. This means that while most provinces receive 50 cents on every dollar for welfare costs, B.C. receives only 30 cents. How can the federal government justify providing a welfare recipient in Quebec or Newfoundland with 50-cent dollars while providing welfare recipients in B.C. with 30-cent dollars? Discrimination continues to exist despite stated opposition to the cap on CAP by the present Liberal government before it was elected.
Another example of discrimination is the $47-million penalty which has been imposed on British Columbia for the introduction of a three-month residency requirement as a prerequisite for welfare benefits. This move was made by B.C. to defend the viability of its welfare program in the face of an influx of welfare recipients from provinces such as Alberta and Ontario, which slashed their welfare rates, and in the face of the federal government's failure to maintain national standards around social welfare programs.
British Columbians ask: Why were Alberta and Ontario allowed to gut their welfare programs through cuts while British Columbia was penalized for trying to renew and strengthen its welfare system?
The federal government's response to the various welfare policies of the provinces is not only discriminatory, but also further undermines the social safety net by rewarding provinces that cut benefits while penalizing those like British Columbia that take steps to renew their welfare systems.
Thirdly, British Columbia shares the desire of Quebec and other provinces to obtain more autonomy and flexibility in areas that are important to our economic future such as labour market training. However, the federal government's efforts in this area have been half-hearted at best. Ottawa has been unwilling to provide the provinces with the ability to design their own programs even in areas totally within provincial jurisdiction. The federal government's recent plans to privatize training by means of a voucher system, or to delegate to the provinces the administration of federally designed programs, does not give provinces the needed flexibility to create jobs and build a strong economy; nor does it show a serious federal commitment to providing autonomy and flexibility where it is required.
In conclusion, the federal government, in our view, cannot promote and protect national unity by forcing changes to the Constitution; nor can it do so by proposing 25-year-old solutions. For that reason, we are asking the federal government to withdraw Bill C-110 and the rest of its disunity package. We are asking the federal government to get back on track and work in cooperation with the provinces on the real issues of concern to Canadians. Rather than pre-empting 1997 constitutional talks, the federal government should promote national unity and lay the groundwork for those talks by protecting the social safety net, assuring equality of federal program spending and providing the provinces with more autonomy and flexibility to deliver services and create jobs in the most effective way.
National unity will not be achieved through unilateral federal action or by responding to only one province's concerns. It can only be achieved by all provinces and all Canadians working together.
The Chairman: Thank you very much, Mr. Minister. We will begin our dialogue with Senator St. Germain.
Senator St. Germain: Thank you, Minister Petter and Ms Holt. You have clearly put the arguments forward. As a matter of fact, your brief answered most of the questions I had prepared last night with regard to the view of the province of British Columbia on the veto and this particular piece of legislation.
We are dealing with a litany of problems in Canada right now, as you pointed out - social, economic, et cetera. We speak of the devolution of powers. Everyone is speaking about devolving the powers of the federal government. I believe that the number one purpose of the federal government is to keep this country united. How is it to do that if it devolves all of its powers to the provinces?
Various prime ministers have taken various positions. My belief is that the devolution of powers is fine where duplication exists, but that devolution of powers can be as detrimental to a united Canada as can be failure to devolve powers.
Have you any comment on that?
Mr. Petter: Senator, I do not disagree with you at all. In fact, the thrust of my submission is that the federal government needs to re-establish a presence in certain areas. At the same time, it needs to establish a greater degree of flexibility and provide for greater autonomy in others. It is a matter of providing an appropriate balance to ensure that the Constitution works well.
At the heart of my presentation is the proposition that if the federal government is to maintain its credibility, not only in Quebec but also in British Columbia, it needs to do so by recommitting itself to the very things that this government said it was committed to more than two years ago and has since abandoned; that is, a commitment to fostering an economy that provides jobs for Canadians and fostering a national social policy that provides national standards and entitlements to Canadians on an equitable basis.
If the federal government committed itself to those areas, I think it would have placed itself in a far stronger position vis-à-vis Quebec during the last referendum campaign and would not have lost much of its moral authority to speak as a strong voice for Canadian unity.
At the same time, there are some areas in which Quebec, British Columbia and other jurisdictions would like to see more autonomy, for very legitimate reasons. In our opinion, labour market training is the most obvious example of an area where the provinces can display leadership and respond to the particular needs of their economies.
I hope you recognized in my presentation the plea for a strong federal role in the very areas in which this government initially said it would play a role and from which it has since backed away. As a result, it has hampered the cause of national unity, forcing itself back onto the slippery slope of the Constitution.
Senator St. Germain: Do you not think, Mr. Minister, that certain events within the province of Quebec are forcing the federal government back onto the slippery slope, as you describe it, of having to deal with these constitutional issues? Even if they looked after jobs, the economy, and social programs, are issues that are emanating from the province of Quebec with regard to the identity of Quebec, the protection of their culture, et cetera, not theoretically forcing them to take the leadership role and create the vision that is required? Do you agree that they really have no choice at this time, based on the activities of certain individuals within the province of Quebec?
Mr. Petter: The choice the federal government has created for itself is of its own making. If we are to foster national unity, we have to do it from the ground up. It was Mr. Chrétien's vision of national unity, expressed prior to the last election, that one starts by demonstrating leadership on economic and social issues and builds from there.
Had the federal government done that, it would have had a much stronger case to put to Quebecers in the referendum campaign about the relevance of a national government. Indeed, it was ironic for many around the country to hear the separatist forces in Quebec arguing the social policy case in aid of separation, with the federal government not being able to answer credibly because of the abandonment of a credible national social policy and a commitment to an economic policy that fosters jobs.
I am not denying for a minute the need to deal with outstanding constitutional issues at some appropriate time. However, the appropriate time must follow the federal government having regained some credibility and having demonstrated some progress. The appropriate time is not when we have a government in Quebec that has no interest in working on constitutional issues and will do everything in its power to block constitutional progress.
I disagree that the choices with which the federal government is presented are forced upon it, other than through circumstances it has forced upon itself.
Senator St. Germain: You stated unequivocally in your presentation that there was no consultation at any level with British Columbia with regard to Bill C-110.
I asked a previous witness, a professor from the University of Montreal, whether, if I vote to block this legislation, that gives the separatists a thread to hold on to. That is my concern because the unity of the country must be first and foremost in our minds.
Can you comment on that from your experience?
Mr. Petter: I would not presume to enter into the politics of the Senate and its relationship with the House of Commons and how that might be seen. We chose to appear at this time because this committee extended the courtesy of an invitation and because of the inability of British Columbia to make its views known previously.
It is my view that the federal government, having taken a leadership position, albeit in a misguided direction, should take the lead again. It should admit that the actions it has taken in promoting this package have been misguided, counterproductive, and do not even meet their own test. The federal government should swallow a bit of pride and get back to the real issues that they staked out more than two years ago.
I will leave it to senators to determine how they can contribute to influencing the federal government in that regard. Our wish is that the federal government would take responsibility for this issue and act in a way that would foster national unity; namely, by withdrawing the bill and getting back on course on these other matters.
Senator Marchand: As a British Columbian, it is a good time to welcome you, because the weather is quite friendly. Welcome to Ottawa.
Many of us around this table have been talking about constitutional amendments for quite a while. As a former member of Parliament representing British Columbia, I cut my teeth on this in Pierre Trudeau's day, starting way back in 1968. As a province and as an area, I think we have moved ahead quite a bit. I recall one incident, which I will never forget. I was most embarrassed as a British Columbia member of Parliament. When the MacGuigan-Molgat commission went to Victoria, Senator De Bané and Marcel Prud'homme spoke French in that meeting and they were booed. I was most embarrassed about that.
We are fighting away. You will understand some of the difficulties that have gone on with the Meech Lake Accord, the Charlottetown experience, and so on. I am just a little surprised to hear you say that we should not proceed with this bill at all. You will understand the context in which the Prime Minister made these commitments. It was at the end of the debate on the referendum, a time when we were all fighting hard. A large delegation from British Columbia came down on the plane to fight and show how much we care about our province and our country.
I am happy to say that as a result of some of the things that were done during the Trudeau era especially, such as the Official Languages Act which was an institutional measure, we are a much better province and a much better country. On the French language issue alone, for instance, the immersion programs are booked solid. That is good, that is progress, and that is what we are trying to do.
In his presentation yesterday, Allan Rock made it clear that this is just a small measure. It is not the be all and end all. There will be more things coming down the road.
As far as the consultation process goes, I regret - and I am sure they do as well - that they did not have time to consult. However, it was in the context of when they made the commitment, how they made the commitment, and what they were trying to achieve. We were glued to our television sets all across British Columbia watching the results.
Are you really saying that Mr. Chrétien or the federal government should have done nothing? Would it have been better if he had done nothing and not proposed these measures in the context of the referendum?
Mr. Petter: Quite the opposite. I am suggesting that had Mr. Chrétien and the federal Liberal government demonstrated its commitment to social policy and social programs, and demonstrated its commitment to economic initiatives to promote job creation, it would not have had to fall back at the last hour in Quebec on old constitutional solutions in order to try to solve a situation that requires much more serious and concerted action than that.
While I do not disagree with you, senator, that we have come a long way, the current initiative is a step back. I thought we had come so far in this country that constitutional change could not be contemplated without meaningful consultation with the provinces. This initiative would suggest otherwise. I thought we had come to the point that the federal government would understand that it is not wise to push ahead with constitutional provisions that are opposed by the Government of Quebec and two other regions. Apparently, that is not the case.
This initiative is not in the spirit of the progressive change that you see in the country. In fact, I believe it rather cuts in the opposite direction.
Senator Marchand: As a senator from British Columbia, my phone was ringing off the hook when my province was not recognized in the original proposal. You should have heard the comments that were made to me, as a senator from British Columbia, about not being included as a region and why we were not a region. Of course we went to the Prime Minister and to the Minister of Justice, and you know the result. I am happy about that result. However, I can understand the fundamentals with respect to it.
You understand, certainly, that down the road, consultation will take place with the provinces. A constitutional meeting will take place in 1997. Of course, British Columbia will be around the table and there will be consultation. These measures must be viewed in the context in which they were put forward and the very difficult time and the very difficult situation in which they were put forward.
I would like some advice on process. Some of the columnists and commentators out our way have been talking a lot about process, for instance, a constituent assembly. What do you think about process? What do you think about a constituent assembly, taking into consideration what happened to the Meech Lake Accord and taking into consideration what happened with the Charlottetown Accord?
Mr. Petter: Let me first respond to some of the remarks you made. Notwithstanding the fact that I agree with your initial statement that B.C. has moved ahead, I think what was so shocking to British Columbians about the original proposal was the fact that B.C. was lumped in with prairie provinces and apparently was not recognized as having an independent identity. That was shocking, and it did produce a strong reaction.
That strong reaction was, I think, geared at that insult. The underlying injury remains; that is, it is not in British Columbia's interests, and I would argue not in Canada's interests, to straitjacket the Constitution, and certainly not to do so unilaterally.
On your question about constitutional change, the position that we have taken, which mirrors incidentally the federal government's position before it deviated from it in recent months, is that the way to foster national unity at this time, particularly in the face of a separatist government in Quebec, is not to lead with constitutional solutions but to start building credibility around other issues. I have stated in my presentation how the federal government can proceed to do that.
As we move toward 1997, I would certainly say that, yes, we must look at measures which are inclusive and draw in Canadians. It would be nice to start with the provinces. Beyond that, other mechanisms of bringing citizens into the process are essential. We have seen in the past how citizens have reacted where they felt left out. I do not have a position about whether a constituent assembly would be the best means to achieve that. There are arguments pro and con.
The thrust of our presentation is that the Constitution should await progress on these other issues where we can demonstrate some real movement ahead, even in the face of a government in Quebec that is hostile to constitutional change.
Senator Austin: As a supplementary question, I want to build upon what my two colleagues from British Columbia have said. Senator St. Germain talked about the essential principle of building national unity. Of course, we are talking about the substrata of how we do that.
Senator Marchand spoke about the measures that the government and the Prime Minister took in the last week of the campaign in Quebec, which have resulted, in part, in Bill C-110.
In your presentation, your paradigm is one of treating of Quebec, in its current state of political leadership, as a member of the debate on how to amend the Canadian Constitution. The underlying premise of your remarks is that there is a basis for national unity in negotiations with the province of Quebec. Frankly, I do not see that. Having listened to Mr. Bouchard for such a long time, and having seen his very clear declarations of his purposes, the inarticulate premise of what you say - namely, that we can negotiate with the government of the province of Quebec - is not a reality.
What we are really playing with here is a debate between citizens of Canada - that is, a debate between citizens of Canada in Quebec and citizens of Canada elsewhere - about the future choice of Canadians who are now in Quebec. What must be done, and what the government is seeking to do with Bill C-110, is that the issue must be taken to the voters in the province of Quebec. They must be dealt with directly in terms of where Canada is going and what their choices will be.
You may or may not agree with what I have just said - and I would invite your comments - but whatever way you comment, I would ask you in addition to state the position of the province of British Columbia with respect to the issue of distinct society and the issue of the Government of Canada, representing all Canadians, taking an activist and direct role with the people of Quebec.
Mr. Petter: Your inferred assumption of my presentation is categorically wrong. I do not take the view that it is possible at this time to pursue constructive constitutional change in the face of a separatist government in Quebec. Indeed, that is the essence of my submission. The very reason the federal government ought not now to be pursuing constitutional change is because it is an area in which there is little prospect of success, given the position taken by the separatist government of Quebec. It is for that reason that we argue strenuously that progress should be shown on other issues on which the federal government can establish its credibility without necessitating that degree of cooperation.
I would also argue that the fact that the province of Quebec takes an obstructionist position with respect to constitutional change is not a reason to abrogate the Constitution. In 1982, it was the insistence of the federal government at that time to proceed, notwithstanding opposition from Quebec, that gave rise to some of the sentiments that we must deal with today. This perpetuates that view. To proceed with a proposal to supposedly recognize a veto on the part of the province of Quebec, in face of the opposition from the government of Quebec, is a strange way of stating a message of respect for the people of Quebec through their duly elected government.
The very opposite is true. The very point you have made, senator, is the one that I would urge upon you. In the face of Quebec's position on constitutional change, now is not the time for the federal government to try to pursue unilateral or multilateral change. Unilateral change will only be seen as an insult within Quebec, and multilateral change will not be successful.
However, we can lay the groundwork, through goodwill and cooperative action, to reach out to those in Quebec who have a federalist mind to show those in Quebec, as we get closer to 1997 and into subsequent discussions in Quebec, that there is an appetite in the rest of Canada to deal with these issues - both Constitutional and non-constitutional - should there be an appetite in Quebec to do so.
It is that foundational work that we are arguing needs to be done. It is best done not by focusing on the Constitution, wherein lies the greatest degree of division and prospects for lack of productivity, but by recommitting ourselves on issues in which Quebecers, British Columbians and all Canadians want to see the federal government play a central role - that is, protecting our social programs and ensuring that job creation is the fundamental objective of national economic policy.
With respect to the notion of distinct society, the position of British Columbia has been and remains that we certainly do not quarrel with the notion of distinct society if, by that notion, we mean a Quebec in which there is recognition of the fact that Quebec has had a dominant French language, a civil code, and those essential non-controversial elements. However, if distinct society means more than that - that is, if it is an invitation to exercise special status or special powers - then British Columbia is clearly opposed to that variant of distinct society.
Senator Austin: Given that answer, is it your position that the federal government's introduction of Bill C-110 and the offer of a veto to the province of Quebec indirectly through the measures contained in Bill C-110 is not of significance at this time in influencing people of a federal disposition in the province of Quebec to reaffirm that federal commitment?
Mr. Petter: It is our view that it will foster disunity insofar as it is not likely to solve the concerns of federalist-minded Quebecers or the government of Quebec. It will also cause considerable damage to some fundamental principles around which the rest of the country are committed. The underlying principle of provincial equality, which was adopted as part of the constitutional amending formula of 1982, is sacrificed in this ill-considered process in favour of four different levels of provinces.
As a result of this process, we are now treating provinces as first class, second class, third class and fourth class. The resultant damage of that in the long term, plus the strait-jacketing of the Constitution, will exact huge consequences to national unity.
On the other side, yes, it is our submission that this proposal will do little, if anything, to foster national unity in Quebec.
Senator Austin: Can you have it both ways? You said during your comments that the fact that Quebec did not receive a veto in 1982 was something for which to criticize the federal government. The fact that we are offering a veto to Quebec via this method in Bill C-110 is something for which to criticize the federal government.
Is it your position that under no circumstances would the province of British Columbia, in constitutional talks, offer Quebec a veto?
Mr. Petter: I was trying to point out that it is passing strange to me that the federal government would try to represent this package as somehow providing reassurance to Quebec as to their ability to exercise a veto when Quebec, through its government, has indicated its opposition to this package. That contradiction strikes me as undermining the very proposition it is trying to put forward.
British Columbia and other provinces must look at the issue of how we approach our amending formula in 1997 - and we are prepared to do so - and consider a number of options.
Senator Austin: Are you categorically opposed to the veto for Quebec, or are you willing to negotiate, in 1997, to give Quebec a veto?
Mr. Petter: Quebec currently has a veto over constitutional change with respect to the amending formula through unanimity provisions. Quebec also has certain rights with respect to opting out of certain provisions. We need to look at all of those provisions when the time comes, but now is not the time.
[Translation]
Senator Rivest: First of all, let me say that I share your views on the proposed amending formula for a very simple reason, provided that the Parti Québécois government does not take part in any constitutional conferences before the end of its mandate, which is sometime in 1998 or 1999. I fail to see of what immediate interest it would be to the Quebec government to obtain a veto over the amending formula. I have been associated with a number of such discussions in Quebec and I share your view that insofar as amending formulas are concerned, we would be better off abandoning the idea of a regional veto, not only for Quebec's sake, but the sake of the other Canadian provinces. We would be better off taking the approach adopted in 1982, even if it means bringing in the question of institutions, opting-out formulas and financial compensation. This is something we did when I was working for Mr. Bourassa at the time of the Charlottetown Agreement.
Secondly, you said that one of the most important things that the government of Canada must do is restore its credibility because a national unity crisis is looming. Although tension exists in other regions of Canada, the problem is fundamentally with Quebec. Should we do something special for Quebec, given that this is where the problem resides, in the course of the coming years? I have to say that in order to sway people in their support for the sovereignty option, it will not merely be enough for the Canadian government to strengthen its credibility and performance when it comes to job creation or the preservation of the social safety net which is so dear to Quebecers, not only to sovereignists, but also to federalists. This is a fundamental value of Quebec's society, one that is shared with other Canadians.
Therefore, it is not simply enough to restore the credibility of the Canadian government. We need to do more than just tinker with the amending formula which will not change a single vote or opinion in Quebec today. In any case, we do not need the amending formula to deal with the national crisis.
In your opinion, based on your analysis of the position of the British Columbia government and of Canadians living in this region, what more should we be doing to deal directly with the Quebec problem and the fallout from the referendum in which 50 per cent of Quebecers rejected federalism? What should we be doing for Francophones in terms of safeguarding their language and culture, the components of a distinct society, given that close to 60 per cent of them voted for the sovereignty option? We are not dealing with a phenomenon or with a problem confined to a few crazy, hair-brained individuals. We are dealing with an extremely profound social problem. I simply want to point out to you that all Quebecers and all Canadians want the government to manage its operations efficiently and to preserve the social safety net. However, this has no direct bearing on the national crisis or on the identity crisis that we have. Within the federal system, Quebeckers are struggling to define their own societal model, one which corresponds to their values. I am interested in hearing your views on this subject.
[English]
Mr. Petter: Senator, you talk about the commitment to the federalist system. I do not presume to have your knowledge of Quebec and its circumstances; however, it seems to me that the leadership and credibility of the national government generally, and particularly on matters that help to form a Canadian identity, are very much related to the issues of unity not only in Quebec but also in British Columbia.
It may well be true that all concerned Quebecers will not be satisfied with measures to restore confidence in the federal presence through national social policy and maintenance of national social standards. They may not be swayed by a demonstrated federal commitment to job creation and a strong economy. However, these efforts do reinforce for Quebecers and for all Canadians the raison d'être of a federal government which is uniquely positioned to protect interests close to them in their lives.
It is no secret that the preoccupation with the Constitution over the past number of years has been very divisive. One of the reasons I went into politics was to absent myself from that preoccupation, but it seems one cannot escape. We need to take a pause from that preoccupation and focus on issues which are not divisive, on initiatives which may build ground toward further solutions, and on identifying a sense of shared national purpose.
The federal government's presence and commitment on social policy and on economic policy are important. My understanding of the discourse during the referendum campaign in Quebec was that it focused, to a considerable extent, on social policy, on who best was able to protect the social programs and who best was able to protect the economy of Quebec. The federal government was considerably hampered in its ability to convince Quebecers that it was uniquely positioned to protect those programs in that economy because of the measures it had undertaken in the previous two years.
I do not want to pretend this will address all the problems. However, it is necessary to regain moral authority and credibility and to lay the groundwork for dealing with further solutions.
As a second point in response, senator, I hope it is understood around this table that national unity will not be fostered by a preoccupation with one province alone. Certainly, Quebec has its own concerns, and those concerns run deep, but so does British Columbia. If anything, over the last four months, I hope the federal government has recognized that it cannot take British Columbia or any region of this country for granted. Not only can national unity not be done unilaterally, but also it cannot be done bilaterally either. It has to be done multilaterally involving all provinces.
British Columbia's grievances are founded on a number of issues. I have outlined some of those with respect to discrimination. If we do not resist the notion that this issue involves Quebec alone, we will do more damage to national unity in the long term than we can overcome.
There are activities to be undertaken beyond those I have outlined. I have talked in my remarks about providing, within the current constitutional framework, greater autonomy for the provinces. That is an issue in which B.C. and Quebec share some common ground; it begins to speak to the jurisdictional and identity issues which you speak of, senator.
In the area of labour market training, Quebecers and British Columbians would like more provincial scope to create programs which are responsive to the particular economies and communities of those two provinces; yet the federal government has been, even in that area, half-hearted in its willingness to recognize a degree of autonomy within an area of existing provincial jurisdiction.
I would say providing greater scope for provincial autonomy to those provinces that seek it in areas such as labour market training is one such measure.
It would also be useful for the federal government to show greater leadership in articulating the consequences of separation. One of the difficulties which we all face in this country is that we have not looked squarely at the real consequences of separation for Quebec or for the rest of Canada. To articulate those and their economic and social consequences would be a constructive exercise in presenting a real choice to all Canadians about our future.
Senator St. Germain: You left out the word "tinkering". This may be an Ottawa mentality, but there is a feeling that another referendum may be right around the corner. There is the possibility of a Quebec election. There is an urgency in the hearts and minds of people at this end. How do we deal with that?
You are talking about an osmosis effect that will take a long time to get through. To be fair to the government, that is the concern that they are attempting to deal with and must deal with quickly. Social programs and job creation will be long in coming.
Mr. Petter: I think what Quebecers would likely want to hear is the same thing that British Columbians would want to hear - that is, when we get to discussions around constitutional and jurisdictional issues, there will be an appetite to deal with changes on a constructive basis that are sought by each of those jurisdictions. I am not suggesting that we bury our heads in the sand, but that we lay the groundwork for the next decision out of Quebec or the rest of the country on these issues by showing a willingness and ability to work cooperatively to effect change. We must strengthen the role of the federal government in some areas. We must provide greater provincial autonomy in other areas. We must deal with long-standing grievances.
In other words, when we enter a position as a country in which Quebecers have to make a choice, the federal government can say credibly on behalf of the rest of Canada, "Yes, there is an appetite, a willingness and a track record of working cooperatively, and should there be a willingness in Quebec, through a federalist government, to participate in constitutional discussions, then Quebecers can be reassured that that opportunity will not be squandered." Better that than proceeding unilaterally with proposals that are not supported within the province of Quebec by the Government of Quebec, proposal which do not have a sound basis in the existing Constitution and which only make it more difficult to effect constitutional change. How can the federal government credibly go to Quebec or British Columbia in the face of this proposal and say that constitutional change is more likely when the effect of this proposal is to dispense vetoes to other jurisdictions to prevent that change?
Senator Beaudoin: Mr. Petter, you outlined why you object to Bill C-110. On the other hand, I understand that you do not want to return to the Constitution of Canada. You are using a phrase that is very often used in this country, "Quebec is not interested in constitutional amendments." That is one way to look at the facts.
If ever Quebec becomes an independent country, it will be quite a constitutional change, not only for Quebec, but also for the rest of Canada. I think we cannot discard the idea of constitutional reform; whether we like it or not, it will come. If it does not come, I am not optimistic, to say the least. That is the understatement of the week. It is altogether another thing if we try to reform the Constitution of Canada in such a way that Quebec would be interested in remaining a part of Canada.
You said that you are against the theory of five vetoes. What do you suggest? We will have to deal with this question of the amending formula. I know that Quebec is not satisfied with the amending formula. It is perhaps not the most important thing, but it is important. We must look at it right away. Whether we accept Bill C-110 in principle or not, we will have to dig into this matter more deeply. We will not have much time to do so. If we talk the same way as we did in 1982, there will be no solution. We need a measure of creative imagination in this country. We must propose something and discuss it between the provinces and the federal government. If we do not do that here in this Parliament, citizens will do it in our place. It is a disgrace for us not to do something.
What do you suggest? I understand the preference of one person for one formula or another, but I do not understand how you can leave the problem in limbo.
Mr. Petter: I do not think I suggested that we leave it in limbo. I am suggesting that the federal government adopt the strategy that it originally set for itself and abandoned. That was a strategy of not leading with the Constitution because there is a maximum potential for division and disunity at this time, in my view, but rather to lead in areas in which the federal government can establish itself and its credibility in the eyes of all Canadians. Certainly, it is not to make the Constitution less flexible unilaterally, as this provision would do; it is to build towards the 1997 constitutional meetings that must take place and that will focus on the amending formula in a concerted and constructive way and to lay the groundwork for those meetings.
I appreciate the point that you would perhaps like to see certain changes and offer certain solutions, senator, but I am not sure that Canadians are of a mind at this time to come to agreement on those issues. That does not mean they will never be of a mind to do so. Indeed, I believe that if progress can be shown on issues within the existing constitutional framework, they will be of a mind to do so. I think most Canadians care deeply about national unity and want to work to secure it. However, I think that they are also troubled by the fixation that occurs on the Constitution as the only device or major device to resolve those issues. We end up in symbolic struggles while substantive policies are ignored.
As I understood Mr. Chrétien's vision, it was to put the symbolic struggles to one side, heal ourselves, and demonstrate leadership where we could on the substantive issues. I suggest that that is the way to build toward what will inevitably be further discussions on the Constitution in the years ahead. Through action, we must demonstrate to Quebecers, particularly federalist Quebecers, an appetite to work in a cooperative and concerted way, but not through quick fixes or "unilateralism" and not through inserting even greater inflexibility into our Constitution.
Senator Beaudoin: I agree with you that this country may be better governed. It is obvious that this is the way life is going, but to think that in having a better policy in such and such a field we will solve the basic problem of this country at this time of our history is dreaming in technicolour. Of course we should have the best government. We should have the best policies on everything. We all agree on that. It would help a lot, but it will not solve the basic problem. The basic problem is that we need creative imagination to offer something to Quebecers in order that they may say, "We have very good reasons to stay Canadian."
Federalism was invented, in my opinion, mostly by Cartier at the time of Sir John A. Macdonald. Cartier was in favour of a legislative union. Cartier said, "No, it will not work; it must be a federal government." Indeed, at many times in our history, Quebec has been a leader in the field of federalism.
Today, there is a big problem. It may be solved, but we must consider it as it is. This is my thesis. We have to do it.
Mr. Petter: Many citizens in British Columbia, as well as elsewhere in the country, would have more faith in the ability of governments to deal with structural and constitutional issues if they saw a real commitment to deal with substantive policy issues in advance. There are plenty of areas - and I have outlined some - in which the federal government can move now to demonstrate to Canadians from sea to sea why it is essential to maintain a strong national presence through social and economic policy. There are areas in which the federal government can demonstrate a willingness to accommodate the desires of British Columbia and Quebec to have more autonomy within the existing constitutional framework by doing no more in some areas than recognizing provincial jurisdiction.
There are areas in which the federal government can demonstrate some commitment to national unity by eliminating the discrimination that exists in the way in which funds are dispensed through social programs from province to province. If the federal government does not demonstrate, in areas in which it can act, a willingness to take national leadership, then I think citizens will remain profoundly sceptical of its ability and commitment to do so in the areas of the Constitution.
Senator De Bané: Mr. Minister, frankly, I do not think that your assessment of the attitude of the provincial governments reflects reality. Are you not troubled that, except for your government, no other provincial government has accepted the invitation of this committee to appear before us to give their opinion about this bill?
Mr. Petter: I am more troubled by the fact that, in spite of the fact that three provincial governments, all of whom effectively exercise a veto under this proposal, have opposed this bill, the bill continues to be pursued.
Senator De Bané: All the provinces, save yours, said: "We need not bother appearing before you."
Mr. Petter: Provinces always have a certain reluctance to appear before Senate committees.
Senator De Bané: I wonder why you are incapable of seeing what is so obvious; that is, that there is something to be drawn from their absence here. Although I am very tempted to say more, I will refrain.
I understand that one of your areas of expertise is the history of the Constitution of this country. I am appalled to see how your personal vision of the constitutional history of this country has permeated the presentation of one supposedly an expert on the issue.
Let me remind you of what one of your colleagues in this area has told us in the past. Professor Peter Russell from Toronto said that the problem with our country is that in 1967 three visions of this country clashed.
There was the vision of John A. Macdonald, who was pursuing an unitary state and finally settled for a senior government and junior governments. There was the vision of the four provinces in 1867 which were looking for a partnership between four equal provinces. There was the third vision that it was a pact between two founding people: the English and the French.
Peter Russell said that the problem is that it was not then settled which of those three visions should be the driving force behind the birth of this new nation. He said that 125 years later, we have not yet resolved that issue.
I wish to tell you, an expert in the history of the Constitution of this country, that while you and many other Canadians think that there is only one view, that being a pact between 10 equal provinces, you must understand that other people have other visions and we have not yet settled among us which is the right one.
Finally, your province is a signatory to the Constitution of 1982. In that Constitution of 1982, to which you have subscribed, there is a provision about education in the official minority language. That section has been interpreted and expanded by the Supreme Court of Canada.
When, Mr. Minister, do you think your government will fully implement that new section in our Constitution as interpreted by the Supreme Court of Canada?
Mr. Petter: Mr. Chairman, the senator may choose to disparage my remarks, if he so wishes. However, I believe I am speaking on behalf of the vast majority of British Columbians and have expressed their sentiments. I do not think it is helpful for the federal government to disparage those points of view and discount them, as I heard the senator do.
Senator De Bané: No, sir, I did not.
Mr. Petter: That is what I heard.
In any event, no one is denying that there have been and continue to be differing views and differing visions of the Constitution. I object to the federal government's belief that it can reconcile those differing views unilaterally without consultation with the provinces in a way that I think is fundamentally disunifying rather than unifying.
The point I made in my presentation was with respect to the amending formula. The amending formula, which was not an inconsequential part of the 1982 Constitution, was much discussed. The provision for regional vetoes was considered and rejected at that time in favour of a provision which accorded provinces an equal role through the 7-50 formula. For the federal government to now take upon itself the displacement of that formula, and to revert to a formula that was explicitly considered and rejected, is, in my view, not only counterproductive but high-handed in the extreme and does not show a regard or understanding of how to build national unity.
I do not disagree at all that the Constitution reflects competing visions; yet I strongly believe that we do not resolve those difficulties by the federal government unilaterally displacing constitutional provisions that were agreed to on a multilateral basis and imposing a single vision of its own.
On the last point, the province of British Columbia has been working in a concerted way with francophone parents to establish a mechanism to ensure that francophone services are provided in a way which we will accord with the Constitution. Progress is continuing in the implementation of those proposals.
Senator Carstairs: The unilateral action of the federal government in adding a layer, if you will, to the process of amending the Constitution was also an action, was it not, taken by the province of British Columbia? British Columbia added to their veto power, if you will, or their approval of being one of the seven out of ten, plus 50, a referendum proposal, which binds the legislators of that province with respect to how they would vote.
If that layer can be added unilaterally by a province, what constitutional argument would you give as to why the federal government could not do the same thing considering that this is not a constitutional amendment but rather, like your referendum bill, simply a bill of the House of Commons and Senate like yours was a bill of the British Columbia legislature?
Mr. Petter: I would argue that the comparison does not hold. Through its referendum bill, British Columbia has provided a mechanism whereby the Government of British Columbia consults with British Columbians in carrying out its constitutional mandate on constitutional decision-making.
The federal government proposes to essentially delegate its authority to other levels of government through a regional veto, thereby abrogating its responsibility.
I am sure that you will hear from many constitutionalists - and I am here today representing the province, not as a constitutionalist - on manner and form requirements. It is my submission that the B.C. requirement fits well within the argument that that is a manner and form requirement to facilitate the provincial government to do what the framers of the Constitution in 1982 expected governments to do: to consult their citizens in reaching decisions on constitutional amendment.
I would argue equally strongly that this provision runs completely at odds with what the framers of the Constitution in 1982 intended. They clearly did not intend a regional veto. They did not intend the federal government to fetter its discretion or delegate its authority in this way because they considered these very approaches and rejected them. I think the two are quite different and cannot be compared.
Senator Carstairs: I would suggest that B.C. broadly consults via its referendum bill. The federal government is broadly consulting via use of this particular piece of legislation.
Mr. Petter: I suggest that if B.C. passed a law delegating its authority to pass constitutional amendments to the Yukon and Northwest Territories, you might see the difference.
The Chairman: I wish to extend our thanks to the minister from British Columbia.
The committee adjourned until 2 p.m.
Upon resuming at 2 p.m.
The Chairman: Honourable senators, it is my honour and pleasure to welcome to our hearings the Minister of Justice and Minister of Intergovernmental and National Constitutional Affairs for the government of the Northwest Territories, the Honourable Stephen Kakfwi.
Mr. Minister, you may wish to introduce your colleagues and then make an introductory presentation to be followed by questions from the members of this committee.
The Honourable Stephen Kakfwi, Minister of Justice and Minister of Intergovernmental and National Constitutional Affairs, Government of the Northwest Territories: Thank you, Mr. Chairman. With me today are the Principal Secretary to the premier, Mr. Don Avison, and Legal Counsel for the Government of the Northwest Territories on National Constitutional Issues, Mr. Bernard Funston.
Mr. Chairman and senators, I wish to thank the committee for inviting us and allowing us to make a presentation on Bill C-110, the bill respecting constitutional amendments. The bill moved very quickly through the House of Commons and its committees. We were unable to make our views known at that stage. Therefore, we welcome the opportunity to do so now.
I do not intend to speak today about the other elements of the Quebec package announced by the Prime Minister on November 27; namely, the recognition of Quebec as a distinct society and the devolution of labour market training responsibilities.
I do want to speak a little bit about the traditional demands of this government in regard to the amending formula. Some members here have already heard our presentations on the amending formula. For example, Senator Beaudoin heard our views on the amending formula in 1991 when he co-chaired the Beaudoin-Edwards committee.
As well, when he was the senior advisor to former Quebec Premier Bourassa during the Charlottetown Accord, our officials spent several hours with Senator Rivest to explain why we do not believe the interests of provinces like Quebec can be harmed by territories or new provinces, even under the existing amending formula. We do not accept that Quebec or any other province should have a veto over territories achieving full partnership in the federation of Canada.
Senator Pat Carney, a former resident of the Northwest Territories, has spoken very well in the House of Commons about the treatment of the territories and the amending formula. She can confirm that the Northwest Territories is not a branch or division of the Department of Indian and Northern Affairs, no matter what some people in that department might think. The Northwest Territories is an exciting and rapidly growing region of Canada, with its own distinct, democratically elected government.
When Minister Rock appeared before the House of Commons committee on Bill C-110 last December, he stated that the 1991 Beaudoin-Edwards committee report on the amending formula had contributed to the formulation of this bill, at least to the extent that it endorsed a version of the so-called "Victoria formula". I believe he made several similar statements on this point to you yesterday.
Unfortunately, the good minister did not mention what the Beaudoin-Edwards committee recommended in relation to the status of the territories in constitutional processes. I believe it is important to read into the record some of these excellent recommendations. For example, in regard to territories, one of the recommendations was as follows:
We recommend that the extension of existing provinces into the territories require the consent of the legislature of any territory and any province affected, and the Parliament of Canada.
A recommendation with regard to the creation of new provinces reads:
We recommend:
a) that the creation of new provinces in the territories require only the consent of the legislature of any territory affected, and the Parliament of Canada; and
b) that it be recognized that the creation of a new province may change the equilibrium within the federation and may require review of the existing amending procedure. Should the addition of a new province require a change in the amending procedure, such change would be governed by the amending procedure in effect at that time.
A further recommendation in regards to territories reads as follows:
We recommend that the territorial governments be invited to participate in all future constitutional conferences.
With regard to referendums we see the following recommendations:
We recommend that a federal law be enacted to enable the federal government, at its discretion, to hold a consultative referendum on a constitutional proposal, either to confirm the existence of a national consensus or to facilitate the adoption of the required amending resolutions. The referendums should require a national majority and a majority in each of the four regions (Atlantic, Quebec, Ontario and the West).
The territories would participate in the referendum, after having selected the region in which they would be included for the purpose of calculating regional majorities.
You may also be aware of what the Charlottetown agreement said on these same issues. I believe that the federal Liberal Party, the present government, supported this agreement in the House of Commons in the fall of 1992. Here are a few highlights from the Charlottetown Accord that I believe are relevant:
A provision should be added to the Constitution requiring the Prime Minister to convene a First Ministers' Conference at least once a year.... The leaders of the territorial governments should be invited to participate in any First Ministers' Conference convened pursuant to this constitutional provision.
In regard to the establishment of new provinces, the Charlottetown Accord recommended that:
The current provisions of the amending formula governing the creation of new provinces should be rescinded. They should be replaced by the pre-1982 provisions allowing the creation of new provinces through an Act of Parliament, following consultation with all of the existing provinces at a First Ministers' Conference. New provinces should not have a role in the amending formula without the unanimous consent of all of the provinces and the federal government, with the exception of purely bilateral or unilateral matters described in section 38(3), 40, 43, 45 and 46 as it relates to 43, of the Constitution Act, 1982....
The provision now contained in Section 42(1)(e) of the Constitution Act, 1982 with respect to the extension of provincial boundaries into the Territories should be repealed and replaced by the Constitution Act, 1871, modified in order to require the consent of the territories.
To summarize, as recently as three and a half years ago, the federal government and all provincial governments had agreed on two points of fundamental importance to the territories: first, territorial participation in First Ministers' Conferences on the Constitution was acknowledged and confirmed, at least at the highest political level across this country; and, second, the need for territorial consent for certain constitutional amendments which fundamentally affected our role and status in the federation was acknowledged and confirmed. Examples are in establishing new provinces and the changes of provincial boundaries.
We acknowledge that the Charlottetown Accord did not pass, but if Bill C-110 derives its inspiration from the Victoria Conference of 1971 and the Beaudoin-Edwards report of 1991, why is it not appropriate to go back just three or four years for some principles on the appropriate role for territories on constitutional amendment processes?
What accounts for the apparent reversal of fortune, at least in our impression at this time, in regard to Bill C-110? We find no good answers to this question. Therefore, we think it is fair and reasonable to ask that the problem be corrected; and ask you and encourage you to amend the bill accordingly. I will propose a reasonable amendment. However, I have a few more comments on process issues. I also want to raise some questions about the bill and what I believe it symbolizes.
I have the following points to raise concerning the process issue:
First, while we all understand and personally felt the trauma caused by the October 30 referendum, we have concerns about the unilateral federal government initiatives which are aimed at addressing Quebec issues in isolation. In our view, Canada must face not just Quebec issues, but national unity issues. The response in British Columbia, for example, to Bill C-110 makes that very clear. Achieving and maintaining national unity will take all of us.
Second, the Government of the Northwest Territories does not expect a provincial-type veto over a wide range of constitutional amendments, but we do expect a role in any constitutional amendment discussions and processes which could directly affect the territories. The 1997 constitutional conference that is required by section 49 of the Constitution Act of 1982 is a case in point where the territorial governments must represent territorial interests. The amending formulae, as they relate to matters such as the creation of new provinces, the extension of provincial boundaries into the territories, and aboriginal constitutional matters, obviously affect us directly.
The Government of the Northwest Territories has actively supported the position of aboriginal organizations regarding their role in constitutional matters, and we continue to advocate and support a meaningful role for aboriginal peoples in constitutional processes.
Third, there may be some who think that the Charlottetown process was cumbersome and had too many players. Those people will say, "Let us limit the issues and keep some of the players out of the game." As we know, territories are usually the first to be sacrificed in this sort of club logic. However, we do not accept and will reject this approach. National unity will not be achieved by dropping territories out of the process. We accept that political leaders must show discipline and deal with a manageable agenda of constitutional reform in 1997, and we are prepared to be constructive and intend to be an active participant in helping to find answers to unify this country.
Fourth, we want the federal government to finally support our participation in the processes of reforming the federation. As many of you are aware, the Government of the Northwest Territories has been intimately involved as a full participant in constitutional and national intergovernmental processes since our unfortunate exclusion from the Meech Lake process. The premiers of the provinces have accepted the territories at their council tables. We participate at the annual Premiers' Conferences and the Western Premiers' Conferences. Surely the federal government has some duty to support our participation in the federation on fundamental issues like constitutional amendment.
Fifth, this government continues to demonstrate in numerous intergovernmental forums, such as the Charlottetown talks, the annual Premiers' Conference, and the Western Premiers' Conferences, that we can and do make a positive contribution. We share virtually all the concerns and issues facing provincial governments across Canada during these difficult times. Our participation provides a unique northern perspective on issues, and we are the only jurisdiction in Canada which has a majority aboriginal population. Our provincial colleagues have welcomed our input, and we appreciate and respect the responsibility which involvement in these forums demands.
There is another issue upon which I believe you should reflect. The Government of the Northwest Territories is a public government elected by a majority aboriginal population. The majority of the members of the legislature and the members of cabinet are aboriginal people, and our business is conducted in a manner which increasingly tries to reflect aboriginal principles. We hope to take it even further, but what we have today is the closest thing in this country, maybe in North America, to a synthesis of public government and aboriginal self-government. We have shown the way in demonstrating how to make these things work, and a tremendous amount of progress has been made. We have shown the benefits of opening doors in order to make room for creative solutions. It is not a positive sign for us to see doors closing or to have the impression that some doors were closing that we thought had been opened after years of extensive and intensive work on our part. It does not take the form of a positive message from this government that takes much credit for recognizing the inherent right to self-government.
It is difficult to know where to begin discussing the substance of Bill C-110. There is some uncertainty about what this bill really represents. Is it good law and good politics; bad law and good politics; or some other combination? It is not possible to tell at this time.
Clearly, a veto over constitutional amendments is only relevant in the context of amending the Constitution. At the moment, no clear constitutional amendments are on the table. One thing is clear: The bill is anticipating the future. All Canadians have an interest in knowing what Ottawa is planning. Minister Massé's national unity committee is apparently constructing a package. When will we know its contents?
Bill C-110 is not an attempt to amend the amending formula found in Part V of the Constitution Act, 1982. If it were, we say it would be unconstitutional. I understand this is what the federal government is saying as well. We accept that this is ordinary federal legislation. We do not dispute this point. However, the bill is an attempt to set the stage for negotiations directed at amending the amending formula in 1997. In this context, we must examine what the bill does or does not do.
Let us assume that Bill C-110 simply regulates federal ministers in their conduct before the House of Commons. In relation to constitutional amendments, the bill will be a disincentive to the federal government putting forward constitutional reforms. The bill provides that no federal minister can table proposed amendments in relation to certain matters unless seven provinces have acted first. What are the chances of that happening?
Perhaps that is the genius behind the bill: It will discourage talk about constitutional amendment and force federal, provincial and territorial governments to seek political and administrative accommodations to revive Canada's economy. That, I believe, is wishful thinking.
The bill, therefore, seems to imply that the federal government will no longer be a leader in constitutional reform. Ottawa will be relegated to being a follower in all those categories covered by Bill C-110 because the federal government will have incapacitated itself until such time as seven provinces have acted. The federal government will only spring into action once the relevant provinces have proposed and agreed to amendments.
How will this legislation operate in practice? We believe the bill is a beacon of vagueness. It contains no regulation-making power to flesh out the mechanisms for consent. There is no indication within the bill as to how provincial consent will be obtained or measured or who will give it. Will it be a letter or phone call from the premier? Will resolutions of provincial legislatures be required? Will petitions of local party officials be satisfactory? Will there be provincial referendums? Who will be able to vote? Apparently, because we are excluded, we do not have to worry about that problem. What will happen in the case of subletting the veto, as in the case of the Nova Scotia/New Brunswick/Prince Edward Island agreement? Will the federal government honour this arrangement? What is the penalty for failing to comply with the bill? The prohibition, as we understand, only catches ministers, so presumably backbenchers are free to table resolutions.
I am sure these questions have all been raised a number of times, and the answers suggest something less than a perfect consensus about how the bill could or would operate. This is not a comforting thought given the fundamental importance of the process the bill attempts to regulate, namely, our national government's role in amending the Constitution.
How does the bill operate in relation to territories? There were questions before the House of Commons committee as to whether the word "province" in the bill meant "government of a province". I have a more basic question, namely, whether "province" includes the Northwest Territories and the Yukon Territory. The federal Interpretation Act provides that the word "province" in federal statutes is deemed to include the Yukon and Northwest Territories. If that is the case, are we covered by the bill?
We think probably not. The bill states that an amendment "...must be consented to by a majority of the provinces that includes..." It then lists specific provinces and regions which must consent. We are not on that list. The Yukon is not included in that list. Neither is either of us included or listed in any of the regions defined by the bill. The Interpretation Act adds to the confusion. It certainly does not address our concerns.
When introducing the motion in the House of Commons on November 29, the Prime Minister stated:
...the Government of Canada also recognizes that a constitutional amendment is a serious measure. It should be based on a broad consensus. No region of Canada should be excluded.
We agree with the Prime Minister, but we are nervous that our part of the map does not seem to be coloured in. Senators, we can perhaps tolerate being excluded from the weather on late night national news broadcasts from time to time. The idea that, as governments and as people, we might be excluded from the constitutional processes is just not acceptable.
The Prime Minister further stated in his speech to the House of Commons on November 29 that the federal government was "...directly inspired by the major principles of our democracy."
What are those democratic principles? Perhaps that is what the federal press release of November 27 was alluding to when it stated:
The consent of the provinces and the regions will be able to be expressed in various forms: by direct notice, by a vote in the legislative assemblies, or by referendum.
How will Canadians in the territories or the territorial governments participate in this great democracy? There is no mention of referenda in the territories or votes in the legislative assemblies for the Northwest Territories or Yukon Territory.
Parliament is a national institution, and this bill is ordinary federal legislation. On a fundamental issue like constitutional change, the bill symbolizes that it is acceptable to think of Canada in far less than the sum of its parts. The Northwest Territories and the Yukon comprise 40 per cent of Canada's land area. Canadians live there. Canada claims to be a northern nation, and yet this bill has a very blind spot for the people and the part of Canada called the Yukon and the Northwest Territories.
We know that there will be a need in the next few years for so-called "house cleaning": Constitutional amendments arising from the creation of Nunavut on April 1 of 1999. In particular, there will be a need to: one, create a Senate seat for Nunavut; two, amend section 51(2) of the Constitution Act, 1867 to entitle Nunavut to return a member to the House of Commons; and, three, amend the Charter of Rights and Freedoms to include appropriate references to Nunavut.
In our view, the first two matters could be dealt with by an act of Parliament pursuant to the Constitution Act, 1886, and would not be affected by Bill C-110. However, amendments to the Charter would be caught by the bill.
How will constitutional amendments required for Nunavut be initiated, for example, to include appropriate references to Nunavut in the Charter? Will Bill C-110 force the federal government to wait for a province to initiate these changes? In our view, federal leadership on this particular issue is necessary, and yet the apparent operation of the bill would prevent it. Has the federal government considered this issue, and, if so, how do they intend to deal with it?
In the House of Commons on November 29, the Prime Minister also stressed the "Government's willingness to use practical and essential means to protect all the regions of Canada with regard to future constitutional changes."
However, the federal press release of November 27 extolling the merits of the bill suggested that provincial power over the creation of new provinces was a major selling point of the new veto arrangement.
Clearly, Bill C-110 and the process contemplated by it could directly affect the rights of Canadians in the Northwest Territories and the role and status of their territorial government in the federation.
The federal government is prepared to lend its veto to provinces to prevent territories from participating as full partners in the federation. The federal government has not consulted the Government of the Northwest Territories in fashioning this package for Quebec, nor have they offered to consider territorial interests or concerns when developing the federal constitutional position on issues like the creation of new provinces.
The Government of the Northwest Territories must continue to speak for the residents of the Northwest Territories on constitutional issues.
The Prime Minister, in his speech to the House on November 29, stated that the veto was being given to Quebec for three reasons: because it had long claimed it; to ensure that it was a full participant in the evolution of the Constitution; and to have protection against amendments that could diminish the powers, rights, and privileges of Quebec. The Prime Minister stated:
The Government of Canada recognizes the legitimacy of those demands.
We are not claiming a provincial-type veto. However, we would like some recognition of the legitimacy of our participation in the federation for the same three reasons cited by the Prime Minister, because we also have long claimed it; we want to ensure that the territories is a full participant in the evolution of the Constitution; and we want protection against amendments that could harm our interests.
The territories are not presently mentioned in the formal amending procedures in the Constitution Act, 1982, and I would remind you that this should have no bearing on how territories are treated in the provisions of this bill.
Minister Rock himself stated that Bill C-110 does not affect the formal amending formula in the Constitution. He has been quoted by the media as saying:
This bill is neither intended to nor does it amend the constitution directly or indirectly.... It simply sets out the circumstances under which the Canadian government may support constitutional change.
I believe he confirmed this position to you yesterday.
We accept that the bill does not amend the amending formula. However, it is designed to fill perceived gaps in the formula by giving virtual vetoes to certain provinces and regions in situations where they do not now have vetoes. Why can the bill not address some of the traditional demands of the territories in relation to the amending procedures in the same spirit of innovation?
Because the bill is ordinary legislation, it must meet Charter principles. If the bill makes no provisions for territorial residents and territorial governments to participate in the processes it establishes, are you confident that this bill could withstand a Charter challenge? Is there some way to provide clarification and explanation of the principles which underlie the exclusion of Canadians in the territories from this bill?
The bill has also been described as being, to some degree, a symbolic measure. Minister Rock called it a bridge to 1997. For territories, it may be a bridge that leads nowhere. We seek an amendment to ensure that it does not mean the exclusion of the territories from the 1997 conference on the amending formula.
Senators, this government is not seeking a provincial-type veto; we are seeking a return to common sense and openness. Bill C-110, in its present form, does not bind this country together and may foreclose options in relations to the territories and aboriginal peoples. We should not succumb to a narrow vision of the country as a hierarchy of regions graded against a scale of the magnitude of their political grievances.
We propose that Bill C-110 be amended to include the following provisions:
2.(1) No Minister of the Crown shall propose a motion for a resolution to authorize an amendment to the Constitution of Canada in relation to a matter that directly affects the territories unless the amendment has first been consented to by the territories.
(2) The Prime Minister of Canada shall invite elected representatives of the governments of the Northwest Territories and the Yukon Territory to participate in the discussions of any constitutional conferences where, in the opinion of the Prime Minister, matters directly affecting the Northwest Territories and the Yukon Territory might be discussed.
In conclusion, we would like to leave you with three questions:
Do you agree that constitutional change and, in particular, formal and legislative changes to amending procedures, can have serious and direct implications for territories?
Does this bill deal fairly with Canadians in the territories and their territorial governments, and does it create a reasonable expectation that territorial governments will have a place at the table before, during, or after the 1997 constitutional conference?
Is the territories' request for continued inclusion in the constitutional processes and discussions unreasonable?
Thank you for your attention and your patience.
The Chairman: Thank you, Mr. Minister. I know my colleagues have a number of questions. Hopefully, they will also deal with your three final questions.
Senator St. Germain: Mr. Minister, you and your people have put together an excellent brief as you always do when you come to Ottawa. I compliment you and thank you for that.
There is no question that this bill raises many concerns. The concerns you have raised have been presented to me and other senators by way of a series of phone calls to our offices.
The point was made only representatives from the Yukon, the Northwest Territories and B.C. are attending these hearings, in spite of the fact that invitations were sent out to all the provinces. One senator mentioned that this is such an innocuous piece of legislation that there was no interest from the other provinces in attending, or else the other provinces had given the bill a benediction or a blessing by not appearing. That was my interpretation of what was said.
My belief is different. I believe that this bill is fraught with danger because it preempts negotiations in 1997. This is why other premiers and other governments are not showing up, in spite of the fact that you are here. It was a blatant omission to exclude you from this whole process, and I think you had no choice but to appear. I wish the other provinces had attended to give us their guidance and their views as to how they would proceed.
Given your perspective and your vast experience, would you comment on why you think representatives of these other governments have not attended these hearings?
Mr. Kakfwi: The question which came to mind - amongst other questions - following the close result of the October 30 referendum was: What are we prepared to do? What can we do to address the problem of national unity?
As a minister I thought it would be good to meet with other elected ministers at the earliest occasion to set a stage for discussing these concerns. However, such a meeting has not yet been held. It is impossible for me to read the minds of other government officials in this country. I cannot answer your question. I am sure they must have reasons for not attending these hearings, but they are not clear to me.
Senator St. Germain: The province of British Columbia made a presentation this morning. The minister responsible for constitutional affairs in the province of British Columbia brought forward the fact that he sees remedies through economic regeneration and a reaffirmation of the social programs in the country. I personally see another urgency. We simply cannot wait for this. By virtue of the fact that you feel that ministers of the regions and the provinces should have been called together, is that a reaffirmation that you see this as an urgent matter to be dealt with immediately?
Mr. Kakfwi: When we began discussions at the beginning of the Charlottetown Accord process, we went to the provinces and asked if we would be included in their meetings. We were accepted as full participants by the provinces and by the federal government of the day throughout the entire Charlottetown Accord process. I devoted eight months of my life solely to that exercise. It was not a wasted exercise for the people of the Northwest Territories because we understood that agreement and we supported it. We were one of the few governments that made a point of ensuring that our people were with us throughout that process and stayed with us. It had deep meaning for us.
We feel that, in making quick remedies to appease Quebec, we are playing musical chairs. This time around, there is no chair for us. It may be expedient, and there may be a process to give something to Quebec that will finally arrest its need to separate, but when it sounds like we will be left out and our rights and our existence ignored, we question whether that is a healthy way for any government to act. That is why we are here.
Senator MacEachen: I thank the witness for his presentation. It was very thoughtful and moderate in tone, and yet it clearly expresses concerns which have been in the minds of the governments of the territories.
Perhaps I should begin by referring to a discussion we held this morning in which one of the witnesses from the University of Montreal was very critical of this bill because it did not address all constitutional concerns. If one approaches the issue from that perspective, then it is worthy of criticism. However, the bill itself has a limited purpose. The Minister of Justice made it very clear yesterday that the bill is a response to very specific issues that were raised in the Quebec referendum and an effort to respond quickly to commitments made to the Quebec people in the referendum. The bill is limited, and because it is limited to these specific issues, it does not address a range of other issues, including the issues you have raised.
The Minister of Justice also admitted all of this and said future steps would be taken to address other concerns. He referred to the aspirations of other institutions and groups in the country and said that these would be addressed in the future.
If I approach your presentation from that perspective, my concern is somewhat abated. However, I want to ask you one or two questions on the specifics.
At the bottom of page 17 of your presentation, you say:
Clearly, Bill C-110 and the process contemplated by it, could directly affect the rights of Canadians in the Northwest Territories and the role and status of their territorial government in the federation.
My reading of the bill is that there is no provision which explicitly refers to the Northwest Territories. Therefore, I take it that you have in mind the impact which, as you put it, the lending of the veto to provinces would have on the Northwest Territories.
I therefore ask two questions: What is your present understanding of the provisions which would permit the Northwest Territories to become provinces? How do you think, in concrete terms, this bill would affect the present situation?
Mr. Kakfwi: Mr. Chairman, the press release issued by the federal government made reference to that, using the example of the creation of new provinces as one in which this bill would be used. That is why we are concerned. This may foreclose any options we have to move under the present constitutional arrangements and make the process, perhaps, more cumbersome.
I am not well versed in the technical aspects of the Constitution, but the Constitution Act, 1982 basically says that, for the creation of new a province, you require the agreement of a majority of the provinces. However, the Constitution Act, 1871 says that the federal government has the power to create provinces unilaterally. We take the view that the federal government has that power, but we would still like to have included wording, as we have said consistently, that the territory affected should consent before the federal government would move. Our preference is that it would be a unilateral power of the federal government. The 1982 amending formula or requirement is only to effect the process.
As to the creation of provinces, we would be even further excluded.
Senator MacEachen: What is your understanding of the present provisions concerning the creation of provinces?
Mr. Kakfwi: As I have just tried to explain, it is not clear because the original Constitution says that the creation of new provinces is a federal power, and the federal government can act unilaterally to create new provinces.
Senator MacEachen: Right.
Mr. Kakfwi: The requirement of the Constitution Act, 1982 for the creation of a new province is 7-50.
Senator MacEachen: Yes.
Senator Murray: And that is notwithstanding any other law or practice.
Mr. Kakfwi: Yes. That issue was raised during the Charlottetown Accord as well and people agreed that it is not clear. There are many parts of that Constitution which may be unclear, and we have sought clarification. We want the provisions of the Charlottetown Accord reflected in this bill as much as possible.
Senator MacEachen: Your argument is that the present Constitution requires 7-50, but with any provision that would lend the veto to any province it would be more difficult. That, I take it, is your point.
Mr. Kakfwi: Yes.
Senator MacEachen: I turn now to the amendments you propose. On the face of it, I do not see how the amendments address that problem. It would help me if I could see how these amendments would provide a remedy to the problem which you have described to me.
Mr. Kakfwi: Mr. Chairman, I will ask Mr. Bernie Funston to answer the senator's question.
Mr. Bernard Funston, Special Advisor on Constitutional Affairs, Ministry of Intergovernmental and National Constitutional Affairs, Government of the Northwest Territories: Mr. Chairman, proceeding from the perspective that the Constitution is presently vague, it has two relevant sections dealing with the creation of new provinces. One is the Constitution Act, 1871 which gives that power unilaterally to the federal government.
Senator Murray: That has never been repealed.
Mr. Funston: It has never been repealed and was, in fact, re-affirmed in 1982 as part of the Constitution.
Let us assume that it is a unilateral federal power to create a new province. With our amendment, Bill C-110 would ensure that territorial consent is given before the federal government can proceed unilaterally. That is something which is currently not in the 1871 act.
In the second scenario, the Constitution Act, 1982 is the act which prevails. In that scenario, at least we are in the loop with all the others and have consent.
In both cases, the amendment would cover our concern.
Senator MacEachen: You say, with respect to the first provision, that this would guarantee that the federal government would not act without your consent in making a territory a province.
Mr. Funston: That is right.
Senator MacEachen: I understand your excessive caution, but I do not see how the amendment would overcome, in any way, as you put it, the lending of the veto in the second case.
Mr. Funston: As I said, this bill cannot amend the Constitution of Canada and we acknowledge that fact. Therefore, we have dealt with the two interpretations of the Constitution. With regard to the 1871 act, you are right in that the implied effect of this amendment would be that, if Parliament cannot create a province without our consent, the business of seeking to be a province would have to be initiated in the territory, which would be what we aimed to get through the Charlottetown process and through our submissions to the Beaudoin-Edwards committee.
In the second case, if the relevant constitutional provision is the 1982 act, something that is not amended with this bill, our proposed amendment has to deal with that reality, the Constitution of Canada of 1982 being the predominant provision, and it simply includes the territories in the loop.
Senator MacEachen: But it does not.
Mr. Funston: It does, because it would say that before any province or territory or the federal government could initiate an amendment to create a new province, the territory would have to consent. The terms of provincehood would have to be consented to by the territory. They could not be imposed, for example, through provincial means.
Senator MacEachen: Suppose that provision were accepted. You would be consulted and you would say, "Yes, we want to be a province." Then suppose it is subject to 7-50. If the process is subject to Bill C-110, and the federal government lends a veto to a province which would have the effect of quashing your proposed amendment, your proposed provincehood, then this would not help.
Mr. Funston: I see your point, senator. The larger question is whether or not we can amend the Constitution of Canada, which would be the root cause of the main problem, that is, seven provinces would already be involved in the loop. We cannot correct that problem with this bill.
Senator MacEachen: Nor can you correct it with your amendment.
Mr. Funston: Nor through any amendment we put forward. Bill C-110 cannot amend the 1982 act. To do so would be unconstitutional. You are right, senator, we are splitting hairs as to whether it is 7-50 or 8-50.
Senator MacEachen: In my humble opinion, this is not a good remedy for your difficulty. However, I will look at it again.
I would make one other comment, not in an effort to be obstructive but, perhaps, to point out the pitfalls. I think this amendment is probably beyond the scope of this particular bill. It might have a chance of surviving as an independent bill. In any event, I thank you for telling me that this amendment does not solve the question of lending the veto.
Mr. Funston: What I am saying, senator, is that, because of the nature of the bill, it falls between two categories. The first is that it is ordinary legislation; and the second is that it is part of the Constitution. One has to decide which it is before they proceed.
Senator MacEachen: You have agreed that it is ordinary legislation.
Mr. Funston: We have. Having agreed, we now have to deal with the difficulty of having a Constitution that has two provisions which deal with an issue that is near and dear to the heart of the territories, that is, provincehood. As the minister pointed out, the preferred route was through Charlottetown, and those uncertainties were corrected. In our humble submission, this bill does not allow us to deal with that uncertainty in the Constitution, which is the root problem.
I agree with you. The solution, as crafted, leaves some questions. However, it is the best we could do with what we were given.
Senator MacEachen: Thank you. I know it is difficult. I wanted to see if you could point out to me the link between lending you the veto and the amendment. I have some consolation in that, perhaps, we are close to each other in our analysis.
Senator Rivest: I understand that your concern with this bill is that it does not, once again, constitute an improvement for the people of the territories.
[Translation]
I want to ask you a specific question concerning your first amendment proposal, on page 21.
[English]
No Minister of the Crown shall propose a motion for a resolution to authorize an amendment to the Constitution of Canada in relation to a matter that directly affects the territories -
I understand your goal. However, P.E.I. and Manitoba, for example, under Bill C-110 do not have the right to block or to oppose an amendment which directly affects those two provinces. Yet, you ask that there be an amendment for the territories. P.E.I. and Manitoba are part of a group in this bill. Why should it not be the same for the territories? Why do you want a veto right with respect to any subject which affects your rights and privileges?
Mr. Kakfwi: As we understand from the Prime Minister, the bill has been designed to take care of the demands of Quebec.
Senator Rivest: I come from Quebec, and I do not share your opinion. It gives nothing to Quebec.
Mr. Kakfwi: Many people in Quebec might make the same comment. I am just saying that, from reading the text of the Prime Minister, that is what I understood him to say. He said this bill is designed to take care of certain concerns of Quebec and the commitments he made during the referendum.
We are simply making the point that, if you are doing that for Quebec because they have a legitimate concern, then we have concerns as well. Include us in it.
Senator Rivest: Do you understand that, by putting your amendment in this way, P.E.I. could ask for the same advantage? They have no such consideration in the bill. P.E.I. is a part of the maritime provinces. Why should it not also apply to Manitoba? Everyone in Canada, including the territories, will have the right of veto on any amendment to the Constitution which affects their rights and privileges. It will be a very tough amending formula if we follow your suggestion.
Mr. Kakfwi: Our two concerns have to do with the extension of boundaries and the creation of new provinces.
For instance, Quebec has long stated its interest in certain islands that are now within the jurisdiction of the government of the Northwest Territories. We have been aware of this interest for years. We take the view that the Constitution should be amended to ensure that a province cannot lobby the federal government to act unilaterally to change provincial boundaries without consulting and receiving the consent of the territory affected. That is what the Charlottetown Accord proposed. However, the people did not vote for it in the numbers that we hoped.
When this bill came forward we saw that there was no mention of us whatsoever in it. There are no assurances concerning the political gains we have made. There is no assurance that Quebec will be in the room with the other provinces and the federal government in these constitutional talks.
The matters of the creation of new provinces and the extension of provincial boundaries are elements which could be affected by this bill. We have no assurances in this regard. There is no mention of us in the bill. It is not a perfect bill. I do not think anyone has ever said that it is. We try to be consistent in the things about which we seek assurance.
Senator Carstairs: I wish to focus specifically on the two amendments that you propose. As you know, there is a formal amendment process to be taken with respect to amending the Constitution, which has been the primary way in which we have amended the Constitution in the past. Sometimes there has been judicial interpretation, and sometimes custom and tradition have prevailed.
After the experience at Charlottetown and the attendance of the territories, do you honestly believe that any government in this country would hold another constitutional conference and not invite the representatives of the Northwest Territories and Yukon?
Mr. Kakfwi: That is a good question, Senator Carstairs. The difficulty is that this is a political game which we play. You know it is a good game, and an honest one.
You have seen casualties over the years. The biggest one is Quebec and its grievous treatment, at least in its perception, by people who are supposed to have a chair for it in constitutional discussions. It perceives itself as having been excluded from the patriation and from the midnight talks a long time ago. Quebec is mentioned prominently in the Constitution. We are not.
Anytime constitutional talks or amendments come up we say, politically, that we are included at this time. For greater assurance, I guess we would like a membership card. We do not have that.
This bill makes absolutely no reference to the Charlottetown Accord, but it does mention the Victoria principle, which occurred a long time ago. We wish it would build more on the achievements that were made, at least politically, in the course of the Charlottetown Accord.
Senator Carstairs: Any government that would choose not to invite the territories to another constitutional conference would probably be guilty of a certain amount of political suicide.
Clearly, your position has been made clear and it has been respected.
When you use the phrase "that directly affects the territories", are you referring only to the admission to provincehood, or are there other areas that you would include under that concept of "directly affects the territories"?
Mr. Kakfwi: I will give the second part of your question to Mr. Funston. Concerning the earlier point you made, namely, that we should feel comfortable because who in his right mind would exclude us, I would be happy to get assurance from the Prime Minister, or even from the Minister of Justice, on that point.
Senator MacEachen: Is Senator Carstairs' assurance not good enough? Why not accept her word?
Mr. Kakfwi: Perhaps if the two of you joined together it would have added weight.
Senator MacEachen: We will agree with her.
Mr. Kakfwi: I would be quite happy if the Prime Minister said, explicitly, that we are part of the family and we will be there.
Mr. Funston: On the question of what it would potentially directly affect, there is some uncertainty. I understand Minister Rock was here yesterday but did not shed any light on the sort of examples of matters that would be covered by the bill. The two obvious ones would be the creation of new provinces and the extension of provincial boundaries into the territories.
A third is mentioned in our submission, namely, a Charter amendment, for example, to include Nunavut in references in the Charter, if the spirit of the bill is applicable to all kinds of amendments to the Constitution. The federal press release mentioned national institutions and two examples were given: The creation of a new Senate seat, and ensuring MPs for Nunavut. If those were made in advance of 1999 when Nunavut springs into being, and the federal government chose to use a resolution process instead of its unilateral power, then those would be caught as well.
To address Senator Rivest's point of getting more than P.E.I., that is not the case. P.E.I. and all the other provinces, under the 7-50 formula, have the opting-out power, the so-called "negative" veto, if there is anything that affects their powers, rights or privileges. You have that in the Constitution.
This gives to the territories a legislative equivalent. But it is not a legislative equivalent if you take the point that the federal government still has the discretion to act as it sees fit in the appropriate circumstance. It is probably inaccurate to say that we get more than P.E.I. through this bill, because this bill gives provinces a veto on matters that do not directly affect them now. That was the point of the bill. They are already covered under the Constitution. Under section 41 they have a veto, and they have a negative veto under section 38(3).
Senator Carstairs: Please excuse my ignorance about the history of the territories. Clearly, they have not imposed provincehood on you, because you are not provinces yet. Can you give me another example where the federal government, via the Constitution, has imposed new powers or taken powers from the territories without the consent of the territories?
Mr. Funston: The Constitution Act, 1982 did that when it imposed the new amending formula. It changed the convention, if you want to call it that, whereby a territory could petition the federal government for creation of a new province. This was done in the prairie provinces in the 1870s. In other words, it threw a cloud over the 1871 act that we mentioned earlier. That was done in the face of objections by the territories at the time that the amending formula unfairly appeared to give a provincial role in the creation of a new province where it did not have it before. That is the most obvious example.
Senator Beaudoin: Do you feel that aboriginal self- government comes under section 35 of the Constitution Act, 1982, or do we require a constitutional amendment to enshrine that in the Constitution? The Royal Commission will discuss that subject.
Mr. Kakfwi: We take the view that the inherent right exists, and it should be reflected appropriately in the Constitution.
Any quasi-constitutional package like this should show some respect for the long-standing grievance of aboriginal people in this country to be recognized as another distinct people. It is not there. The aboriginal leaders will have time to express that themselves. Constitutionally, we take the view that it should be done in both cases.
Senator Beaudoin: It may be that it is implicitly guaranteed by section 35. I have a doubt, but if my doubt is well-founded, obviously you would like it to be enshrined in the Constitution. However, the Charlottetown Accord is dead.
Mr. Kakfwi: I understand what you are saying. We have always said that it existed. We are not sure that we all share the view that the Liberal government has now taken, namely, that it is there and it is implicit in section 35.
Some of us still say that it should be explicit in the Constitution. If it was there all along, why has the Government of Canada taken so long to say so? In case there is some regression, it should be vividly explicit. That is what the fight has been about.
Senator Beaudoin: Section 42 comes under Bill C-110, if I am not mistaken. It is obvious in my opinion. Forget about the Charlottetown Accord; forget about the Meech Lake Accord; and forget about the recommendations in the Beaudoin-Edwards report. All of that is dead.
The problem is that section 42 refers to the extension of existing provinces and the territories and the establishment of new provinces. This is the 7-50 formula under Canadian constitutional law. As a consequence, Bill C-110 applies to that.
Senator MacEachen: This was the argument earlier. It is in the documents.
Senator Beaudoin: You seem to have some doubt, but I have no doubt.
Senator MacEachen: I was a questioner. When you are posing a question, you must be sincere.
Senator Beaudoin: I am always sincere, but I would like to know what the aboriginal peoples think about this.
Senator Andreychuk: Our witnesses are representing the territories, not the aboriginal peoples.
Senator Beaudoin: My colleague is quite right.
Mr. Funston: To take you through an example, you have made the assumption that the 7-50 formula applies to the creation of new provinces. The submission of the territories before the Beaudoin-Edwards committee was that we should look at it in a slightly different way and assume that the 1871 act is valid.
The 1982 provision sets the rule for amending the 1871 act. Provinces do not have a stake in the creation of new provinces. They have a stake in amending the existing formula in the 1871 act.
Let us apply Bill C-110 to that. The territories have a grievance with the 1871 act. They do not like the fact that territories are excluded. There is no section in the 1871 act that says that a territory may apply and then Parliament may create a new province.
If we want to amend the 1871 act for that purpose, Bill C-110 would kick in, as would the 7-50 formula. Provinces could thwart us on that; but they could not change the existing formula which is the 1871 formula.
Senator Beaudoin: There is a notwithstanding clause, notwithstanding any other law or practice, one century of practice, on the establishment of new provinces. We should look into that.
Senator Gauthier: I had the same question in mind as that asked by Senator Beaudoin.
I am sure you thought of section 42(f), for example. Why did you discard that and come in with a consultation proposal? In your first proposed amendment, you say that no amendment can be adopted unless you have been consulted. Why did you not put in section 42(f), for example, which refers to "notwithstanding any law or practice" in forming new provinces? That would have taken care of the situation, would it not?
Mr. Funston: Again, the amendment proposed is not just related to the provincehood issue. Perhaps that is the stumbling point. It is related to any amendment that would affect the territories. It is not a consultation; it is a consent. It is only in relation to how the federal government exercises its mandate. It was not an attempt to change the 1982 act. We felt we could not do that.
It was simply to say that, if the federal government, for whatever reason, is proposing an amendment in relation to the territories, and it has worked something out with the provinces, it should not go forward without territorial consent. To that extent, we are, I suppose, buying into the mechanism set out in the bill.
We are in a dilemma of, on the one hand, looking at the constitutional provisions, but we are dealing with an ordinary piece of legislation which cannot affect the constitution.
Senator Gauthier: In effect, you want provincial status.
Mr. Funston: "The opportunity to put that forward at the appropriate time," is how we have phrased it in the past.
Senator Andreychuk: As a supplementary to Senator Beaudoin on the aboriginal rights issue, yesterday the minister said that Bill C-110 does not affect aboriginal rights; that those are being dealt with in another way.
In response to a question yesterday about section 35, he said that consultations were only necessary with the aboriginals when their rights were affected, and Bill C-110 did not affect their rights. I found that a rather interesting and unique interpretation and, in my opinion, a narrow interpretation of the consultation as I thought the Supreme Court had defined it and as aboriginal people have defined it. What is your opinion on that?
Mr. Kakfwi: We probably share your view. Not having consulted or discussed this particular bill with any aboriginal people, or even a quasi-aboriginal government like ourselves, I do not know where he gets comfort - perhaps from his colleague Mr. Irwin - that we are all well taken care of.
We are here to tell you that we have not been consulted. We know, politically, something must be done. As Senator MacEachen says, we are trying to be good people. It might not be the best measure in the world to extend at this time, but we recognize the politics of the day, and we have come forward with amendments.
Perhaps these amendments are perceived as imperfect at this time, but this is not a perfect bill. It has been hastily drawn. As Minister Rock said yesterday, if you support the principle, that is what is important. The technical parts of it should not be a major concern.
I do not know that we share that view, but we are suggesting some amendments. We know that, politically, it is perhaps courting disaster for you to seem to be opposing the passage of this bill, since Quebec is eyeing the process, and perception is reality.
We say that these little proposed amendments are amendments which a good, conscientious government, had it had another half-hour to prepare this bill, would have surely put in there. It is your job to insert them.
Senator St. Germain: Mr. Minister, you sound like an elder.
Senator Meighen: I agree that no bill is perfect and there can always be improvements. Senator MacEachen was interested in the amendments and whether they made that linkage or not. You suggest that they are modest amendments. However, they may not be adopted and, if they are, they may not solve your problem. If either is the case, would you suggest that I vote for the bill or not vote for the bill? I am also taking into account Senator Rivest's comment that it will not have the huge impact that some people think it will have in Quebec.
Mr. Kakfwi: I recognize that if it is rejected, it may have a profound impact on a certain segment of Quebec's population. I am not advocating that you reject it. I am saying that I see the political necessity of passing this bill now that it has been conceived. This is no time to abort. Just feed it some good things so it will grow into a healthier creature than it is now. Go with it, but give us some assurance.
Senator Meighen: Thank you for your guidance.
Mr. Kakfwi: You can do it through these amendments, or you can tell the Prime Minister and the minister that the good government of the Northwest Territories made a presentation and that you think we need some assurances. Send him a letter today, in explicit terms.
Senator Meighen: Thank you for your open mindedness. We need more of that in this country in order to find solutions to our problems.
Senator St. Germain: Mr. Minister, you speak of consultation or the lack of it. A study of the history of Riel and Cuthbert Grant in Manitoba shows that governments never did consult with the peoples affected, whether they be Métis or others. Unfortunately, history seems to repeat itself rather than correct itself.
I, like Senator Meighen, compliment you on your openness and understanding of the entire nation and the various regions with which we have to deal. The Minister of Justice has told us that this is a political bill. It is transitory, I believe he said, in nature. He is simply trying to satisfy a political situation which he was forced into or which happened as a result of the referendum.
If we put a sunset clause into this bill which would terminate the legislation just prior to the 1997 negotiations on the Constitution, do you think that would deal with matters to that point? We could go on from there. Hopefully the representatives of the territories at the constitutional table in 1997 could come forward with the required solutions.
Mr. Kakfwi: Mr. Chairman, because it is federal legislation, I suppose it can be repealed at any time. I am not sure that it would be wise for any government in the future to do that without having a substitute for it, and unless some of Quebec's concerns are finally met.
As to what would make us happy, I do not know whether Quebec has been asked that question. Will this make Quebec happy? Some of you think not. As I have said, with some minor amendments, or even a letter from the Prime Minister, we would be happy. We were not asking for a great deal; just some reassurance. You may take that as a certainty. If you pass the bill, there is no certainty that Quebec will be any happier.
Senator Rivest: My personal feeling, and the feeling of most Quebec federalists, is that we do not need this bill to gain or reinforce the federalist option in Quebec. This is not the kind of measure we need to improve the credibility of the federalist option in Quebec. We stated our request at the time of the Meech Lake and the Charlottetown Accords. We need substance; not this kind of measure. I want to be sure that you understand the point of view of Quebec federalists.
The Chairman: I wish to thank the minister and his colleagues from the Government of the Northwest Territories for appearing.
Honourable senators, Professor Whyte from Queen's University is now with us. He has agreed to make an introductory presentation of about 15 minutes, after which there will be time for questions and dialogue.
Professor John Whyte, Queen's University: Mr. Chairman, I wish to thank the members of the committee for permitting me to address this important bill before this parliamentary committee. It is not just a bill; it is an important quasi-constitutional bill.
I would also congratulate those members of the Senate who are responsible for ensuring that this process took place as opposed to continuing on the fast track of Bill C-110 as a sign of the resolve to solve all unity problems. In constitutional affairs, consideration and reflection are, I think, a far better sign than precipitate and bold action.
My comments will be in three categories. I will address process concerns, political concerns and legal concerns. You will see that each of the titles uses the word "concern" which, I admit, is not a very promising way to approach this piece of legislation. That, of course, fills me, as it will all Canadians, with grave misgivings. Is this the time and place to articulate "concerns" about what is without a doubt an earnest effort to strengthen the unity of Canada and to strengthen the intercommunity relations between Quebec and the rest of Canada? I know that "concerns" are not always the appropriate genre in every political situation.
My perspective is that which is primarily expedient and exigent is not necessarily effective for unity. What is effective for unity is that which is earned in the politics of national discourse.
The American philosopher John Dewey wrote that unity is toughest and strongest when it is the work continuously recreated through voluntary consent which, in turn, is always the product of continual communication, conference, consultation and contact of the free give and take of free beings.
Yesterday, Mr. Rock told this committee that what Canadians wanted on the unity issue was strong leadership. Mr. Rock - a man whose integrity I trust completely - repeats the perennial claim of those who are tired of politics or who have tried politics and have miscalculated. It is the expression of frustration with compromise. It is dangerous.
Let me speak more specifically about my process concerns. Bruce Ackerman of Yale Law School, says, I think in a great insight, that true democracy needs two levels of politics. They are low politics, that is, the business of ordinary representation in Parliament and Congress; and high politics, that is, the development of national consensus around constitutive moments. In other words, they are the issues of constitutional reform and the issues of defining and redefining intercommunity relations in a multicommunity nation such as Canada. To confuse the two, says Ackerman, weakens the state. To give up on representation and, instead, to conduct endless polls and plebiscites for every day policies is to rob political policies of perspective and balance and to wear down the capacity of the citizens to be active and effective political participants. Likewise, to impose fundamental change without engaging the interests of the population and the voices of the population is to adopt a form of Constitution-making without constituting value, without creating a sense of national commitment to those most fundamental elements of our structure. It is to change the fundamental compact in which the peoples of a nation live together without recognizing that it is a compact.
In this situation, for instance, we have the somewhat amazing circumstance of the federal government promising never to amend the Constitution unless it has the consent of five regions of Canada, and by installing that rule over the objections of two and a half to three regions of Canada. I do not know how the three Prairie provinces will shake out since Mr. Romanow has not spoken.
I know that Canada has not had a success story in high politics. It is not very becoming for people to lecture the present Prime Minister about his abandonment of high politics. Our attempts in 1981, in the night, did damage. Our attempts in 1987, all through the night as well, have slowly eroded the confidence of Canadians has slowly eroded, as have the attempts over many, many nights in 1990. The "hostage-taking", as my friend Brian Schwartz called it, was not something that appealed to Canadians. The experience in 1991 and 1992, which was more discursive with the two parliamentary committees and then the Charlottetown Accord process, was a grander experiment. There was no hostage taking. There were many nights, but not nights of tyranny. There was more dialogue. Nevertheless, it was not a success.
I do not mean to be superior about the nature of high politics. I do not mean to say that I know what the answer is for Canada. The answer that we are now being given is a process which is not constitutional law. It is not constitution-making. Yet, I want to say, this is major constitutional reform.
These are the political concerns I have. Is this a permanent change? Is this a significant change in our Constitution? In my view, the answer is "Yes". I think there will be no removal of the Quebec veto again. It was removed through Quebec's own decision in April of 1981. It was removed de facto, surprisingly, in November 1991. I do not think it will be removed again in Canadian politics - the costs of it are too well known. I do not take the position that the Quebec veto is the essential sine qua non for Canadian unity. However, I do not think its removal will be available to us again. Nor do I think that the removal of anyone else's veto will ever be available to us, because if we remove someone else's veto we will be signalling that we do not stand by the veto arrangements made in 1996; that it means not much to us. I think it is a permanent change, that is to say, I do not think this bill is repealable.
Will it actually restrain the making of constitutional change? Yes, it will. As a matter of axiom, when the barriers to change increase, the likelihood of change decreases.
To look at it more practically, I think it is very possible to believe that it will be difficult to conceive of constitutional change. It would be too flip simply to say that the constitutional and political imperatives that drive British Columbia are in a mutually exclusive relationship with the constitutional and political imperatives that drive Quebec. However, there is some truth to it. When you aggregate the other regions, the possibility of surpassing the requirements of these vetoes is certainly not high. We are, I think, making a permanent change which has the potential to rob this country of this genre, this form of politics: constitutional politics.
Does it matter? It may not. Certainly, in Australia, constitutional reform has been virtually impossible and yet they are a vibrant political society, thinking of constitutional change by the day, I may say. The futility of the exercise has not worn down their enthusiasm for the sport. Maybe that is our story too.
Yes, I think it matters. There are things to do in this country. For instance, there continues to be disquiet about the operation of the Charter of Rights. I doubt if we will change the Charter of Rights, but we certainly should address the constitutional rules relating to the appointment of members of the Supreme Court of Canada in order to give that Charter a greater degree of acceptability and legitimacy.
I am convinced that we must deal with the problem of a constitutional "distinct society", or some term which captures the same empowering effect. We may need to deal with the regulation of spending power; we may need to deal with implementation of trade obligations.
There are steps we are taking as a nation which are evolving and which represent fundamental change, and we may need to capture them in constitutional language. I dare say this country will survive if we never capture another thing in constitutional language, which I fear is our future, but we will be a better nation, a better political nation, a nation with better political processes, more open political processes, more participatory and legitimate political processes, if, in our arsenal of political action, is the capacity to engage in constitutional reform. After this bill, I think it will not be in our arsenal of political practices.
Let me speak quickly to two other political concerns, one relating to aboriginal rights and one relating to Quebec interests.
There are two ways this bill concerns me with respect to aboriginal interests and aboriginal politics. First, I think this bill would impede the capacity of this nation to use constitutional methods, constitutional reform, as a device to protect the territorial integrity of the nation to the extent that is needed to meet fiduciary obligations.
I know that the Grand Council of Cree of Quebec have argued before the House of Commons committee that this bill would stop Canada from putting in place constitutional measures to protect the territorial integrity of Canada, period. I am not here to address that. I do not know whether that is true. I do not know whether that is something we are even thinking of doing or will ever think of doing, but I do know we have a fiduciary obligation to the aboriginal peoples. One of the instruments for meeting those fiduciary obligations of the aboriginal peoples - especially the aboriginal peoples within Quebec - is the use of a Constitution to express more firmly our fiduciary obligation and our resolve to maintain their status within the Canadian nation. That particular instrument will certainly not be available after passage of Bill C-110.
Second, Bill C-110 puts Canada into a constitutional straitjacket with respect to constitutional reform relating to the development of aboriginal political authority. Again, I am not altogether sure that we will use the Constitution to develop aboriginal political authority.
I know that Minister Rock and Minister Irwin said in December - and I gather from what was said earlier today that Mr. Rock said it yesterday as well - that there was no threat to aboriginal rights. That is right, there is no threat to existing aboriginal rights, but we are on a project of putting in place a regime for different intercommunity relations with the aboriginal peoples of Canada, including greater political authority, and it is very likely thought to be desirable in that process that the arrangements that come out of the Irwin process, the August 1995 process, will seek some form of constitutional validation. Whether it will simply be a further subsection of section 35 underscoring the constitutional weight of the agreements made, or something more, I do not know. That will not happen. One of the vetoes will stop that from happening in this politically diverse, regionally diverse, value diverse nation.
That is the second set of political consequences. The first relates to our constitutional politics; the second relates to aboriginals; and the third relates to Quebec.
As to Quebec I believe that we must make a distinction between a Quebec nationalist sentiment that is looking for respect and recognition from the rest of Canada, and a Quebec nationalist politic which is looking to flourish as a community within Canada. Of the two, I believe - and I want to make clear that I am no expert on Quebec - that the Quebec community is looking for the possibility of flourishing and developing within Canada. If it does not, it will leave. I do not believe that the Quebec nationalist community expects ever to get a requisite level of recognition and respect from Canada. It mainly wants to have the capacity to flourish.
In this, I support Gordon Robertson, the former secretary of the federal-provincial relations office, who claims that the distinct society clause is the main event in terms of developing a unity proposal with the province of Quebec. He likens the distinct society clause to the flag in 1965, to the need for the rest of Canada to stand up as a nation and say, "We stand for something: our autonomy, our identity, our individuality, in the community of nations." That is what was claimed in 1965. In 1996, Canada needs to stand up and say that Quebec has the capacity to flourish within Canada, and we do not intend to let national tyrannies or national majorities pull down that need for a distinctive and significant political development.
I do not think that the veto answers that underlying urge of Quebec nationalist sentiment, or at least I think it only answers the injury of November 4, 1981, which is not, I take it, and I believed, the heart of Quebec nationalism.
Finally, I will touch on the legal points. I will briefly list my concerns rather than engage in even more lengthy exposition.
First, is Bill C-110 a paper tiger; weak, not significant because it only restrains ministers, not Parliament itself, not the House of Commons, and not the Senate? It is directed only to ministers. The answer to that is that it is not a paper tiger. I think it is possible to conceive of court actions to restrain Parliament from voting. It would take a fairly aggressive Federal Court, I admit, to restrain Parliament from voting, but I think it is perfectly possible to see Federal Court actions seeking declarations to declare the introduction of measures to be wrongful when they are introduced by non-ministers as a surrogate for ministerial policy.
Insofar as there is an attempt to get around the restraints of Bill C-110 through using non-ministers, declaratory relief is at least a possibility if not a probability. Of course, the political reality is that as soon as there is any indication by the government that it will get around the restraints of Bill C-110 by the use of ordinary members, it will have publicly and graphically destroyed the Quebec veto, the one political imperative I think it would not do.
Second, is the bill constitutional? There are three arguments for its unconstitutionality. On balance, I think each one would lose, but not without a tremendously stimulating exchange of views. I look forward to the coming debates.
There are serious questions about the constitutionality of this bill, although I am not sure that those who wish to attack it would succeed. These can be summed up by, first, wrongful fettering of constitutional authority; second, the wrongful addition of constitutional values to the constitutional values that have been specifically chosen in the amending formula; and, third, the establishment of something parallel to a veto when a declared law has already been created. Again, none of these arguments is necessarily a winning one.
The Chairman: Thank you very much, Professor Whyte.
Senator Andreychuk: Thank you, Professor Whyte, for what I might describe as your practical conversation with us on this important subject. Would you clarify a few points in the same vein rather than being too technical as to the constitutionality of the issues?
What is your assessment of Bill C-110 as it will affect minority citizens' rights, for example, where a smaller province is lumped into a region? I am referring to the amending formula in our Constitution and the effect of Bill C-110 fettering a minister. What will be the practical effect on a citizen in a province that is not an independent region? In other words, someone living somewhere other than Ontario, Quebec or British Columbia?
The second part of that question is: What will be the effect of the minister's oath and responsibility to all citizens to act and deal in the Canadian public interest as situations and facts demand? By fettering his discretions, does he also fetter his obligations?
Mr. Whyte: I will deal with your second question first. Your second question confirms the suggestion that there is a responsibility in federal politicians and federal ministers to act for the country. That would include introducing appropriate bills. In this instance, it would not involve a bill, it would involve introducing a resolution. Ministers may not introduce an amending resolution because some external interest has said that they would prefer it not to be done or they would not consent to it being done. To do so is to seriously condition one's calculations.
Let me put it in a somewhat different way other than to refer to the oath and the responsibility. Canadians have, what I might call, a "section 91 side" and a "section 92 side". It is true that people would not identify themselves as having a 91 side but, in fact, they do. In an inarticulate way, they know it. They can see themselves as members of a federal polity and they make choices about representatives who will represent their interests in the federal polity and in the topics of federal politics. They expect to be represented in good faith and properly. They do not think that that representation should be held hostage to a whole series of section 92 interests.
On the other hand, it is not crazy to say that, in developing section 91 policy, it is fit for the interests of the whole country. Including the interests as they are represented by provincial governments is irrelevant. I am not saying it is irrelevant, but it is a complete restraint. The problem is that the restraint goes beyond the normal desire we have for sensitivity.
Yes, there are different entitlements that flow to citizens of different provinces. Certainly, a citizen of P.E.I. becomes an irrelevant player. I suppose it is possible that, if all five regions approved the constitutional amendment but there were only six consents, then a P.E.I. decision not to join would be significant. In the instance where five regions would be consenting, only aggregating six, then the decision of P.E.I. would be significant but, in every other circumstance, P.E.I. need not exist. They are different from everyone else in Canada.
The one that the people are more concerned about - and I take it that Andrew Petter this morning was concerned about this also - is that the people of Alberta, Saskatchewan and Manitoba would not be in the same position of controlling a government with a right of veto as, say, the people of B.C. I am not a strong equalist vis-à-vis provinces, so that does not horrify me. There would certainly be that difference.
Senator Andreychuk: It may be valid to give up that right of equality if you perceived you had it through a constitutional amendment but if it is exercised through a statutory bill, would that change your opinion?
Mr. Whyte: Yes, it would. It is a significant moment in Canada's long-term project of defining our intercommunity relations in its fundamental terms. We must be engaged with it in an extraordinary political process. Although this hearing is appropriate, it is not extraordinary.
Senator Murray: Professor Whyte, what is your advice to us as to what we should do with this bill? Our options are to report it with or without amendment.
Mr. Whyte: I do not know how realistic this is, but I have been wondering about an amendment with a time limit.
Senator Murray: A sunset clause?
Mr. Whyte: Yes. I worry about its lack of realism because taking away the Quebec veto will be a disastrous political decision for Canada to make at some future point.
Senator Murray: It was taken away in 1982.
Mr. Whyte: That is why I believe it will not happen a second or third time. I do not know whether you count April of 1991. I guess we do not count that because it was not taken away, it was given away.
Senator Murray: I do not much like this bill for various reasons, but I have not made up my mind about what I should do. The Conservatives will have to consider it in caucus. However, I do understand something of the background to the bill and I want to ask you about that.
The immediate background to the bill is an undertaking, given by the Prime Minister of Canada during the referendum campaign, that the government would not proceed with any constitutional amendment affecting Quebec without Quebec's consent. Do you think that that, under the circumstances and knowing what you know of the history and nature of this country, was a right and proper commitment for the Prime Minister to have made?
Mr. Whyte: I would not for a moment second guess his calculation of the referendum situation as it was on October 23, the morning before he made the promise a first time. It may have been a necessary thing to say. It may have been one of the very few things he could have said, and it may have been effective. That is, it may have been effective in causing us all tremendous levels of pain for a time.
Senator Murray: Excuse me, professor. I was not just referring to the context of the referendum campaign, although that was important in context. Rather, given Canada's history, including recent and not-so-recent history, and given the need to stabilize the situation, does this commitment of the Prime Minister constitute sound public policy in terms of national unity?
He did not say how he would do it. He did not say he would introduce a bill. As far as I was concerned, it sounded like a policy statement. Was that a proper commitment to have made?
Mr. Whyte: No. Detached from the precise moment of peril, absolutely not. It is a unilateral amendment of the Constitution. Not only is it unilateral, it is a highly singular amendment of the Constitution by a single political leader for an expedient reason which actually turns out to matter a great deal to us all. I am not denying its importance.
I do not think the Prime Minister of Canada should, at the same time, advance a constitutional policy and implement it, which is what he did. He had every capacity to implement it as we are now discovering.
Senator Murray: Do you think it is a tenable situation in this country and for this country, that seven provinces with 50 per cent of the population and, of course, the federal government, would be able to amend the Constitution on matters affecting Quebec's place in the federation without Quebec's consent?
Mr. Whyte: I think the 1982 constitutional amendment proposal is tolerable for Canada, recognizing that Canada includes Quebec. I place tremendous emphasis on the opt-out provision for complete protection of Quebec's direct interests. It is not, however, a complete protection of the compact known as Canada which Quebec may have formed under some revisionist history - but a useful revisionist history, in my opinion.
It is an amendment which undercuts that core binationalist etiology of Canada. I do not know what havoc I am wreaking on Canadian unity in saying this. I think this is a tolerable structure for constitutional reform in this country.
Senator Murray: I appreciate the candour of that statement, Professor Whyte, because it really says it all. You are telling us it should be possible to take Senate seats away from Quebec or Supreme Court seats away from Quebec or to make other changes affecting Quebec -
Mr. Whyte: We cannot do that, of course.
Senator Murray: I am not sure of that.
Mr. Whyte: Composition and the unanimity -
Senator Murray: As you would know better than I, there is some argument among legal scholars.
Mr. Whyte: I am trying to save my position from the more egregious examples you are throwing up here.
Senator Murray: It really is key whether seven provinces with 50 per cent of the population, plus Parliament, of course, should be able to take Senate seats away from Quebec and possibly Supreme Court seats away from Quebec and make other changes affecting Quebec without Quebec's consent.
That may explain, in part, the other statement you have made that the veto is of less importance than, say, recognition of the distinct society.
Mr. Whyte: I would like to say that it probably does explain it as a matter of psychological truth. I am interested in distinguishing the two statements and saying, as a matter of statecraft, that an amending formula should respect democracy and federalism - that is a majority of the people in a majority or two-thirds of the provinces - and not have a binationalist nor a regionalist veto. That is a theoretical view about statecraft.
My other claim is that it is not important to Quebec. I would like to think that is not just a projection of my own statecraft preferences but is some - sort of amateurish, I admit - political analysis of the basis upon which rests the strength of Quebec nationalism.
I do not know whether you would disagree with me when I say that Quebec nationalism rests upon recognizing the need for Quebec to have the capacity to develop politically, socially, economically, and to make some, perhaps, anomalous and different arrangements through the distinct society clause.
I am more in favour of Quebec's distinctiveness. I think it fits Quebec's own aspirations to recognize Quebec's distinctiveness in the form of empowerment as opposed to the form of defence.
Senator Murray: We are two non-Quebecers, you and I, discussing Quebec's aspirations. Yes, I do disagree with you. I appreciate the points you have made about the distinct society and so forth, but I tend to believe that, to Quebec, given what we know about demographic trends and all the rest of it, the security of Quebec's place in Confederation, as it relates to national institutions, for example, is vital.
If I understood you correctly, you expressed the view that Canada could continue without constitutional change; we could make other changes. I have very serious doubts about that. I wish I had engaged Mr. Petter this morning, but others did that.
Daniel Johnson might have won the election in 1994 if the federal government had done this or that or had not done other things. That is water under the bridge. If Daniel Johnson had won the election, there would not have been a referendum. Perhaps they would have won the referendum if things had gone differently.
Senator MacEachen: That would require low politics.
Mr. Whyte: Not necessarily.
Senator Murray: That would require very low politics but it is all water under the bridge.
Mr. Whyte: You are right.
Senator Murray: The situation we are in now is that there is a Parti Québécois government in place in Quebec. A referendum has been held. Over the period 1980 to 1995, the federalists have lost very considerable ground. They have lost votes. I am one of those who believes that the 49 per cent who voted "Yes" are not composed of hard-core separatists.
It is obvious that a good number are discouraged federalists who must be won back. If the federal government's economic and social policies, which Mr. Petter discussed this morning, or other policies had been different, perhaps that might have happened between 1993 and 1995. However, I know it was not the federal government's social and economic policies, whatever their shortcomings, that drove 94 per cent of Quebecers to the polls on October 30. It was not the economic and social policies that caused federalism to lose support.
I am convinced that, unless there is a constitutional response, when the next referendum is held, people who voted "No" this time will vote "Yes" the next time. For what it is worth, that is my reading of public opinion in Quebec.
I believe that a constitutional response, a constitutional initiative, must be taken by the rest of Canada. I am no more confident than the Prime Minister seems to be that an initiative by the federal government will work. Yesterday, I heard Premier Romanow say that something must be done. He said, "We want you, the federal government, to take an initiative". My answer to that is: Why not canvass your fellow premiers and see what you can do?
Mr. Whyte: I believe he did as he left Yorkton. They were not as responsive to him as he had hoped.
Senator Murray: He has therefore called on the federal government to do it.
I come back to your statement that we will be able to get on with incremental, policy and administrative change. I do not think that is the universe in which we are living at the moment, Professor Whyte. I think the universe we are living in is that Mr. Bouchard will wait us out. He knows there will be a conference in 1997. It will please him greatly to go back and say, "They have failed." Whereas, if we make a proposal that appeals to federalists in Quebec, he will be on the defensive.
Mr. Whyte: Insofar as your question challenges me on the claim that we can live without constitutional amendment, I would make it clear that in my initial submission I was not in any way encouraging or favouring that scenario. On the contrary, I think constitutional change is a mighty important instrument of political development in this country and that the Prime Minister is wrong to read it out of the list as having alienated Canadians. It may have alienated Canadians but he was wrong to read it off the list.
Furthermore, I believe one of the constitutional changes that we need to get on with is, indeed, one which addresses the Quebec relationship in Canada. I am not happy about the idea of there being no constitutional change. I only said we could live without constitutional change in a self-deprecating way. I am trying to argue that Bill C-110 is costly in the extreme. I am then saying that - and perhaps I am wrong - maybe we can live without constitutional change; but I did not mean it.
Senator Murray: What if the government had introduced a bill to respect the Prime Minister's commitment to Quebec and it contained a Quebec-specific veto? Would that be any more acceptable in your view?
Mr. Whyte: If there were a sunset provision attached to it, or if it were extremely explicit that there would be such a sunset provision somehow connected to the 1997 process, or connected to the post-PQ government - if there is a post-PQ province of Quebec, which most of us hope there is - then, yes, I think that would have been better. I think it would have been seen to be the limited vindication of a strategy which he reasonably enough thought prudent to adopt in the context of the referendum. I think Canadians would accept that. I do not think Canadians are interested in undercutting him or weakening his credibility for the next campaign. If you make a change like this, which is constitutive in some serious way, then all of us can begin to ask questions of the sort Senator Andreychuk asked about whether this is a role a Prime Minister should take on.
Senator Murray: My concern is that, if there is another referendum and we go back empty handed, then we will be dead.
Mr. Whyte: You raise a question, senator, which goes outside the bounds of Bill C-110, that is, what is the response to Quebec nationalism? One is to ensure that Quebec interests are protected in national processes, such as the Senate, the Supreme Court and, I suppose most generally, executive federalism. The second one is the distinct society strategy or the empowerment of the Quebec political society. The third one is the development of a stronger social and economic community. You thought that the last was not significant, senator. You thought that, perhaps, the second was not as significant as the first. I want to say that I think all three are important.
For instance, I think a national, social and economic policy, including the Team Canada trip and working on the CHST standards, are all vitally important to the unity issue. I think that protecting the position of Quebec in national politics is important. However, I maintain that by far the most important element of a national unity policy directed at Quebec is the recognition of distinct society.
Senator Murray: I agree with you on the economic and social union. As you know, in the last 18 months some very good material has been written as to reforms that could be made, some of them without constitutional change. Tassé, Robertson and Lenihan have written a book, as has André Burelle and Gordon Gibson. There are all kinds of very interesting formulae for the management of the economic and social union that I think would make sense to Quebecers as well as to other Canadians.
There is no point changing the subject away from what I regard as the essence of the Quebec problem, that is, its recognition of its distinctiveness in the Constitution, as you say, and the security of its place in Confederation, which is what the veto is about.
Senator Marchand: Mr. Chairman, perhaps for the benefit of the professor who does not know me I should identify myself before I make any remarks or ask any questions. I am an Okanagan Indian, raised on a reserve.
I am not sure whether I should be afraid or worried about the statements you have made. I gather you feel that Bill C-110 will interfere greatly in the future insofar as constitutional amendments that could come the way of aboriginal people are concerned. In the historical sense, constitutional change really has not been very important to our people. In my estimation, the most important change that has ever been made since Confederation had to do with our acquiring the federal vote in 1960. That did not require a constitutional change. I am speaking in a historical sense. However, I am very happy with section 35. I am one of those who thinks it is full of good things. Since the Royal Proclamation of 1763, in fundamental terms, I think it is the most important piece of legislation that has ever been passed on behalf of our people.
Having said that, I certainly do not want to see the progress of my people interfered with in any way in the future, and certainly not in constitutional terms. I want us to be around those constitutional tables when anything that affects our lives is discussed. I want to see our people there to ensure that we get the best deal. We are now fighting our battles on the legislative front. We are doing a lot of fighting now compared with 30 years ago.
What might be the remedy to Bill C-110 in your view? Could a simple non-derogation clause do the job? Recently I reread the Charlottetown Accord and realized that it is full of non-derogation clauses. Would that be the remedy?
Mr. Whyte: No. Minister Irwin and Minister Rock are right in saying that Bill C-110 in itself does not undercut aboriginal rights as they are recognized in section 35(1) and will not have directory force toward courts as they begin to give meaning to the section 35 rights or the fiduciary rights arising under Garret and Sparrow. Bill C-110 will not harm that. All a non-derogation clause can say is, "Do not let this provision in any way erode or curtail the rights that arise from other sources."
The harm to aboriginal interests which Bill C-110 represents is the harm that arises through the inability of a nation to begin to secure, through further constitutional changes, the interests of aboriginal peoples. That can arise in two ways. One is Quebec-specific, that is, the implementation of constitutional recognition of aboriginal political authority which would, in itself, be an instrument against Quebec's self-determination, or at least would be an instrument by which Quebec's self-determination could be undercut by aboriginal communities in their own self-determination move.
It is possible that Quebec aboriginal persons, and perhaps the Government of Canada, are interested, if Quebec separation is inevitable, in securing the self-determination rights of aboriginal peoples. One of the ways they could do that would be to strengthen even further the self-government rights of those communities thereby coming closer to satisfying the international standards for political self-determination. That is a fairly esoteric cost, but it is a cost.
The second way is that, insofar as any aboriginal community in Canada wishes to secure gains made in the recognition of self-government, that is, to say, "Well, Irwin is fine in August of 1995, but we actually need something a little sounder than that", the agreements actually entered into should themselves constitute treaties under section 35(1) and thereby have constitutional protection. Suppose we wanted that kind of proposal?
In fact, the ITC, the FN, the western Métis and the non-status group all made a pitch in Toronto at the premiers conference in 1994 for exactly that kind of amendment to section 35. It is not on in the current political climate, we know that, but it is certainly a possibility. I am only saying that that becomes very unlikely.
Your question was: "If there are these long-term costs or long-term barriers created by Bill C-110 for the development of a stronger political authority for aboriginal communities, how can we stop that?" I am not so sure, except for the sunset clause, that after a while we have a break from this thing and go back to ordinary constitutional politics, or go to the constitutional politics we might develop in 1997, or that we might develop if there is a non-PQ government in Quebec.
Senator Beaudoin: I wish to bring something else to the table following the debate between Senator Murray and yourself.
I come from Quebec and have followed this debate very closely since 1970. There are three things that have not changed in Quebec. Quebecers are interested in the division of powers. Quebecers are interested in some recognition; whether you call it "distinct society" or something else. That is so factual; it is obvious. The third is the right of veto since 1927. There is one additional item we must put on the table, and Senator Rivest and Professor Tremblay referred to it this morning. Quebecers say, "We want protection". One of the best protections, of course, is the right of veto. Professor Tremblay made a distinction between the right of veto that is purely statutory and the right of veto that is constitutional. That is one point.
Second, many federalists think that the right of veto is a good thing, but when it comes to changing the division of powers it may be an impediment in the sense that other parts of the country also have the right of veto. I see only one solution to that. It may be absolutely impossible, but I think there is one possible solution. When the Prime Minister said that we would never take a power from Quebec without Quebec's consent, it was very positive comment. We will never withdraw, subtract or set aside a right of Quebec without Quebec's consent. That is a veto I would like to have as a Quebecer. I think it is logical, and Quebec is the only province in a position to say that there is some logic to that. I would make an exception for aboriginals because their situation is very different from all others. In a democracy, those two vetoes may very well work.
However, I am constantly being reminded that it is impossible. For 25 years we have been dealing with the same problems. If we give this to one province, we have to give it to the other provinces. There will be no end to that debate. We must see the facts as they are. Quebec is distinct. Either you make a place for Quebec in the Constitution in such a way that Quebec will feel protected in its distinctness, or Quebec will find its distinctness outside Canada. It is one way or the other. There is no other solution, in my opinion, for a distinct society.
The amending formula is much more complicated, but we must find some kind of protection for Quebec. I do not care whether you call it a veto, a Quebec veto, or a Quebec protection clause, provided that it is there. We must innovate. If we do not innovate, we will not succeed any more than did the Charlottetown Accord, the Meech Lake Accord, or the Victoria agreement. We have to find something a little different in order to answer those questions.
You say that perhaps the Supreme Court is not protected. I believe that is covered by section 41, but I am not absolutely certain. However, you will never keep Quebec in Confederation if Quebec is not protected by the final court of appeal which has the right to interpret the Canadian Constitution. I think one-third is an appropriate number.
With regard to an equal Senate, I would prefer by far to have no Senate at all than one which is entirely equal.
There is also the creation of new provinces. I know that Quebecers fear that. They fear that because today they are 1 out of 10. Tomorrow they may be 1 out of 12 or 1 out of 13. That is not impossible and, in fact, it could happen in the near future. We must not forget that that will change the amending formula completely. If Canada is every composed of 15 provinces, which is a possibility, the amending formula will be completely different.
I would like to hear your reaction to my comments.
Mr. Whyte: My first reaction is to something you said in passing. You said that there were imperatives relating to more recognition of Quebec's political authority in the division of powers, a distinct society, and the right of veto since 1927.
You said there is a distinction between a constitutional right of veto and a statutory right of veto.
Senator Beaudoin: I believe it was Professor Tremblay who said that.
Mr. Whyte: I suggest there is not much difference at all, that the political imperatives around Bill C-110, if enacted, are such that it will be a very long-term, unrepealable, "unignorable" -
Senator Beaudoin: Why do you say that?
Mr. Whyte: I do not think it will be possible to find another constitutional amendment under this particular formula. It might be, but it will be very difficult. The formula for finding other constitutional amendments is unanimity in any event. The formula we will have is likely to be the one now in Part V of the Constitution Act, 1982. That one is workable, but we cannot at some point down the road say that we are going back to Part V as it was, and we are getting rid of all the vetoes. It is hard to imagine the world of catastrophe and emergency when the national will will be: "Let's get rid of the vetoes."
Senator MacEachen: But you do not have to do that.
Mr. Whyte: We do not have to imagine it?
Senator Carstairs: You do not have to get rid of them.
Senator MacEachen: I have followed this debate and Professor Whyte's argumentation closely, and I think he has found a rigidity in this situation that does not exist. When he says dogmatically that this bill will never be repealed, that is not credible.
Senator St. Germain: Senator MacEachen, I have to agree with him.
Senator MacEachen: Change the government. Put Preston Manning in as Prime Minister next election.
Senator St. Germain: Heaven forbid.
Senator MacEachen: Maybe then it will not be repealed.
Senator Beaudoin: Perhaps you would continue, Professor Whyte.
Mr. Whyte: My one note of additional dogmatism to Senator MacEachen is that my view is that, if the people of Canada go into the next election believing that Preston Manning's first act will be to repeal of Bill C-110, they will not vote for him. At heart, Canadians do not want unity to be destroyed, and I think we know that is the cost of repeal.
Senator MacEachen: I think Bill C-110 has not entered the Canadian consciousness in any way, shape, or form. I am sorry we do not have more time for discussion.
Mr. Whyte: Let me return to Senator Beaudoin and say you are right that my presentation is based on a sense of political imperatives that arise in complex nations with multiple communities. When you create an entitlement as fundamental and as protective as that is, it is not there for the taking. That is dogmatic.
Senator MacEachen: It is regulation of ministerial behaviour. That is all it is. It does not confer anything on anyone. It guides ministerial behaviour, period.
Mr. Whyte: I disagree.
Senator Beaudoin: Do not forget that Clyde Wells rescinded a constitutional resolution.
Mr. Whyte: Do not forget that the political imperatives driving Clyde Wells were not the political imperatives that came with national office. Political imperatives come with an office, and there is a constituency to which you must pay attention.
Senator MacEachen: The analysis is unreal. Here you talk about huge political imperatives, and the Conservative Party is considering whether to defeat the bill.
Senator Rivest: No, not at all. We are just asking questions.
Senator MacEachen: Senator Murray will decide whether they will defeat it.
Senator Rivest: We could.
Senator St. Germain: We could.
Senator MacEachen: Whether to pass it or defeat it, where is the huge political imperative operating over there? They still have their options open. Maybe they will defeat it. What a huge political imperative.
Senator Beaudoin: My question still exists.
Mr. Whyte: The point I wish to make about the statutory veto and the constitutional veto and my claim that there is not much distinction is that I think there is a decision in the eyes of Quebec nationalists. The view Senator MacEachen has of this bill - its impotence, its skirt-aroundablness, its repealability, its transitoriness - is precisely what makes it a pointless document for anything to do with the unity debate. In fact, I think that those Quebec nationalists are wrong who think that it amounts to nothing and that this is a blithe, Prime Minister Chrétien promise made in Verdun, not spelling out what he meant, and it turns out it means this little thing which is repealable tomorrow. It means much more.
Senator MacEachen: I think it means more, but not as much as you think it does.
Mr. Whyte: It means quite a bit for which we are getting paid, in terms of commitment to membership in the Canadian nation, very, very little.
The second comment I want make is to Senator Beaudoin and it concerns the importance of the Quebec veto. I have already said to Senator Murray that, as a kind of detached, "ahistorical", sense of statecraft, a veto is not a happy thing. That may be such an unrealistic comment for a Canadian to make as to be shocking. When Senator Beaudoin spoke, he specifically identified what the concern was. It was not the need to veto, to control, to be in the driver's seat of a political development in Canada, but the need to be protected. There is a difference between the need to have a veto and the need to be protected.
I admit that section 38(2) does not protect Quebec's interests adequately, certainly not in the way that Senator Murray identified vis-à-vis the Senate. It only protects its legislative and governmental role. I think that we must find ways to assure the political community of Quebec that they are not subject to the tyranny of the national majority in anything that defines and enables them to function.
Senator Beaudoin: There you have it.
Senator Murray: It has to be done in the Constitution.
Mr. Whyte: Of course, and of course there will then be an unequal province, so Mr. Petter will veto it. It would not be done in the Constitution after Bill C-110 if I were to continue my aggressive anti-Bill C-110 stand, which I probably should not.
Senator MacEachen: I regret that I intruded into the discussion. I should be more respectful of Professor Whyte's analysis.
Mr. Whyte: That would not be right at all.
Senator MacEachen: I have been following this line of discussion with other witnesses, including Professor Tremblay this morning, and yesterday afternoon Professor Pelletier, who take quite a different view on the impact of Bill C-110. I am interested in asking you about your comment in your presentation that, as I read the bill and as the minister explained it, the only effect is to regulate the conduct of ministers, legally.
Mr. Whyte: Yes.
Senator MacEachen: The Constitution still permits a province or a series of provinces to come forward with constitutional amendments. They could do that. They could have a legitimate constitutional amendment with the existing formula, and the Parliament of Canada could be free to accept it. That is my argument.
Mr. Whyte: If there were a resolution, from a single province under section 43, or from a whole series of provinces under section 38, it would become an amendment if there were a matching resolution of the House of Commons and the Senate.
The question is: How do we get that resolution? You cannot get a resolution, as I understand the parliamentary chambers, unless it is introduced into the chambers. It would need to be introduced. The question is whether the spirit or even the law of Bill C-110 would be satisfied by the introduction of a non-minister when the governing party indicates its intention to vote for it. That is the precise scenario. We have the introduction of a person who is not caught by Bill C-110; the governing party will vote for it. Is Bill C-110 violated?
Senator MacEachen: We are confronted, let us say, with a situation in which the Prime Minister has worked indefatigably to secure a distinct society provision in the Constitution and has been unable to reach the high level of consensus provided for in Bill C-110.
However, the Premier of Ontario or the Premier of Quebec could launch the constitutional process. The Prime Minister, who is already committed to this, may state, "I could not get this consensus but it is still constitutional to support it in the Parliament of Canada, and I have complied with my obligation under Bill C-110."
Mr. Whyte: If he can find someone who will introduce it.
Senator MacEachen: He could ask the Leader of the Opposition or, perhaps, a senator. That is my argument.
Mr. Whyte: That is an interesting scenario. There are two counter-arguments. It seems to me possible that, if the Government of Canada endorses a resolution but does not introduce it because it is restrained by Bill C-110, and connives or collaborates or participates in its introduction through another agent, it undercuts the spirit of Bill C-110 so substantially that it could face legal challenge.
The second constraint is this: We could change the scenario or not. For example, if we have an amendment about Senate reform or social programs on which we can get everyone's consent but Quebec's, we can go ahead.
The question is whether the government will actually participate in a strategy which has one message only; that is, there is no veto in the Canadian Constitution at all.
Quebec, you do not have a veto.
Senator MacEachen: My scenario is based upon the expectation that Quebec will be a consenting province to the constitutional amendment.
Mr. Whyte: Are you saying, in your scenario, that Quebec would not infer from the willingness to override B.C.'s veto that it no longer considered the bill to be a particular constraining document when it was not convenient to be constrained by it and, therefore, tantamount to demolishing the veto, period?
Senator MacEachen: No. In my years in Parliament, I have been instructed by ministers of justice and officials that the law says what it says; you cannot expand the meaning to talk about the spirit or the politics involved. It says, "The minister is not permitted". Am I wrong?
Mr. Whyte: That certainly depends upon the document. We care a lot about the spirit of some documents. It is possible that this document will be seen to be a technical, pro tem expedient for a specific moment and, notwithstanding its constitutive nature, that it would not have constitutional status and would therefore be read technically. It is certainly possible.
Senator MacEachen: I appreciate your analysis.
Senator St. Germain: Senator MacEachen is pointing out something very dangerous: What ministers cannot do, someone else will be able to do and could still possibly undermine Quebec's situation. What Canada is looking for right now is leadership. If we undermine the ministers of the Crown who provide that leadership and come forward with the initiatives required by virtue of a piece of legislation, that is very scary, in my opinion.
My question involves the regional aspect of the bill. Bill C-110 came forward and the regions were established. Then, suddenly, there was a hue and cry from my province demanding to be recognized as the Pacific region. Now we have a new region and a whole new scenario.
What is your reaction to this new development of regionalism within the country? I would also like an answer, as succinct as possible, as to whether your solution would be a sunset clause or a blockage of this legislation?
Mr. Whyte: The addition of B.C. is certainly anticipatory of Canada's demographic future. At some point around the year 2010, B.C. would have controlled the prairie veto. The prairie provinces should be grateful that B.C. is now a region of its own because it re-captured its veto which will be entirely mortgaged to B.C. in another 15 or 20 years.
I do not know whether it is an intolerable stage in the evolution of our political culture that B.C. should now be recognized as one of the three single-province regions. My instinct about that is negative; it does not feel like a prairie province to me. However, that is a pretty unscientific response.
The second question related to the answer to this bill. The spirit behind Senator MacEachen's view of the bill that it is disposable, malleable, manipulable, is a wonderful spirit. We should find some way of underscoring that, more than just using the word "minister". A sunset clause seems to be the best way to do that. This is something we have done to respond to a point in our history which needed response. We must continue constitutional discussions without quite the same set of constraints.
Vetoes are not the right long-term constraints for a country like this, in my opinion. Let us vindicate the Prime Minister's conduct in Verdun. Maybe he deserves it. However, let us keep open the possibility of going forward with constitutional politics.
Senator Carstairs: My concern about a sunset clause is that it seems to have within it a threat that, if something is not done in 1997 - presently the only imperative is to hold the conference - the result will be that, somehow, this blunt instrument will fall. I would like your comments on that.
My primary question, would relate to you comment that the most important thing is the distinct society clause. Senator Beaudoin has said there are three issues: the distinct society clause, the division of powers, and the veto.
If you take the Prime Minister's initiatives, very limited though they are, on Bill C-110, the resolution on the distinct society clause and the manpower training change, do you see those three, in combination, as being a good first step up the leader?
Mr. Whyte: Please repeat the three initiatives.
Senator Carstairs: They are the changes to manpower training in Bill C-111, the resolution on distinct society, and Bill C-110.
Mr. Whyte: First of all, I do not think 1997 is the sunset period. We should let more political change filter through - and I am not speaking about anyone in particular - but more political exchange than can filter through the nation's political communities than 1997 will allow us.
Yes, it is a threat. It does seem to me that if, by the year 2000, we cannot form a structure for conducting national politics at the constitutional level because we do not trust each other again, maybe that is the point at which we should say: We do not trust each other, we never will. Let us give everyone a veto and forget constitutional politics. Let us see if we can muddle through with administrative arrangements. I am not suggesting that we should try forever, but for more than one more year.
Is this a good first step, the manpower training? I am not here to talk about the distinct society clause. I see the distinct society clause as a political idea which is meant to say something to the Quebec polity about its power, its roll, its place, its obligation.
The Quebec polity wants to be a stronger, more effective polity. It does not want the national polity to be better; if anything, it wants it to be worse. The distinct society clause is just an address to the national polity to try to do a better job. The distinct society drive is not meant to encourage Ottawa to do a better job; it is to be self-determining. I do not mean in absolute terms or secession. The beauty of the distinct society clause is that it begins to acknowledge that there is a political community in this country which has a character deserving of recognition in the form of political authority, some indeterminate level of political authority.
That is what is missing. The resolution passed in December does not address that. In view of the way that unity politics and nationalist politics have played out in Quebec, I do not think these initiatives are significant.
The Chairman: Professor Whyte, on behalf of my colleagues on this committee, thank you very kindly for appearing before us.
The committee stands adjourned until 9:30 tomorrow morning.
The committee adjourned.