Proceedings of the Special
Senate Committee on Bill C-110
Evidence
Ottawa, Friday, January 26, 1996
[English]
The Special Committee of the Senate on Bill C-110, to which was referred Bill C-110, respecting constitutional amendments, met this day, at 9:30 a.m., to give consideration to the bill.
Senator Noël A. Kinsella (Chairman) in the Chair.
The Chairman: Honourable senators, this morning our first witness is from the Government of Yukon. The minister is here. It is our practice to hear an opening presentation, which is followed by questions from the members of the committee. If that meets with your approval as well, Minister Nordling, I would call upon you to make your presentation.
The Honourable Alan Nordling, Minister of Government Services, Government of Yukon: Thank you, Mr. Chairman and committee members.
I am here because the Government Leader of the Yukon cannot be here. He is presently in Japan and Taiwan working on the Yukon's economic future. I am here to discuss the Yukon's constitutional future. I am here because the Yukon takes Bill C-110 seriously. I would like personally to thank the Senate for also taking it seriously enough to set up this special committee.
Personally, I feel that my being here may be too little too late. I feel like a voice in the wilderness, or perhaps a voice from the wilderness.
Before I start my presentation on behalf of the Yukon government, I would like to tell a short story. Before I got into law and then into politics, I was the general manager of a gambling casino in Dawson City, Yukon. We used to hire an expert games manager from Las Vegas to come up and look after the tables.
He was very concerned that at the end of the night, the house had won money. Sometimes a dealer would be having a run of bad luck and this fellow would go up behind him and say, "Don't just stand there like a sack of wheat. Do something." He said he did not care whether it helped or not. He said, "Shuffle the cards differently, cut it thicker, cut it thinner, stand on your right foot, stand on your left foot, but do something. Don't just stand there and let it happen."
I am here today because I did not want to sit up in the Yukon like a sack of wheat. I have come all the way to Ottawa to talk to you and I hope my message will have some effect, make some difference, if not with Bill C-110, then with future constitutional discussions with respect to the Yukon's place in Canada.
As I said, it may not help that I am here, but it certainly will not hurt.
Therefore, Mr. Chairman, on behalf of the Yukon government, I appreciate the opportunity of speaking to you on Bill C-110. The issue of national unity affects all of us as Canadians and we are pleased to contribute to your consideration and debate on this legislation.
I should like to outline briefly the Yukon government's position on the general issue and on the bill before us. I will provide some background or context on the development of responsible government in the Yukon. I will detail the concerns we have with the bill and with the process to date. Finally, I would like to outline suggestions that the Yukon government has for amending this bill to deal with the concerns raised, and give you some observations regarding how we might work together across the country to resolve the broader issues.
First, Mr. Chairman, we support and recognize the need for government action to address the legitimate problems and concerns of the people in Quebec. Like most Canadians, we know that these cannot be ignored. They demand careful consideration and response from the rest of Canada, and the federal government has a key leadership responsibility in this regard.
We also believe that change and improvement to the federation are shared responsibilities. Governments and citizens in every part of Canada can and should make a contribution. In fact, they must be involved if we are to reach amicable and lasting solutions and be able to move forward together into the next century.
As a part of Canada, far removed geographically from Quebec, let me be clear that we are no less concerned than those closer by. All of us are affected by uncertainty, by preoccupation, and by unstable financial markets. All of us are threatened by the possible loss of part of our country, our heritage and our very identity.
I want to assure members of this committee and, through you, the Government of Canada, that the Yukon government will continue to participate and contribute constructively to the national debate.
That said, Mr. Chairman, I will now turn briefly to our concern with the legislation proposed and the process by which it has reached this point.
First, the bill in its present form creates or furthers a regional approach to confederation and to future constitutional measures. While a regional approach may have some merit, it is not a concept presently in our Constitution or in our system of government. We believe it is premature to introduce the concept through this legislation without benefit of full dialogue and without full appreciation of its implications.
Second, the bill reflects unilateral decisions and directions determined by the federal government, without the engagement of provincial and territorial governments or any public involvement. It begins a process of de facto change to our constitutional arrangements outside the processes or mechanisms which have been formally established. We believe there is danger in such an approach.
Third, it is surely not intended but the result of the legislation may be more likely to provide for future deadlock than an improved mechanism for change. Again, I would say that the regional concept may have merit and some logic, but in our haste to act, we may be inviting unwanted results.
Finally, Mr. Chairman, I must say, from a northern perspective, from a territorial government perspective, we have serious and specific concerns with this bill. There is no recognition in this legislation that Canada north of the 60th parallel exists, that the territories are part of the country, or that our citizens should be entitled to some say about their Constitution.
We are not designated as a region. We are not included in another region. We do not exist. Therefore, we will have no input into issues that might arise under these arrangements. Yet some of those would have a larger impact on us than on any other region or jurisdiction. Every jurisdiction in Southern Canada has been allowed, if not invited, to join as a province and as a full partner in Confederation. In every case, the decisions have been made by the Government of Canada and the people or government of those provinces.
Recent constitutional initiatives, Meech Lake Two and the Charlottetown accords, while not putting our future decisions regarding provincial status on exactly the same ground, recognized that we must at least be involved and that other provinces should not determine our future. This legislation reverses that trend; it takes us back to a formula whereby we have no say and the provinces can veto our aspirations to join as full and equal partners in this country.
Mr. Chairman, I will return to these issues in more depth, but at this point I would like to provide some context for our concerns and outline the nature of government in the Yukon. In doing so, I would like to illustrate why we believe this bill turns back the clock on our place in Canada.
We have had in the Yukon a fully elected legislature resident in the territory for close to 90 years. Yukon citizens elect members to this legislature to make laws, to approve government spending and to represent their interests on a broad range of public issues, just as citizens in Prince Edward Island, Alberta and Ontario do. For close to 20 years we have had a cabinet made up only of elected MLAs, which is responsible for the decision-making of government and is fully accountable to the legislative assembly. Ministers oversee government departments and answer for their activity. We have, in other words, responsible government, and we operate on the same principles that govern parliamentary democracy in the rest of Canada.
The Yukon government has evolved over the past 50 years into a government that in all but a few respects mirrors the administration you would find in any Canadian province. On a day-to-day basis we operate schools and deliver a variety of educational programs. We legislate and support the operations of the Yukon Supreme Court and the Territorial Court. We run correctional facilities. We build and maintain highways. We administer social assistance and deliver other social services to Yukon residents. Suffice it to say, if you were to examine the daily operations of the Yukon government, you would find little difference with administrations in the provinces.
In addition, our government represents the Yukon in all intergovernmental fora. The Minister of Health and Social Services, for example, is working with his counterparts on health and social security reform. The Minister of Renewable Resources is involved in work on a national environmental management framework agreement, and last year chaired the Canadian Council of Ministers of the Environment. The government leader attends the annual premiers conference and this year will host the annual meeting of the western premiers.
Mr. Chairman, these examples are provided not to impress upon you how busy we are but to make an important point: We are an active partner in Confederation. We are elected to manage and represent the interests of our citizens. We are expected to, and we do on a continuous basis, fulfil these responsibilities in the same manner as do provincial governments.
This legislation fails to recognize these realities. It fails to accord to the Yukon and to the Northwest Territories a voice in national debates which may occur about their future. It fails to recognize that there are governments elected to represent the views of all their citizens. It fails to involve them in issues fundamental to the future of this country. It portrays a country missing a northern dimension or region, one-third of its land mass, a large part of its aboriginal heritage, and its claim to being an Arctic nation.
In his speech to the House of Commons in support of Bill C-110, the Prime Minister stated that the federal government had only one goal in introducing this legislation: To ensure the unity and evolution of Canada in order to respond to the aspirations of all Canadians.
I am here to say to you today, on behalf of the Yukon government and on behalf of the Yukon people, that this legislation fundamentally does not promote unity. It ties the hands of the nation on the evolution of Canada, and it definitely does not respond to the aspirations of northerners.
The regional approach, as proposed in Bill C-110, if all people of Canada are encompassed within a region, may provide the framework from which Canadians can effect future change. However, this approach has not benefitted from wide public debate or analysis. I believe this view is corroborated by the fact that numerous academics and experts have come before this committee and questioned the merits of a regional approach. Thoughtful and comprehensive public debate needs to occur.
The regional approach is not the only issue which requires broad public debate before Bill C-110 is made law. The bill before you is a creation of the federal government. It did not benefit from consultation, consideration or input from the provinces, territories or experts, or from consideration by average Canadians. As I said earlier, the bill reflects unilateral decisions and directions determined by the federal government. It begins a de facto change to our Constitution without the benefit of any discussion outside of Ottawa.
Throughout the relatively recent constitutional discussions held in this country, northerners have had varied success in ensuring that their voices were heard. In Canada's original Constitution, provincial status and the changing of provincial borders were a matter between the federal government and the affected parties.
In 1982, the Constitution was amended, requiring approval of the legislative assemblies of two-thirds of the provinces with at least 50 per cent of the population for constitutional amendments, the so-called 7-50 rule. This directly impacted the ability of Yukoners to achieve self-determination and control over their future. However, the Yukon government was conspicuously absent from the 1982 constitutional process.
Similarly, the first round on the Meech Lake Accord in 1987, by changing the consent provisions of the amending formula without the benefit of territorial participation in the discussions, made more difficult any future enhancement of our constitutional role.
During the second round of the debate on the Meech Lake Accord in 1990, the Yukon did contribute and, we believe, brought some important and worthwhile perspectives, options and alternatives to the table. Additional changes were proposed which were more constructive in their treatment of the Yukon and Northwest Territories.
The Charlottetown Accord, agreed to by all first ministers, including the first ministers of the Yukon and Northwest Territories, further addressed and improved the provisions for the creation of new provinces and for defining the relationship between the northern territories, the provinces and federal institutions. However, the Charlottetown Accord was ultimately defeated, largely because a majority of Canadians felt that they had not been given ample voice in the process.
The legislation before you, Bill C-110, does not reflect the discussions of the past decade which culminated in a consensus at Charlottetown. It does not reflect a broad consensus of Canadians. It does not even reflect the geographic and democratic realities of our nation.
We are concerned, as are many of the other witnesses who have come before you this week, that, as written, Bill C-110 does not set the stage for or encourage open debate among Canada's partners. We fear that Bill C-110 will create a deadlock in future constitutional discussions.
Mr. Chairman, I will conclude with some observations and recommendations regarding possible amendments to the bill before you and regarding how, from the Yukon perspective, we might move forward in the coming months.
Our preference, frankly, is that this legislation not proceed. For the reasons mentioned earlier, we believe that the substance and the manner in which it was developed - without involvement of the provinces and territories - are seriously flawed. We do not believe that the concept of regionalization, its implications and long-term consequences, have been sufficiently considered or endorsed throughout Canada to legislate in this way at this time.
Recognizing, however, that the Government of Canada may not be inclined toward such a course of action, I would offer amendments in two areas to address northern concerns: First, the bill could be amended to include and recognize a northern region consisting of the Yukon, the Northwest Territories and, in future, Nunavut. Recognizing the size of our population, we would not insist at this time, that such a region have the full range of veto rights awarded to other regions or individual provinces. The North should, however, have a comparable voice or veto with respect to matters included in sections 42(a), (c), (e) and (f) of the Constitution; that is:
(a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada;
(c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators;
(e) the extension of existing provinces into the territories; and
(f) notwithstanding any other law or practice, the establishment of new provinces.
All of these subsections impact directly and specifically on the territories.
Alternately, the bill could be amended to, first, provide that any changes pursuant to subsections 42(1)(a), (c) and (e) that would adversely affect or directly impact the territories would not be introduced or made without prior consent of the territories and, second, remove subsection 42(1)(f) completely from application of the bill.
Mr. Chairman, in proposing these amendments, I wish again to emphasize that these are not our first preference or ideal solutions. They are put forward as a means by which the Government of Canada can address a serious error - we hope oversight - in its proposed legislation. They are not unreasonable or unworkable amendments, and do not affect the ability of Canada and existing provinces to govern themselves or make important changes regarding the operation of the country. They simply acknowledge a fact: The North is a part - a very large part - of this country. They acknowledge a principle or right: People in the North are Canadians and they must be afforded the opportunity, like all other Canadians, to decide on their own futures and represent their own interests. We are not asking for provincial status at this time. We are not seeking special powers. However, we will not accept a version of Canada which leaves us out, or takes us back to a time when others assumed they could make decisions for us.
Where do we go from here? Mr. Chairman, we understand that this legislation is only part of the federal government's unity package. While the other parts are not specifically within the mandate of this committee, we cannot entirely separate them.
We believe that national unity initiatives must include measures which address the needs of Quebec and also the needs of other Canadians. In 1997, governments will convene a constitutional conference on the amending formula. We will work hard to be constructive at that conference, and to contribute to a fruitful outcome.
Other changes required can, we believe, be accomplished without formal constitutional change if there is mutual will to proceed. In that respect, we encourage the Government of Canada to give high priority to seriously revisiting its roles and responsibilities vis-à-vis those of the provinces and territories. We are not advocating wholesale decentralization; we are advocating rationalization, removal of overlap and clarification. We are advocating dialogue without predetermined or rigid positions. The results should be based on service to the public, accountability and efficiency; not politics. We encourage dialogue on practical solutions to issues of Canadian unity similar to those that are being worked out between First Nations and the federal government regarding self-government and inherent rights of aboriginal people.
Mr. Chairman, I stated at the outset that Canada has a leadership role. That is obvious and inescapable. However, it will not be enough for the Government of Canada to act alone, and it will not be successful. The future of Canada is a matter for all Canadians, and all parts or regions of the country. Mr. Chairman, we urge you to make this point. The provinces and the territories must be part of the solution. We must engage seriously and cooperatively to find solutions. We must have collective responsibility for the problems, and we must have collective ownership of whatever new arrangements emerge.
There has been discussion regarding involvement of citizens outside government in the process through constituent assemblies or other means. Those ideas, too, need further consideration. Ultimately, governments must approve and put in place any new arrangements, but we must balance our role with that of the public. There is a place and a need for both.
The Prime Minister has also spoken about a spirit of cooperation and a partnership which should inspire us to continue building this country. The Yukon government agrees wholeheartedly.
On behalf of the Yukon government and all Yukoners, I will make a commitment to you here today and to the rest of the country that we are prepared to come to the table to work with all other partners in Canada to reach practical solutions to address issues now facing the country.
Mr. Chairman, I thank you again for the opportunity to outline our perspective on Bill C-110. I would be pleased to answer questions or to discuss any issues raised in our submission with committee members.
[Translation]
Senator Rivest: You recall in your brief the importance of the two territories, in particularly the Yukon, and the very legitimate concerns that they have.
You correctly note that the bill, while not constitutional in nature but nevertheless closely associated with constitutional matters, makes no mention whatsoever of the existence or reality of the Northwest Territories and the Yukon. You raise a very good point, just as the aboriginal representatives did when they outlined their specific concerns.
I realize that the demands and concerns of the Yukon are extremely legitimate. I agree with you that these must be addressed as soon as possible because they are wholly legitimate.
With respect to Canadian unity, and taking into account the fundamental problem with Quebec, of course, do you believe that the Quebec problem can be addressed in any significant, concrete way? The only real threat to Canadian unity is the Quebec problem.
Considering the demands of the Yukon and Northwest Territories and those of the aboriginal people, the issue of reforming Canadian institutions such as the Senate or the spending power question, do you not feel that the Quebec issue should be the focus of our discussions and number one on the list of priorities when it comes to constitutional reform?
You underscore in your submission the very serious threat of separation and of the break-up of Canada if the Quebec problem is not resolved. The country will break up and this could happen fairly quickly. We are talking about months or years, depending on what Mr. Bouchard will decide. Any other demands and concerns that Canadians may have about the modernization of the country could be illusory.
[English]
Mr. Nordling: To start with your last comment first, senator, yes, I absolutely agree. Some of what we are doing is illusory, and perhaps Bill C-110 is an example of just that. I am not sure because we have not looked long enough or hard enough at it to know whether it is constitutional or what effect it will have, whether it will have no effect or a tremendous effect. Perhaps it is an attempt by the federal government to fulfil a promise. I will not say "pay lip-service" because that might be an unfair attack. Their intentions may be more genuine than that. We do not know that.
I do not mind seeing the federal government trying to do something - again, not to stand around looking like a sack of wheat and letting things happen, letting the chips fall where they may, so to speak. The problem we have with Bill C-110 is that it may not hurt. However, it may cause problems. When you have a cold, you take chicken soup, which may not help but which will not hurt. The same is true in this case.
In this case, we do not know whether or not Bill C-110 will cause problems, which it may do in terms of regionalization causes. From our point of view, it simply leaves us out. We are forgotten completely. It is annoying to think that because the federal government does not know what to do with us they have ignored us completely. It would have helped if there were a clause in Bill C-110 simply stating that it is recognized that the territory north of the 60th parallel comprises one-third of Canada's land mass and that sometime in the future we will revisit their involvement. If that were done, we would at least have been acknowledged.
As a Yukoner, I am prepared to wait my turn for a constitutional amendment concerning provincial status. I think you are right when you say that it is Quebec's turn. The possibility of Quebec leaving Canada is very real and immediate. Who knows what may happen with the rest of Canada in 50 years?
Before I left Yukon I was at the airport where I told several people I know that I was coming down to Ottawa to address the Senate committee on the Constitution. They said, "Tell them we are going to join Alaska. Tell them we are going to have our own referendum." Although, such a prospect is remote at best in the immediate future, who knows what will happen 50 years from now. Yukon has close ties with Alaska.
There are the Arctic Winter Games in Alaska in which kids from Yukon, the Northwest Territories, Northern Quebec and Northern Alberta will compete. My son plays basketball in Whitehorse. He travels to Skagway, Haines and Anchorage, Alaska to compete. Our national resources are shipped out through the port of Skagway, Alaska. It is not impossible to think that the Yukon may turn its attention toward Alaska.
As I say, the prospect is remote, but who knew that the former Soviet Union would collapse or that the Berlin Wall would come down. In hindsight, we can say we saw it coming, we told you so, but not many people can say that honestly.
Senator MacEachen: Thank you, Mr. Nordling, for your presentation and for setting forth in your paper a broad landscape which affects Yukon and telling us how the future will unfold and how you would like it to unfold. That is all very useful.
Yesterday, Mr. Claude Ryan from the province of Quebec testified before the committee. He urged upon the Government of Canada that the principal priority for the country and for the government is the Quebec question. Senator Rivest has said that the Quebec situation is the only current threat to the unity of Canada.
It is from that perspective that we must look at this bill. It is not intended to deal with the broad question of constitutional change affecting all the aspirations of all the provinces, of the aboriginal people, of the territories. It has a very limited, precise purpose. From that point of view, it seems to me that your concerns take on an entirely different perspective. If this bill were brought forward to deal with many broad questions of the Constitution but the Yukon were left out, then you would have a legitimate complaint, or a more powerful complaint.
The minister testified before us that the bill - and I agree - has a very limited purpose, a very precise purpose. It is a response solely to the commitments which the Prime Minister made in the context of the referendum. The bill must be seen in that light. Therefore, it is wrong to think that this bill with this slender purpose can solve all these broader problems. It is impossible.
I am not a constitutional authority like my colleagues across the table, but it would appear to me that the amendments which you propose would deeply affect the interests of the provinces and the other territories, and you are proposing that we amend the bill to undertake changes which affect others and about which there has been absolutely no consultation.
Can you or will you acknowledge that this is a very limited bill with a very precise purpose? The constitutional question is very broad, and it must and will be addressed under the terms of the Constitution within a short period of time, and presumably everything will be on the table.
Mr. Nordling: I do not hesitate to agree that the intention of this legislation is limited in scope: it is to fulfil a commitment made. The concern is whether that is all it does. I do not mind for a moment the federal government trying to do something; however, I do not want it to cause more problems than it solves. It may solve the problem of the federal government fulfilling its commitment, but it may create more problems of which we are not now aware and of which we will become aware as time goes on, particularly with respect to regionalization and whether we are amending the Constitution without the proper procedures. I will not repeat all the arguments you have heard over the last week.
In fulfilling the limited and precise purpose which this act was intended to do, that limited precise purpose should have been spelled out in the act. If the Yukon and the Northwest Territories, the whole Arctic region of Canada, was not meant to be included, then there should have been a clause in the act which said that this act recognizes that there is a large part of Canada that is not dealt with in this act and that they will be dealt with in the future.
As I said to a previous questioner, the Yukon is prepared to wait for its turn. It is not our turn now. I am not asking you as a Senate committee to put all the aspirations of the Yukon in Bill C-110. However, I am saying that, from our point of view, it is a dangerous precedent for the Prime Minister of Canada to say, "My intention in this bill is to promote the unity of all Canadians," and then to completely ignore what I consider an important part of Canada. The north is an important part of Canada. The Yukon has only one seat in the House of Commons, and there are only 30,000 people, but we are a vast storehouse of resources. In the future, it will be important to recognize that we in the Yukon are fierce Canadians, because Canada will need us. If we are shunted aside, ignored, and are not fierce Canadians, who knows what will happen in the future?
We do not have to go back very far to see the Americans coming into our part of Canada and building the Alaska Highway despite what Canada wanted to do. They built a pipeline from Norman Wells to Whitehorse to supply oil. They flew the American flag. They did not recognize the sovereignty of Canada in the north. More recently, we had the ice breaker Polar Sea go through the Northwest Passage with very little recognition by the Americans that Canada has sovereignty over those waters.
It is important, if Canada is to be an Arctic nation and recognize all peoples in its discussion on unity, that the Yukon, Northwest Territories, north of 60 be mentioned somewhere in this bill. If not, I will back off even further. I am only asking for a tiny recognition. If it has a limited and precise purpose, and it is only temporary until the whole issue of the constitution and unity can be dealt with, then why is there not a clause in this bill which says it is in effect for a period of five years or until 1997 when a more complete and full debate can take place with input from Canadians all across Canada?
Senator MacEachen: Mr. Chairman, I appreciate what the witness has said. In my opinion, the Yukon has the tremendous potential that he has described. In a recent study of Canadian foreign policy which I co-chaired with my colleague Senator Gauthier, who was then a member of the House of Commons, we cited the Arctic as one of the great dimensions of Canadian foreign policy. The destiny of Canada is linked both internationally and domestically with the Arctic and all the relationships which derive from that. In my opinion, the potential of the Arctic and the territories has been so well stated in other aspects of Canadian life that the tiny recognition for which you ask in this bill would not do justice to the subject. You should not settle for a tiny recognition.
Mr. Nordling: As you said, senator, this bill is only one tiny part of the constitutional debate. I am sure in future discussions, as I said, we will contribute, and will want recognition.
Senator Beaudoin: Senator MacEachen has stated that the Arctic region of our country is of tremendous importance. The famous phrase of Voltaire comes to mind when he was talking about "la Nouvelle France". He said, "ces quelques arpents de neige." Two or three centuries later and we are still talking about it. Obviously, this part of the country of is of great importance.
I have been involved in previous committees in which we had discussions with representatives of the Yukon and the Northwest Territories. I understand that you prefer, by far, the formula of 1871.
Mr. Nordling: Yes.
Senator Beaudoin: Ottawa may create unilaterally a province from the territories and it may adjust the boundaries of the territories. However, there is one aspect which has always greatly concerned me. Other provinces are interested in perhaps - in saying "perhaps", I am being prudent - annexing a territory, but the question is greater than that. The same thing applies with respect to the amending formula. The amending formula is based on a formula of two-thirds and 50 per cent. Currently, the country is comprised of 10 provinces. We do not know what the future will bring. I understand that the territories have the ambition to become provinces one day, but we must conclude from that desire that not only are the territories interested, but the whole of Canada is interested because such a development would change the amending formula. It changes the number of provinces. It has a tremendous effect on many domains in our lives. To go back to the formula of 1871 is not easy because all the provinces - not just Quebec, but the west as well - will say that they are interested in what happens to the territories. Quebec will say it is interested because the amending formula is based currently on 10 provinces. In other words, everything that happens in the north is of tremendous importance to Quebec. Ontario may say the same thing as well as the Atlantic provinces.
Under section 42 the formula is 7-50. I understand that you disagree with it and would like to see an amendment, if possible.
Mr. Nordling: That is an interesting issue. We would prefer to deal with the federal government alone.
I am looking for Senator Murray because, in discussing this issue, we are in his territory at the present time.
Senator Beaudoin: He will not be here today.
The Chairman: For the information of our witness, several opposition members of the Senate cannot be here because they are attending the funeral of the daughter and grandson of one of our colleagues. Senator Murray is among that group.
Mr. Nordling: Mr. Chairman, there was some discussion when the Meech Lake Accord was signed, and the Yukon was concerned then about provincial status. Senator Murray wrote to us and expressed the same concern as you are expressing, Senator Beaudoin, about two more territories becoming provinces. Should that happen, it would affect the 7-50 rule. His point was that it would be possible to make amendments without the support of a single province in Western Canada. He expressed that concern. He told Yukoners on behalf of the Prime Minister back in 1988 that the situation of the territories had not been and was not static. It would continue to evolve. He said that, as the Prime Minister stated in the House of Commons on October 21, 1987, he was fully committed to taking steps to facilitate and accelerate the political evolution of Canada's north.
Again we have the current Prime Minister expressing the same sentiments: "Do not worry, Yukon, because we, the federal government, will look after you."
It is interesting that when we look back on our struggles to be heard in Canada, our allies have come from some unlikely places. Frank McKenna came to our rescue with the companion agreement to the Meech Lake Accord which was prepared to consider going back to the 1871 formula for new provinces. When it came to the Charlottetown Accord, the premier of Quebec, Robert Bourassa, agreed that he would drop his demand for a veto on the creation of new provinces and leave that as an issue between the Yukon and the federal government. In other words, our allies in the Yukon are quite diverse.
Senator MacEachen: It is the wisdom of the east.
Mr. Nordling: Perhaps you are right.
Senator Beaudoin: Was that not the case in the Charlottetown Accord as well? There has been some fluctuation since the Meech Lake Accord. I remember well the question of new provinces and the status of the Yukon and the Northwest Territories. We will soon have a third territory, Nunavut, which will be in exactly the same situation. The situation has gone up and down since 1987. Sometimes it was "yes"; sometimes it was "no". Obviously, the Yukon and the Northwest Territories have not changed their minds. That is natural.
I understand your preoccupation. However, I wish to underline that the status of the Arctic and the territories and their peoples is of concern not only to the territories but to the country as a whole. We cannot divide that. It is part of the preoccupation of the whole of Canada because you are playing a role that is important in the northern part of the country.
If our constitutional structures take care of this issue, it is all right. However, I take it from your presentation that that is not your point of view and that we should do something by way of constitutional reform, a reform that I believe will happen one day.
Mr. Nordling: Yes. I think any bill dealing with the Constitution should be inclusive and not exclusive. The status of the Arctic is of concern to all Canadians. We are talking about a bill which may change or affect the Constitution of Canada. There should at least be a mention of that huge area in the north.
It might be better if a clause were added, as you say, to recognize the importance of the Arctic to Canada, saying that it will be dealt with at some future time, or that would allow for the possibility of an amendment to Bill C-110 to add a clause or to deal with the Arctic. There is concern that, although Bill C-110 is simply federal legislation, politically it will be virtually impossible to amend or to change. With a little effort, we could include the whole of Canada in that bill. It may be able to stand, despite any agreement on the Constitution as a result of the 1997 consultations.
Senator Beaudoin: It will come back because many of us here are of the opinion that if Bill C-110 is adopted, it cannot be but transitory.
Mr. Nordling: Yes.
Senator Beaudoin: Obviously, we will have to enshrine something in the Constitution. At that time, the whole question will be studied again. I cannot see how we will solve the whole problem. No one around the table said it but I do not think we can solve the problem with just one statute. It is a transitory measure, but obviously, even this distinct society that we have accepted will have to be enshrined in the Constitution one day, because it is so factual.
We have no choice; we must deal with the formula of amendment, next year. I hope we will be successful. It is at that time that your suggestions in this discussion may be taken care of. Mind you, you are wise to give advance notice of one year.
Mr. Nordling: We in the Yukon would like to have our aspirations dealt with completely with Bill C-110. If it cannot be Bill C-110, it will be with whatever comes next. We recognize, and I personally recognize, that that will not happen.
I think most provinces have considered Bill C-110, the way it is written, a fait accompli; it is over. Virtually none, other than B.C, have come here to make any strong objections. They will accept it, let it go, on the basis that it is transitory and that it will come up again, and we will have to deal with the issue, if not before, in 1997.
However, if that is the case and this committee actually wants to do something and to make an impact, then I would hope that the committee would recommend that there be a clause in the bill confirming that it is transitory and that it will come to an end, and that these issues have to be dealt with, in the Constitution and not by federal legislation by the government of the day.
One of the things which has been discussed often, and which we cannot seem to get around, is that when we discuss the Constitution of Canada, and even Bill C-110, there is no passion. It is not the will of the people. What we have done in Canada since 1867 is ordered peace between governments, not peace between people. Here we sit, struggling through all this, trying to make sure that different governments in Canada get along with each other. I think that was part of the reason for the demise of the Charlottetown Accord. We worked it out at that level, but the people of Canada did not feel that they understood it, or they felt that something was being put over on them, or they did not feel they were part of it. Because they did not understand it, they rejected it. It may have been a wonderful solution for Canada. Now it is hard to go back and resurrect it.
However, there must be, I think, a feeling in Canada, when we deal with these things, that it is, "We the people", in order to make a more perfect union. It sounds familiar. Probably someone else started their Constitution that way. Whether we look at France, Germany or the United States, their systems are different than ours. We from the Yukon would not have been here objecting to this bill, we would have accepted the specific nature of this bill, if somewhere in it was included, "We the people" so that it was all the people of Canada, or if we had been even mentioned. It is frustrating to feel that we have come so far and then to be faced with a bill like this. Bill C-110 is not something to be ignored. It is an important piece of federal legislation. Not even to have been acknowledged as existing is a bit demoralizing.
Senator MacEachen: How do you think P.E.I. feels?
Mr. Nordling: Probably similar.
Senator MacEachen: They have not bothered to complain.
Mr. Nordling: P.E.I. has tapped into that eastern wisdom that you were mentioning and they have an agreement with Nova Scotia and New Brunswick, and if they can get one on board, the other will come along. Even that would have been more acceptable. If the Yukon had been included in the B.C. region with respect to the veto, then we may have been here objecting to being lumped in with B.C., and having our own individual aspirations ignored, but at least we would have been acknowledged.
Senator MacEachen: You exist, all right. Do not worry about that. We all know it.
The Chairman: Mr. Nordling, concentrating for a moment on your observations about the transitory nature of that which is covered by this bill, as a practical politician, what judgment would you make as to a time line for ensuring that this bill remain transitory in nature?
Mr. Nordling: I am prepared to be quite specific about that: Five years, or before that if an agreement can be reached with respect to amending the Constitution, rather than federal legislation. So it would remain in effect for five years, at the most, subject to being repealed upon agreement.
The Chairman: My second question, Mr. Nordling, is somewhat theoretical but not overly, I hope. As a practical politician, when you are called upon to make political judgments as to what constitutes the public interest of the people of the Yukon, you try to ascertain, for whatever measure may be before you, what is in the common good or the public interest of the people of the Yukon.
Do you think the same kind of judgment-making process operates for a member of the Parliament of Canada, when he or she is called upon to exercise a political judgment as to what constitutes the public interest of Canada, for those things that fall under the jurisdiction of the Parliament of Canada?
In addition to the judgment-making process, is there, in your view as a practical politician, a fundamental difference between what would constitute the public interest of a province or a territory and what constitutes the public interest of the nation as a whole, for which the Parliament of Canada, the Government of Canada, has duty and responsibilities?
Mr. Nordling: The answer is no. It is that simple. The interests, I think, are national. As practical politicians, we must deal not only with our little corners of the world but with Canada as a nation. There are representatives from every region of Canada and they must deal with the nation as a whole.
One of the reasons we are having difficulty getting grassroots support for what we are trying to do is that we are concentrating on different levels of governments getting along with each other, rather than we, the people. As politicians, we have somehow separated ourselves from the people.
I hear people saying, "We want to take this constitutional stuff away from the politicians. The real people should have a say. We should have constituent assemblies and get grassroots input. Enough with these politicians making all the decisions." In fact, that is who we are, and what we are supposed to be doing. We are elected by the people to represent their views. We are supposed to be the voice of the grassroots and the public in working through this.
We seem to have somehow done ourselves out of the job of representing the people of Canada. We are set aside as politicians while the "general public" is someone separate. That is the most difficult thing to overcome. The members of legislatures from all across Canada should come to Ottawa and speak for the people. It is a big problem when, no matter what government is elected and no matter what majority it has, people feel that their voices are not being heard.
I will stop there because I will get into a huge discussion about politics in Canada, and that is not the issue. However, we have a problem in dealing with the Constitution because the politicians are not seen to represent the views of people.
The Chairman: This bill restricts members of cabinet from exercising a judgment that speaks to the common good of all of Canada. They must limit that judgment to a provincial or regional pre-judgment by the part. Is that problematic?
Mr. Nordling: Yes, to a large degree it is. We will create another problem. Bill C-110 may be the thin edge of that regionalism wedge. Many Yukoners are prepared to advocate that there be an amendment to Bill C-110 to give the Yukon a veto if the question at issue affects the Yukon. That is regionalizing the issues rather than nationalizing them. The Yukon would have to show that there is an impact on the territory, and then exercise its veto.
One of the concerns of myself and other Yukoners is that this bill divides Canada into regions and essentially sets them off against one another. We then set up some sort of a mechanism so that the regions can get along. Somehow, we the people get lost in all that.
The Chairman: Honourable senators, I should like to thank Mr. Nordling and the government of the Yukon for appearing here and making this presentation. It is of tremendous assistance to members of this committee as we continue our deliberations on Bill C-110.
Mr. Nordling: Thank you, Mr. Chairman and members of the committee, for listening to all of the witnesses who have appeared here this week. We are very hopeful that suggestions will be made by this committee which will be accepted by the federal government.
The Chairman: Honourable senators, I am pleased to welcome in your name our next witness, Professor Thérèse Arseneau, who is from St. Mary's University, Halifax, Nova Scotia.
As is our custom, Professor Arseneau, we invite you to make an opening presentation which will be followed by a round of questions from members of the committee.
Ms Thérèse Arseneau, St. Mary's University: Mr. Chairman, thank you for having me here today. As I was preparing for this presentation, I found it difficult for a number of reasons, the first being that it is the end of the week and you have already heard many presentations. I was afraid that I would be in danger of sounding redundant by now. I want to try to bring something new to the Senate committee meeting here today. Hopefully, I will bring a somewhat different approach.
I do not belong to a political party. I am not a member of a government. I am not speaking for a particular interest or ethnic group. My approach is an academic one. I admit that I am not without my biases. I am from Atlantic Canada, which is a region near and dear to my heart. I have particular views about representation and federation. I even have some views about reforming the Senate, but I will not get into that today.
One bias that I have, which is important for me to state up front because it underlies my presentation, is that I want Canada to stay together. By that, I mean I want Quebec to want to stay in Canada, although not at any price. I am probably willing to pay a price higher than many of the other presenters from whom you have heard this week. This means I am probably somewhat more sympathetic to the position of the federal government, which I think is totally unenviable and, perhaps, impossible in terms of national unity.
The Government of Canada has made promises to Quebec. It wants to introduce substantial constitutional reform. However, given the present mood in the provinces, I think substantial constitutional reform is unlikely and, perhaps, impossible.
The second point that made it difficult today is that I also believe that opposition is easy. Opposing is easy while constructing is difficult. I would like to be part of the solution rather than part of the problem. I fear, however, that my presentation today will be more on the side of opposition than on the side of construction.
The third thing that made it difficult for me today is the piecemeal nature of this bill. That makes it difficult to deal with because it is not being put into context in terms of the broader national unity strategy. It makes it difficult to get a real handle on the importance and the impact of Bill C-110.
Having said that, when I started analyzing the bill, I found myself asking four main questions upon which I will focus today: First, why introduce vetoes? In other words, what is the underlying intent of Bill C-110? Second, why make them regional vetoes? Third, why go about it in this manner, which means through Parliament, rather than through constitutional means? Fourth, why now? In other words, why now before the announcement of the complete unity strategy?
What is the federal government trying to accomplish with Bill C-110? I have come up with three possibilities. The first one is a need for vetoes for their own sake; in other words, you need to make constitutional change more difficult. You need to be able to slow the process down. A second possible reason is that you need the vetoes, and this bill therefore, for broader political reasons. In other words, you need to honour commitments to Quebec to encourage them to stay in Canada. Since you wanted to give Quebec a veto in this political climate, it would be impossible not to spread it to other regions as well. Hence Bill C-110 and the argument that it is necessary to save the country.
The third reason is one for which I cannot take credit, since it was the federal government that came up with this possible reason. That is to say that this bill is just a consent bill, a starting point, a tool to help guide Ottawa in making regionally sensitive decisions.
I want to demonstrate why the first option, namely that vetoes are needed for their own sake, is wrong; why the second option, namely that vetoes are needed for broader political reasons, is correct but it will not be accomplished by this bill; and why the third option, namely that the federal government's position is that this is merely a starting point, is inaccurate.
I should like to address option number one, namely that vetoes are needed for their own sake, and that we need some way for the regions to slow down constitutional change, or to block constitutional change, or to make constitutional change more difficult. That option seems to imply that, at present, constitutional change is too easy. That is hardly the problem in Canada. The opposite is true. Already, constitutional change is extremely difficult. Ironically, as I will argue further later on, that is the reason why we are at this moment following this route, going through the House of Commons and the Senate, rather than actually following the proper constitutional route. The last thing we need is to make the amending process more difficult. With this bill in place, we end up with one of the most convoluted, complicated amending processes in the world.
Let us look at the overall picture: We already have five formulae in the Constitution. Bill C-110 impacts on the general formula, the 7-50 rule. It is my reading of the bill that before the federal government can introduce a constitutional amendment into the House of Commons, they must seek the approval of five regions: B.C., Ontario, Quebec, two prairies provinces with 50 per cent of the population, and the Atlantic provinces with 50 per cent of the population. My reading of the population of the prairie provinces tells me that Alberta automatically must be one of those two provinces.
In the Atlantic, we have heard that a side deal has been made - at least in the Maritimes - where, according to The Globe and Mail, if P.E.I. could get either Nova Scotia or New Brunswick on board, then the third province would automatically go on board.
According to government sources - and I am not a government member and it has not been announced yet - they claim that that is an inaccurate presentation of the deal. The deal is, rather, an agreement among the three premiers that they would try to reach some sort of regional compromise or regional consensus and, rather than trying to go to the regional provinces to get this consent, it would be on a regional, united basis. However, there is nothing binding, and there is no way of forcing the third province to go along.
It is unclear from Bill C-110 how consent would be obtained from these different regions. Would you just have to ask the premiers and/or the legislatures and/or the people, perhaps through referendum?
Remember, all of this happens before the amendment can actually be introduced into the House of Commons. That is a long process. The amendment would then go into the House of Commons and then into the Senate. It would then need to be ratified again by the same provinces - that is, seven provinces with 50 per cent of the population. If the Charlottetown Accord referendum set a precedent, and many constitutionalists believe it has, then we must go to a referendum as well at the end of all of this.
I argue that this is a long, convoluted and difficult process. I must question the logic of making an already difficult process more difficult, especially given the number of unresolved constitutional issues that are still out there.
Why vetoes? For vetoes own sake, I would have to say no. The second possibility of "why vetoes" is that Bill C-110 is necessary for broader political reasons, and will fulfil promises made by the Prime Minister to Quebec, appease Quebec and save the country. If I thought for even one second that Bill C-110 could accomplish this, I would support it wholeheartedly, despite what I see as some flaws. The problem is that I do not think Bill C-110 will achieve this. I do not think it will satisfy Quebec. I do not pretend to speak for Quebec. I am not a Quebecer. As an observer, though, it strikes me that if Quebecers defeated the Charlottetown Accord because it did not go far enough, I do not see how Bill C-110 will satisfy them.
I also asked myself: What does Quebec want in terms of a veto? I feel that Quebec has sought after a veto on issues that relate particularly to Quebec, but not necessarily a veto on all issues carried under the general formula. They certainly do not want B.C., Alberta and Ontario to have a veto on issues that pertain to Quebec.
I do not think this bill will appease Quebec. Once more, I would have to go one step further and say that Bill C-110 would actually driver us further from the objective of pleasing Quebec and keeping Canada together. I say that because I think what Quebec wants is some more substantial constitutional change.
I question, therefore, the rationale of Bill C-110. I think it will make significant constitutional change more difficult for two reasons: First, the bill is alienating provinces that the federal government needs to have on board for constitutional change - B.C. has expressed its discontent, as has Alberta; P.E.I. questions Bill C-110 - and, second, because Bill C-110 will make future constitutional change difficult. In terms of the broader political issues surrounding Bill C-110, I wish it would solve this problem but I do not think it will.
Option number three is the federal government's position that Bill C-110 is a starting point, and an act of good faith by the federal government towards Quebec. Again, I have problems with this depiction of Bill C-110. First, I find it strange to start with a veto, which I consider the most controversial of all the constitutional amendments and changes that Quebec seeks. To start at the most controversial and most difficult point does not makes sense to me. I do not see it as a starting point; I would see it as the end point. We should start more on common ground. We hear from the provinces that there are certain things they want in common. Let us start with the less controversial issues and move ahead to the more controversial issues.
Second, I do not believe that Bill C-110 is building a bridge but, rather, another roadblock on an already seemingly impassable constitutional road. The first possible reason for having Bill C-110 is that vetoes are necessary. Again, to reiterate, I do not think the bill holds up in terms of that reasoning.
The second question I asked was: Why regional vetoes? The bill has touched on a controversial and sensitive issue: The basis of representation. It has jumped in with a regional version, and a controversial regional version at that.
One of the most interesting and yet unresolved issues that came out of the Charlottetown Accord and the negotiations that came from the Charlottetown Accord was that we have raised the whole question of representation. In that case, it was related to the discussion of possible Senate reform.
There are many competing versions of representation now in Canada. Representation by population is perhaps the most easy because it is the one most broadly accepted. However, there are also several other forms of representation, all with validity, that are fighting to be recognized. Each has legitimate claims - for example, the equality of provinces, the equality of regions and the representation of non-territorial groups. I believe that this is a big key issue in Canada today. It is an issue that needs more discussion and a greater defence of choosing this one version, the regional version, before jumping in with Bill C-110.
The federal government could have avoided a lot of the difficulties related to Bill C-110 by actually having more discussion with the provinces. We certainly could have avoided the B.C. fiasco. I was surprised to read that advisers were surprised by B.C.'s strong reaction. I have lived in the other end of the country and I was not the least bit surprised by B.C.'s reaction. That was something that could have been avoided by more discussion. We certainly could have avoided the strange situation that we are in now, where we have a bill that wants to give vetoes to regions that are opposed to the bill. My question is: Can they veto the bill? We are now in a very awkward situation. I think that, in order to pass this veto bill, you would at least need to have on board the provinces to whom you are giving a veto.
My third broad question was: Why choose this process? Why choose to go through the House of Commons, as we have with Bill C-110, and not follow the constitutional route? On this issue, I have utmost sympathy for the federal government. There is a feeling of the need to save the country, but also a feeling that we are at a constitutional impasse. Another failed constitutional round would be just what would be needed to drive Quebec permanently outside of Canada.
When I first heard about the bill, I thought it was an ingenious way around the constitutional impasse. Something must be done, but if the normal or proper means are closed to you, what do you do? Bill C-110 is the federal government's answer.
Still, I have some questions about the legitimacy of this process. Some questions have been raised this week about the legality of the process. For me, that is not the question. I am not a constitutional lawyer, but I think probably technically and legally, the federal government is entitled to do what it is doing.
However, when you begin to raise questions of legitimacy, the federal government cannot win by choosing this route. Perhaps Bill C-110 is a serious piece of legislation that has fundamental constitutional implications, and other ordinary pieces of legislation have been passed that have been treated as quasi-constitutional, so there is precedent for that. However, if it does fundamentally change the constitutional operation of Canada, then legitimately it should have been done through the proper means. The only way you can justify it is if the end justifies the means, and I am not sure about that.
What does it really say when the federal government, which went to great lengths to patriate the Constitution, to establish proper constitutional means for changing the Constitution, makes an end run around the Constitution in this way?
The second option is that the bill does not have fundamental constitutional significance. It is not necessarily binding on future governments, and they can change it by a simple majority in the House. Again, you cannot win here. Why should it appease Quebec, and, therefore, why pass the bill?
A second problem I have in terms of the process is that we are at a time of great uncertainty and flux, in terms of proper process for constitutional change. The Meech Lake Accord raised questions about the convention of consulting with the public before you introduce constitutional change. The Charlottetown Accord, perhaps, established a convention - or questionably established a convention - that the public need to be consulted through, specifically, a referendum. All of this is unclear. We are in an unclear time in terms of proper constitutional change methods.
What is clear is that the federal government's end run around the Constitution simply further muddles the question. Again, the only way the federal government can justify this end run is that they can argue that the ends justify the means, that the future of the country is at stake and that we cannot resolve the constitutional problem through proper means. Again, this argument depends on accepting that Bill C-110 will achieve the ends - that is, keeping Quebec in Canada, satisfying the promises that the Prime Minister made and, therefore, saving the country. I do not think it will do that.
My last question is: Why now? Why this timing? Why put this bill through separately from the unity package which we are told the federal government is preparing? One possible reason is that there was a need for speed to capitalize on the feelings post-referendum that might have encouraged Canada to accept this bill; the fear that came from the near-death experience of October 30. Unfortunately, I think that sentiment only lasted for about one day. At this speed, we cannot count on capitalizing on that experience at this point in time.
A second possible reason for choosing to do it at this point in time is as a gesture towards Quebec, a gesture of good faith. I question whether Quebec really wants this bill. In addition, if we pass this bill, will what they really want be more difficult to achieve?
We have a perception in the public, at least, of a very rushed bill. The government is right in that we cannot sit back and wait for years, or wait for extended periods of time. There is an urgency involved with the national unity question. However, we could at least wait for the rest of the unity package. We could at least wait for some more discussion on the questions involved, including, perhaps, some public discussion. We must at least have some attempt to establish the conventions for proper constitutional consultation. We must look at whether there are other means around the impasse that exists in Canada.
The spirit of the bill is something of which I approve. Unfortunately, for all the reasons that I have highlighted, I think the practice of the bill is deeply flawed.
The Chairman: Thank you, Professor Arseneau, for your excellent introductory remarks.
[Translation]
Senator Beaudoin: I want to congratulate you on your very interesting brief. You put your finger on certain shortcomings in Bill C-110 and on why it was introduced. Basically, Quebecers want two things: they want to be protected and they do not want any of their rights to be taken away without their consent. They want a kind of negative veto. This is not at all the same thing as a true veto. Essentially, they want to have the right to consent to the loss of any powers.
Secondly, they want more powers in certain areas. Some Quebecers take a dim view of the existence of four or five vetoes in the country. Of course, the first reaction of Quebecers is to say, "We want to protect ourselves." A veto, whether you call it this or not, is very important to Quebec. However, Quebecers also desire a certain amount of flexibility to obtain more. Everything possible avenue has been explored in this country in the past 30 years. In Victoria, four vetoes were proposed while this bill provides for five vetoes.
The Meech Lake Accord made provision for unanimity in ten areas and some even went so far as to say that unanimity should be required at all times. However, no federal state in the world can agree to such an approach.
Is it realistic, therefore, to conclude that no veto is possible, except in Quebec's case in certain areas? Yesterday, Mr. Ryan said that the amending formula is based on the 7-50 principle. When it comes to the distribution of powers, each province has a right to dissent. Quebec agrees with this and so too do the other provinces. He also suggested that the phrase "including Quebec" could be added to the 7-50 formula. I see some problems with this if it were true in all cases, but I do not believe that it would pose any problems in the area of language, culture, the Civil Code and so forth.
You are not from the province of Quebec. Do you think it is possible to grant Quebec this veto within the framework of the 7-50 formula, at least in some areas? There would be no other vetoes, with the exception of the federal veto, but this is normal in a federation. The federal government speaks for the whole country, and it has to say yes or no at some point.
[English]
Ms Arseneau: I think it will all come down to how the thing is actually sold. Certain things in Canada have become a lightning rod. You hear "distinct society" and people react badly; you hear "veto for Quebec" and people react badly. However, very often the people you hear from are not, in fact, expressing the sentiment of the majority.
I was involved in the Calgary constitutional reform conference, the peoples' conference. At one point, we moved into smaller workshops. The delegates from Alberta and the other western provinces would not move forward to give Quebec anything. The delegates from Quebec expressed the view that Quebec does not want a veto over everything. It is not necessarily a widespread veto; it is a limited veto in areas that directly affect the significance of what Quebec is. Once that was explained, I found that other delegates were far more willing to go along. The workshop then proposed that we accept an amendment for Quebec.
I think the problem will be how this issue is sold. In Canada, we do not think simply in terms of a veto. There is a real fear that power is a zero sum equation, and that if Quebec has more power, somehow the rest of us have less.
In my view, Quebec has expressed these feelings consistently and passionately for a very long time. These feelings have not come out of the blue. I think there should be room to accommodate Quebec. Whether you would be able to sell that to the other provinces is an entirely different matter.
Provincial leaders, on the whole, are very much opposed to the idea of a veto. They think that if Quebec gets a veto, somehow they are moving backwards. If you explain it to the people, it must be explained properly and along the terms you have outlined, senator.
[Translation]
Senator Beaudoin: I was discussing this matter with my colleague, Senator St. Germain, and with others. Some people maintain that if there are going to be four or five vetoes, then why not give them one? It is always the same thing. However, if Quebec was the only one to be given a veto over areas of vital concern to it, at least this could be justified in some way. It is perhaps harder to justify four or five regional vetoes, but it can be done. One can argue representation by population and so forth. I have no problem with that. However, where this issue is concerned, we have been running around in circles for the past 30 years. You are going to tell me, "Yes, but the rest of Canada will not go along with this." That may be true and that is what I want to find out.
If, on the other hand, Quebec ever expresses the desire to split from the federation following a referendum, we can be facing a situation much worse than if we had given Quebec a veto in certain specific areas. It will be even harder for English Canada - the Canada outside Quebec, because there are Francophones outside Quebec.
I wonder if there is any possibility of the federal Parliament coming up with a proposal which would guarantee Quebec no loss of powers and reassure it that it is distinct in some areas - this has already been done with the resolution which we supported. What if the federal government were to give it the power to protect these rights - whether we call it a veto or something else? What if the government were to ensure that Quebec would always have one third of the seats on the Supreme Court?
Then, at least Quebecers could say, "If we remain within the Canadian federation, we are protected." However, if they do not feel this way, they may be tempted to separate. That is an understatement. The role of the federal government is to prove to Quebecers that their place within the Canadian federation is secure and that they can be at ease there.
I believe this is possible. I am a federalist and I have always said that it would be sad indeed if we failed to keep Canada together because we have everything we need to succeed. We simply have to see things as they are.
The solution may perhaps lie in giving Quebec a selective veto in certain areas and broader protection with respect to the number of seats it has in the Supreme Court and in the redistribution of powers. I do not see why Quebec should not have jurisdiction over culture. Culture is an important area. It will never destroy Canada. On the contrary, it would keep us distinct from the United States. Our problems are not as serious as that. Where numerous problems have surfaced in the past 30 years is when we try to give something to one province and all of the other provinces demand the same treatment. I am saying that we should redistribute powers based on needs, not on egalitarian aspirations.
Ever since the Charter of Rights - let me tell you right now that I like the Charter of Rights a great deal - people have maintained that everyone is equal, that the provinces are equal as well. They are equal in the sense that section 92 confers upon them the same powers. I agree entirely with that. However, in many other areas, there is no equality, beginning with the amending formula which refers to 50 per cent of the population. The amending formula favours Quebec and Ontario; 50 per cent, the two provinces together. They enjoy a full veto.
We must be realistic about the problems we have. I wonder if granting a restricted veto to Quebec in those vital areas would not be the ideal solution.
[English]
Ms Arseneau: The problem is that Quebec has expressed a need for change, but you must realize that other parts of the country have also expressed a need for change. I am very sympathetic to what Quebec wants, but the perception out there is this: Why do we only focus on what Quebec wants?
Senator Beaudoin: Because the threat comes from Quebec.
Ms Arseneau: But you could equally argue that there is a threat from B.C.
Senator Rivest: Is it the same threat?
Ms Arseneau: It is not as strong.
Senator Beaudoin: Is it that urgent? Do you think there will be a referendum in B.C. in three months?
Ms Arseneau: Let me finish, please. I agree that Quebec has expressed legitimate concerns, and I would like to be able to accommodate those concerns. If you are asking me how we sell this to other parts of the country, the worst thing we can do is to be perceived to be giving something to Quebec while ignoring the legitimate concerns of other parts of the country.
I have trouble with equality being defined as "same". Equality does not mean treating everyone the same way. If Quebec needs a limited veto, and better representation or a better guarantee of their representation on the Supreme Court, then they should have it. I agree that equality does not necessarily mean you must to the same thing for P.E.I. because that is not exactly what P.E.I. needs. To me, equality is accepting the concerns of each province or region and treating those concerns with equal importance, fairness and evenness. If Quebec is saying, "We have these legitimate concerns and we expect you to accommodate them" then I agree. That is what this federation is about.
However, equality also requires an understanding that, out West, they feel - and rightfully so - that their concerns are not necessarily being considered. You do not need to give them the same thing, but you can go to the West and ask what makes them uncomfortable in this federation. Perhaps an appointed Senate makes them uncomfortable. We need to look as carefully at the legitimate concerns of the West, and that would be equality.
Senator Beaudoin: I do not disagree with those principles.
[Translation]
Senator Gauthier: Mrs. Arsenau, we listened to some very interesting testimonies this morning. You are one of many people to give us their opinion. Yesterday, Mr. Ryan expressed a viewpoint that is quite different from yours. Obviously, he is Quebecer, a politician and a man well known for his ability to analyze complex situations such as the Quebec problem.
According to Mr. Ryan, from a strategic and political standpoint, the time was right for the federal government to take the initiative to give a veto back to Quebec. We heard from other witnesses, including one late yesterday afternoon, John P. McEvoy -
[English]
- who said the bill represents the logical progression of thought or positions in relation to a general amending formula. It is neither unconstitutional nor illegal.
He went on to say - and I want to quote because I think it is important:
Bill C-110 is a political response to a particular need which is rather obvious, reflected in the October referendum results, the nature of the official opposition party in the House of Commons, and the government in Quebec City.
Having said all that, you seem to question why the federal government started with the House of Commons in this process. I submit to you that the only body that has an absolute veto is the House of Commons. That is where you start. They say, "We will share this veto" because that is what they said. This bill is a small step towards trying to reach a consensus, possibly within the next year or so. You seem to think that that was not an appropriate measure; that we should have been more comprehensive in our approach and wait for the whole package of proposals which will be made public within the next few weeks.
The House of Commons passed a resolution on the distinct society; the Senate did the same. Mr. Chrétien made his promise in Verdun, at the end of the referendum. Everyone knew about it. He made it quite clear. Anyone who is well-informed could have told you that the only way he could keep his promise was to do exactly what he did, because of the political situation. I will not comment on that because I think you want to stick to the academic end. I do not want you to get involved in politics here.
Still, the political reality in this country is that we are threatened. I am not a Quebecer. I am a fourth-generation Ontarian by birth. This country of ours, if it wants to stick together, must answer to some of the preoccupations that have been made quite clear to me. One of them is that Quebec is not happy with the slowness of the process. You have alluded to that. I had the impression you were saying to me that this is not the appropriate time; that this is too much, too fast.
Ms Arsenau: No, it is too little, too fast.
Senator Gauthier: That does not matter as much as the fact that you are not in favour of this bill. You seem to think we are answering a specific purpose and request of Quebec. Yes, we are; indeed we are.
Ms Arsenau: You obviously misunderstand the basic premise of what I say.
Senator Gauthier: Possibly.
Ms Arsenau: I want very much for Quebec to stay in Canada. If this bill could be a real answer to what they want, if I felt that this bill could reach that objective, I would say, "Pass it." I would stand wholeheartedly in favour of it.
Senator Gauthier: You do not believe that Mr. Ryan is a decent and credible -
Ms Arsenau: Oh, please. Of course, he is decent and credible, but we are allowed to have differences of opinion without saying someone is not decent.
Senator Gauthier: But you made a statement that this bill would not satisfy Quebecers.
Ms Arsenau: I also said I do not speak for Quebec but, as an observer, I would have to say that, given what they have wanted in the past, if the perception is correct that the people voted against the Charlottetown Accord because it was not enough, then why would I believe that this bill would be enough to appease Quebec? It seems to me a lot less than -
Senator Gauthier: No one ever said that. It is a small step in the right direction.
Ms Arsenau: Let us take that point. That is where we differ. We agree on what the end point should be. I personally would like to accommodate Quebec, but I do not think this bill will do it. This bill will be counterproductive in terms of doing it.
You describe it as a small step towards reaching consensus. How do you reach consensus when B.C. is opposed to it; when Alberta has expressed opposition; when, obviously, the Maritimes have problems with the way in which the bill is constituted? If you were genuine about wanting to take a small step towards consensus, you would try to reach some consensus with the regions. This is my point. However, rather than having us reach consensus, this bill will push us further away from a consensus that we could have reached post-referendum.
Senator Gauthier: I understand what you are saying, but there are those who do not hold that view.
Ms Arsenau: That is fine. I am not saying that my view is the only view, but you asked me here to express my view, and that is what I am expressing.
Senator Gauthier: But it is based mostly on perceptions of yours, and not on the bill itself. It is a perception when you say that you do not see this as being the end-all and be-all to the constitutional dilemma that we are in.
Ms Arsenau: I perceive it as not being enough to appease Quebec. I base that on the Charlottetown Accord not having been enough. It is a logical perception.
You talk about political reality. You have your political reality; I have a political reality, too, as I sit in the Atlantic region.
Senator Gauthier: Of course.
Ms Arsenau: My political reality is that there is no region in this country that wants Quebec to stay in Canada more than the Atlantic region. As a citizen of the Atlantic region, I probably have a higher stake than anyone in keeping Quebec in Canada. It is something I want very much.
We are differing on the impact of this bill. I think we agree on the bill's intention, but we are differing on my perception of the overall impact of this bill. My perception is that if you grant that Quebec wants fundamental constitutional change, then this bill makes that constitutional change more difficult because it is alienating provinces who need to be on board for fundamental constitutional change. You are, therefore, making an already difficult amending process more difficult.
Senator Gauthier: It answers one specific question: It gives an assurance to Quebec that no constitutional change will occur without its approval. That is all it does.
Ms Arsenau: No constitutional change will take place without B.C.'s approval. It will not take place without Ontario's approval. It will not take place without Alberta's approval.
Senator Gauthier: That is right.
Ms Arsenau: If I was a Quebecer, I would not be reassured by that, considering that I want fundamental constitutional change. This is not just about a Quebec veto; you have given a veto through population to Alberta as well.
Senator Gauthier: I understand your point, but that is not the purpose of the debate here. This bill gives an assurance to Quebec that no amendment will be forthcoming within the next short while that will be made without their consent. That is all it is. It is a consent bill.
Ms Arsenau: As I said, I think the spirit of the bill is right.
Senator Gauthier: That is all it is.
Ms Arsenau: But I think the actual impact of the bill will be counterproductive.
Senator Milne: Ms Arseneau, you have said quite clearly that you think this bill was written in good faith but you disagree with what the results will be.
Senator Beaudoin has outlined why Quebecers want a veto. Claude Ryan here the other day said exactly the same thing. Yet you say this bill does not, and will not, appease the present government of Quebec and that it is, in effect, doing an end run around the proper constitutional approach.
Given that the proper constitutional approach will take place next year, do you not think that this bill is really doing an end run around the government of Quebec and trying to extend a hand to the people of Quebec? With that view of the bill, how would you recommend selling the bill?
Ms Arseneau: You have raised a very important point, namely, that you must decide who is your target audience. I do not think the target audience is the government of Quebec, because I do not think you will sell the current government of Quebec on the idea of staying in Canada. I think you are right. Really, we must be appealing to the people of Quebec. That does have to be our strategy. Polls have consistently shown that even many people in Quebec who voted for separation would prefer to stay in Canada. They are really our target audience.
If this bill will do good, then I am all for it. My concern is that it will be counterproductive. To make it productive, you must sell it as a bill of good faith, as a gesture, a starting point; all those things that you talk about. How do you do that? First, you target the people. How do you get to the people? You must get to the people through the French-language media, and you must have effective, credible leadership in Quebec.
Actually, the steps that were taken in the cabinet shuffle yesterday were worthwhile steps. I know Professor Dion, and if anyone can sell this to Quebec, he is the one. I am totally non-partisan. I do not belong to a particular political party. I have no political agenda.
Senator MacEachen: That is a big weakness.
Ms Arseneau: When I watched the Quebec referendum campaign in the French-language media, I saw a different campaign from the one I saw when watching the English- language media. The rest of Canada followed the English- language media too much and thought that was the way the campaign was going. You got a different perception when you watched the French-language media. That is where we must sell it. I thought Professor Dion was one of the few bright sparks speaking for the No side during the referendum campaign. If we are to attempt to sell national unity, I would stay away from the tough-love approach that Jeffrey Simpson mentions.
For the country to stay together, you must have a dual approach. You must say that, realistically, a vote for separation does not mean that you will be able to remain part of Canada, which is what the polls indicated many people believed. You must point out the consequences and what it will cost Quebec to leave. However, we must also make it appealing for them to stay.
The other side and has been lacking at times. It is the good-cop\bad-cop approach. You must sell a positive side to staying as well, not just the fear factor. Again, I am frightened by the idea that the strategy we must take is very much the hard line: Your life will be miserable without us. There is a place for that, but if this is to be a marriage that will stay together, it is not enough to keep someone in a marriage through threats. It is important to keep the marriage together through positive means. That is how I would sell the bill.
Senator De Bané: What do you think of this thought of Dr. Peter Russell's, who said that in 1867 there were three visions of Canada that were put forward. John A. Macdonald wanted to create a unitary state and, failing that, a senior government with junior governments. This is why he managed to put in the Constitution the power of disallowance. There was a second vision, which was the one of the provinces, that there should be a partnership between equal provinces. Finally, there was a third vision, which was that this new country was a partnership between English and French-speaking peoples, put forward by Cartier.
Dr. Russell says that the problem is that none of those three visions prevailed; they did not settle the issue. He said that 125 years later, we are still debating which of those three visions is the right one. He said that this is really the heart of the problem of this country. You have three visions. We did not settle that question on day one, and 125 years later we are still debating the same issue. Do you agree with that?
Ms Arseneau: I think Peter Russell is one of the great minds of Canada. I think his assessment is very accurate.
I would go one step further: The problem - and the reason why we are still here - is that no one of these visions accurately reflects Canada. Canada was always destined to be something more than any one of those visions. On the plus side, a mix of these three visions is what makes Canada such a unique, wonderful country. The problem is that that makes it a difficult country to operate, and to keep together.
I would not be happy with any one of those visions. What makes us so special is that we do have this mixing; we are a hybrid of the three. The problem, of course, is that it is hard to keep that hybrid together.
Senator De Bané: However, do you not think that what has prevailed since 1982 - and I think the next witness, Mr. Meekison, was the architect of the formula - is the idea of ten equal provinces? There was a shift toward that view in 1982. When you compare the amending formula put forward by Trudeau and the one put forward by the western provinces, there has been a movement toward equal provinces.
Ms Arseneau: We do not have any one clear vision there. What we have is a real mixture. You see in some places the equality of provinces, such as in the unanimous consent clause. You see the equality of provinces through our executive federalism at first ministers conferences. You see a different category of provinces when you take in the general formula of 7-50. Once you bring the population factor into it, it is a step away from strict equality. When we talked in terms of the Charlottetown Accord reforming the Senate, this was really where you could clearly see the battle between the visions of equal provinces versus that of equal regions. It is a question we have still not resolved.
It is interesting that this bill has waded into this mammoth discussion about the equality of regions rather than the equality of provinces. That is a defencible form of representation. We see it in terms of how the Senate was constituted in 1867. It was constituted on equality of regions rather than on equality of provinces.
We have a real mix in relation to our Constitution. I would say that the unanimous consent clause of 1982 was a step toward equality of provinces; our dependence on first ministers conferences was a step toward equality of provinces. However, the general amending formula was a step away from equality of provinces. When we talk about reform of the Senate and the basis of representation there, we see clearly that this issue is not resolved.
Senator De Bané: Dr. Arseneau, as you know, no one specific province is mentioned in the general amending formula, so it goes toward not giving pre-eminence to any one province. You have pinpointed the weaknesses of this bill. On the other hand, the rationale behind it is very clear, namely, that the history of Canada is one of failed attempts to find an amending formula. We have tried, throughout the whole history of Canada, to devise one. Only in 1982, under unique circumstances, was that issue finally resolved, and with great difficulty.
Obviously, if the Prime Minister wanted to deliver, the only way he could do it was by lending the formal veto through a bill without touching the Constitution. Anyone with a cursory knowledge of the Canadian Constitution knows that the liklihood of amending it successfully is minimal. The logic behind it is very clear. This is the only way in which we can be sure of delivering.
Ms Arseneau: But does it really deliver? You say that 7-50 gives pre-eminence to no one province. I think it gives pre-eminence to Quebec and Ontario. There is no doubt about that.
Senator De Bané: Neither of them has a veto. One of the two is enough.
Ms Arseneau: I am not speaking of a veto, but we are not strictly equal under 7-50. I believe that it does give some pre-eminence.
Senator De Bané: There are two parameters: The first is the number of province. Under that, P.E.I. is one province as Ontario is one province. The second is the weight of population. Under that, you need one of the two provinces which together have 60 per cent of the Canadian population, but none of them is essential.
Ms Arseneau: Yes, but it gives them a pre-eminence.
Senator De Bané: It is a similar situation to that which prevails in the European Common Market, where one country among the four majors cannot prevent. Neither England, France, Germany nor Italy can prevent, by itself, an amendment to the European Common Market. This is the same thing.
Ms Arseneau: We disagree on that. Perhaps we should just agree to differ.
Senator De Bané: Perhaps the author of the formula will explain it. He is the next witness.
Ms Arseneau: Your second point was that you want to deliver something to Quebec. How do you deliver it in this present constitutional impasse? You are right that there is no reason to believe that constitutional reform will work right now. You want to deliver to Quebec.
Will this really deliver for Quebec? It strikes me that Quebec has wanted a veto for itself in areas of Quebec, to prevent anything from being passed that would take rights away from Quebec. However, this veto has been extended to the other regions as well. Is Quebec happy with Alberta having a say on possible amendments that would favour Quebec?
I agree with you that Quebec wants a veto. We need to deliver. We are in a dire situation right now. It could be called an emergency situation. We need constitutional change, or we need this gesture toward Quebec. The perception is that the proper means are not open.
However, you are basing your argument on the belief that this bill will deliver for Quebec. My fear is that it will not. It does not strike me that this bill delivers what Quebec wants. Does Quebec really want Alberta, B.C. and Ontario to be able to block things which they may want in terms of constitutional reform?
[Translation]
Senator Losier-Cool: I agree with my colleague that your presentation was very interesting. Like you, I am also from the Maritimes. I have a great deal of affection for Quebec. I am a New Brunswick francophone who loves Quebec, just as Quebecers already have an affinity for Canada.
My question concerns the division of powers. As Senator Beaudoin said, there needs to be some good faith in addition to political and personal initiative or even the tough love approach that was mentioned.
I believe that if we look at the list of priorities, we have here an answer to the Quebec problem.
If you were in my shoes and had to vote, would you reject Bill C-110 completely? Or, would you be prepared to suggest some amendments in order to improve it?
At the beginning of your presentation, you stated that you wanted to do something for Quebec and that you did not wish to adopt a negative attitude right away.
[English]
Ms Arseneau: I agree that there must be a sense of good faith opened up between the federal government and the people of Quebec, and possibly the government of Quebec. This is one way to do it.
Yes, I think that is the strength of the bill, if it really is seen as a gesture of good faith. In that sense, you would interpret the bill as basically being a bill of intent. You need to look at the intent of the bill. The implications of the bill are secondary to the intent. If you are right, and that is all that it is, then I have fewer reservations about the bill.
However, my main reservation is that I am not sure that the bill is totally innocuous. I am not sure that the bill will not become more than just a "spirit of intent." It may be a bill that could prevent significant change in the future. That is basically the point of my presentation.
Your second question is difficult for me to answer because I have very strong views about what the Senate can and cannot legitimately do.
One of my concerns about this bill is the legitimacy of the process; the fact that the government has gone through the House of Commons rather than through the broader constitutional path. I must apply that same criteria to what the Senate can do. Yes, the Senate would legally have every right to do what it wanted to the bill. I have questions, though, about the legitimacy of that. The best thing would be for the bill just to go away. However, I am not sure that it is in your lands to accomplish that end.
You ask whether there is a simple quick fix to the bill, whether there is an amendment that you could propose that would greatly improve the bill. You would at least need to get on your side the regions to which you are giving a veto. It is a very strange situation that the federal government is arguing that it will give a veto to these regions, while some of them are saying that they do not want it. I believe that you would need to get some sort of approval. The government was not specific about what means you would need to gain the consent of the provinces because they wanted to leave it open to the provinces. Again, that is an area that leaves the question wide open. What sort of process are we talking about here? Are we talking about premiers, legislatures and people? By leaving that open, there is also the danger of drawing the process out.
I am afraid that I am not being very helpful on this matter. Again, it comes back to the question of what I think legitimately the Senate can and cannot do when it comes to a bill such as this.
[Translation]
Senator Beaudoin: You asked if Quebec was happy or unhappy. There are several opinions.
Those who, like Mr. Ryan, place the focus on the veto will say that this is an interesting piece of legislation, one that has the advantage of protecting Quebec for the life of the bill. Who knows, it may be in force for some time given the success that we have had with our constitutional amendments.
Others will say that the bill reassures Quebecers. However, those who want some changes will say that five vetoes are granted in all and that this will make it more difficult for Quebec to obtain more.
That is what I mean when I say that the reaction to the bill has been somewhat ambivalent. To the extent that it reassures Quebecers, they are happy with it. However, to the extent that it may complicate things, they may not be happy with it. It all depends on whether you like the veto formula or not.
Quebecers will always say that in any case, this legislation may last one or ten years. No one knows. Some will say that the bill has both merit and disadvantages. Perhaps. However, Quebecers will tell you that they want these provisions entrenched in the Constitution.
Read the history of Canada. If ever anyone fought to have rights entrenched in a Canadian Constitution, it was Quebecers, Acadians, French Canadians and people from all provinces. Our history is constitutional in nature. We have become experts in this field. We may be the only country in the world like this and I am not alone in holding this view.
[English]
Ms Arseneau: What I have to say has more to do with the questions asked by Senator Gauthier as opposed to yours, Senator Beaudoin. We are in a tricky situation now. What we are talking about has, perhaps, more to do with perception and intent rather than the actual tangibles of the bill. Although I worry about the bill being passed and making future constitutional reform more difficult, I also worry about the perception that will come as a result of defeating the bill. That is a real danger.
We can argue that the Quebec government does not want it. If you are a No force person, I fear you cannot win in this situation. There are also dangers in passing the bill. Separatist forces will be able to make use of its defeat.
No matter what happens, what needs to be emphasized is that this cannot be seen as a partisan split; the stakes are far too high. We are talking about the future of the country. This is not a game where we split along party lines. We must ensure that we are not talking about partisanship here but, rather, that we really look at the bill. I figure we are all here because we are federalists. We are people who want Canada to stick together. At this stage, the question is: What will be most effective in terms of achieving that goal? It is a difficult question to answer.
Senator Gauthier: I do not want you to get the wrong impression about me. You have touched upon something that is not only a perception but a reality. If, on February 2 at 5:30 the Senate defeats this bill, I predict there will be a terrible ruckus in the province of Quebec. If, on the other hand, we pass it, it may be greeted with a yawn. Some have told us that that could be the result. In that case, I say to you there is nothing in this bill which prevents you, as a Nova Scotian, or anyone else in this country, from coming up with some darned good ideas on how to better amend this Constitution of ours, or how to make it more appropriate for the federal state. Nothing in the bill prevents that. It only stops the minister from introducing a motion or resolution. It does not prevent any other province from taking action.
All of those provinces that you have mentioned, if they have something constructive to offer then I invite them to bring it forward. Do not blame the federal government, which must respond to a very difficult and immediate problem. The answer my colleagues and I are trying to give you is that, indeed, the alternative would have been more difficult.
Ms Arseneau: You have now put us in the awkward position of having to make a decision on this bill. I also said that I think the end could have been better achieved if the government had waited to bring forward this bill as part of a broader unity strategy.
The question is: Will it be treated with just a yawn? Perhaps that will be the case in Quebec. However, the federal government must not lose any of its leadership strength because of this bill. If people are looking to the federal government to be the leader in terms of coming forward with a unity strategy then, yes, it will be greeted with just a yawn. That is conditional upon the federal government not being prevented by Alberta or B.C., for example, from introducing leadership and a unity package.
There is room for the bill to be more than just a yawn; to be more than the innocuous thing that you depict it as, that is, a bill of good intent.
The Chairman: On behalf of the committee, I wish to thank you for your testimony, Ms Arseneau.
We now call upon our next witness, Professor Meekison, to come forward. The professor comes from the University of Alberta.
You are invited to make an opening statement, Professor Meekison, which will be followed by questions from members of the committee.
Mr. Peter Meekison, University of Alberta: First, Mr. Chairman, I should like to thank you for the privilege of being here this morning to share some views with you on what is an extremely important subject.
One of the longest-standing subjects of Constitutional reform is the process for amending the Constitution. Bill C-110 is but a continuation of this odyssey.
The Canadian Constitution, when it was drafted, unlike those of the United States and Australia, did not include a process for amendment. As a result of this omission, the search for an acceptable amending formula has been dominated by one particular preoccupation: a concern which I call the need for protection.
Ever since the question of the need for an amending formula arose at a first ministers conference in 1927, arguments were developed to differentiate certain parts of the Constitution. Some parts were more central to the functioning of the federal system, or reflected specific minority interests. Such provisions were thought to require protection. Consequently, discussions on the amending formula compartmentalized the Constitution, where different thresholds of provincial support were needed before an amendment could be secured. Right from the beginning, it was recognized and accepted that some amendments would require unanimous consent of the provinces, while others would require a lesser test.
The idea of differentiation is easy to grasp but difficult to implement because opinion differs as to which sections of the Constitution should be subject to which threshold. As a result, two recurring themes tend to dominate discussions on a suitable amending formula. The first is that the Constitution needs to be compartmentalized with respect to constitutional amendment, and the second is that certain minority interests require protection through the exercise of a veto. Both themes are reflected in this bill.
When considering constitutional amendment, the logical question is: What does it take to secure an amendment? In the case of Bill C-110, the question becomes: What does it take to block or veto an amendment? While the distinction may be lost on most people, the difference is important: the former approach is amendment recognizing the need for change while the latter places more emphasis on protection.
With one notable exception, the various amending formulae which have been proposed and promoted over the past 69 years have required different combinations of provinces - and I emphasize the word "provinces" - along with parliamentary approval as the foundation upon which a national consensus is determined. The one exception to this approach is the 1971 Victoria formula which introduced a regional consensus as the basis for approval. While it is correct that all provinces agreed to this formula in June, 1971, it is equally correct to say that all provinces agreed with the Fulton-Favreau formula in 1964.
Bill C-110 is patterned after the 1971 Victoria formula. The central element of the bill is the Quebec veto, a matter addressed in both the Meech Lake and Charlottetown constitutional discussions. It is clear that the Victoria formula, based as it is on a consensus of regions, gives Quebec, and by necessity the other regions, a veto. Here is the central dilemma: How can Quebec acquire a veto without other provinces or parts of Canada receiving similar treatment? The Victoria formula provides one answer; unanimity provides another.
To me, the justification for some form of protection arises from the perception that a particular provision of the Constitution is of such overwhelming importance that it cannot be altered without the consent of the province or provinces affected. The 1982 amending formula establishes another approach to protection. Provinces can be shielded from certain amendments through opting out of the amendment, and in certain cases receive financial compensation.
One of Quebec's five conditions for acceptance of the 1982 Constitution Act was restoration of the Quebec veto. The Meech Lake Accord gave Quebec, and, as a result of negotiations, the other provinces, a veto over amendments referred to under section 42 of the amending formula. In short, the unanimity list contained in section 41 was expanded.
In my view, Bill C-110 goes much further than the Meech Lake Accord because it applies not only to section 42 amendments but also to all other amendments that fall under section 38, and which are not specifically exempted from the bill.
While the raison d'être of Bill C-110 is understandable and reasonable, the bill generates a number of fundamental questions about the amending process, and ignores some recent lessons with respect to constitutional amendment. In its design, the bill establishes a regional consensus for constitutional amendment as opposed to one based on the principle of equal provincial participation. It is useful to point out that the general amending formula found under section 38 of the Constitution Act, 1982 has two thresholds. The first is that, in addition to Parliament, a certain number of provinces, two-thirds, must be in agreement. At the moment, two-thirds is equal to seven provinces. The second is that those provinces must represent 50 per cent of the population, which reflects the majoritarian principle. In other words, at least Quebec or Ontario must be in favour, at least one of the four Atlantic provinces, and at least one of the four western provinces.
It is true that certain amendments can be passed without Quebec's consent, the issue which Bill C-110 is attempting to remedy. The general amending formula of two-thirds and 50 per cent is found in the Fulton-Favreau formula, which all governments agreed to in 1964.
When Bill C-110 was first tabled, four regions were identified: The West, Ontario, Quebec, and Atlantic Canada, paralleling for the most part the Senate divisions found in section 22 of the Constitution Act, 1867. With respect to the western region, since the Victoria formula was first proposed, British Columbia has argued that Canada consists of five regions and that the West, in reality, consists of two regions: British Columbia and the prairies.
In 1976, during discussions on constitutional reform which then took place amongst the provinces, British Columbia again expressed its preference for a five-region approach, but also in 1976 the Alberta provincial legislature approved a resolution affirming the principle of provincial equality. To this day, the government of Alberta has been a consistent advocate of provincial equality as a principle of the Canadian federal system.
Bill C-110 refines the provinces even further. There are three first-class provinces; that is to say, those with the designated veto: Ontario, Quebec, and British Columbia. There is one second-class province: Alberta, which, for the foreseeable future, will have a veto in the prairie region but which requires the support of either Saskatchewan or Manitoba to secure an amendment. There are five third-class provinces which must combine with another province to secure an amendment: Saskatchewan, Manitoba, New Brunswick, Nova Scotia, and Newfoundland. There is one fourth-class province: Prince Edward Island, whose opinion can in no way determine the outcome of an amendment.
To me, the regional approach to constitutional amendment is a total negation of the principle of provincial equality that is the very foundation of the 1982 amending formula. To this extent, the bill undermines an existing provision of the Constitution by introducing an entirely different approach to constitutional amendment, an approach which was dropped in the constitutional agreement of November, 1981. It will certainly influence the dynamics of negotiations, not just on amendments covered by the bill but on all being considered at any point.
With respect to both Prince Edward Island and British Columbia, it is worth recalling that in the fall of 1980 the initial draft of the patriation resolution included a 50 per cent population requirement for both the Atlantic and western regions. After the public hearings, both the Atlantic and the western consensus were changed to any two of the four provinces. It is somewhat ironic that, at a time when we are trying to protect Quebec's interests through a sharing of the House of Commons veto, the governments of New Brunswick and Nova Scotia - at least according to newspaper reports - have offered to share their newly-acquired joint veto with Prince Edward Island.
With Bill C-110 requiring a regional approach to constitutional amendment, one should not dismiss the precedent that is established by this policy. It is not unrealistic to anticipate the extension of the regional principle to other potential elements of constitutional reform. Two immediately come to mind: Senate reform and the composition of the Supreme Court of Canada. It would be more difficult now for the federal government to ignore arguments that the principle identified in Bill C-110 should not be extended to a reformed Senate or Supreme Court.
A second problem is that this bill adds another obstacle to what is an already difficult amending process. What is not clear from the bill is the time frame within which provinces must make a decision. To be sure, the time constraints established by section 39 of the 1982 amending formula still apply, but some indication of when a decision is required from the provinces would improve the bill. It is not unusual to have conditions attached to a loan. If a province is given a veto, then it should be required to express an opinion and not sit on the sidelines, waiting to see who casts the first veto. Another problem with the bill is that it is not clear how provincial consent is given.
A third problem is the linkage, if any, between this legislation and the 1992 Referendum Act. That legislation suggests that the Government of Canada can and will be proactive with respect to seeking constitutional opinions. To some degree, I see the principles of this bill being diametrically opposed to the principles of the Referendum Act. I am uncertain how these two acts can be reconciled, since one delays government action and the other appears to encourage it.
In looking at the history of constitutional amendment in Canada, the Government of Canada has ordinarily been front and centre in the development of amendments. While I recognize that under the amending formula any amendment can be initiated in any legislature, our experience to date suggests that most amendments are likely to emerge as a result of an intergovernmental negotiation.
Since the bill deals with the ratification of constitutional amendments, one might question the wisdom of the government's limiting its role in securing parliamentary approval. I am assuming that if the Government of Canada was not committed to a proposed amendment, it would encourage Parliament to reject the resolution, thereby cancelling the purpose of the regional veto.
Since the Parliament of Canada is the only legislative body representing all Canadians, it may strike some as odd that they would be the last legislature to pronounce on a resolution. Once the requisite members of regions have given their support to an amendment, would Parliament have any real opportunity to alter the proposed amendment or to hold hearings on it? Does this bill make both Houses of Parliament merely rubber stamps? Not only is the Government of Canada's role diminished, but it appears that Parliament's role is also, as a result.
If anything is certain about both the Meech Lake Accord and the Charlottetown Accord experiences, it is that the public wants to be involved in the constitutional amendment process, including both the drafting of the amendment and its ratification. This bill does not address the matter of public involvement at any stage, and appears at odds with the premises of the Referendum Act.
Although our experience with amendments under the 1982 amending formula is somewhat limited, the two most celebrated attempts - the Meech Lake Accord and the Charlottetown Accord - are best characterized as omnibus or mega- amendments incorporating a wide range of specific changes in a single resolution. For example, both proposals combined amendments which required approval under section 38, the general amending formula, and under section 41, the unanimity provision. An analysis of both the Meech Lake and Charlottetown agreements shows that a number of the provisions would come within the scope of Bill C-110 - for example, first ministers conferences.
Does the introduction of a requirement for a regional consensus influence the Government of Canada's freedom of action under similar circumstances? To me, the answer is yes if the proposed amendments had been negotiated as a package. The other alternative would be to introduce a series of resolutions according to the particular amending process which was required, but this would complicate an already complicated process, and could serve to undermine whatever consensus had been achieved.
To take a very basic example, what would happen if a proposed amendment falls entirely under section 38 and is one which has two sections: one on labour market training and the other on Senate reform? If I understand Bill C-110 properly, the government could proceed with the section on labour market training but not on Senate reform. In all likelihood, assuming the proposed amendments had been negotiated as a package, the government would probably choose to wait until the required regional approval was in place.
If omnibus amendments remain likely, then it will prove to be difficult to secure approval in bits and pieces. To me, this possibility illustrates how the bill undermines the existing amending process and makes constitutional amendment more, rather than less, difficult. It is not unreasonable to suggest that, by convention, regional approval may become the norm for all future amendments, other than those requiring unanimity. In effect, Bill C-110 has the real potential of becoming a second amending formula, and thereby placing the entire amending process in a constitutional straitjacket, which is an unappealing prospect.
Two recurring criticisms of the proposed Meech Lake Accord changes to the amending formula were that it made the creation of new provinces subject to unanimity, and it maintained the clause referring to provincial boundary extensions into the territories. The Yukon and Northwest Territories were strongly opposed to both measures. A direct consequence of territorial participation in the Charlottetown Accord negotiations led to an entirely different approach to the creation of new provinces and deletion of the odious reference to provincial boundary extensions. At the moment, the territorial governments have no role in constitutional amendment. This bill could offset that fact by giving them an opportunity to express their views.
Bill C-110 ignores any territorial involvement in either of the two matters I have just referred to, which to me is a major oversight, and to any other measure of concern to the territories. Since this bill is premised on the need for a regional consensus before the government acts, it may be prudent to seek the views of the sixth region, the North, before proceeding with an amendment. At a very minimum, any amendments with respect to the creation of new provinces and territorial boundaries should include territorial participation and consent. If the fundamentals of the existing amending formula can be altered by statute to reflect regional interest, there is no compelling reason to exclude the territories from the new regional approach.
The final oversight is the absence of any aboriginal involvement in constitutional amendment. To be sure, section 35(1) of the Constitution Act, 1982, commits but does not require the federal government to convene a first ministers conference to discuss amendments affecting aboriginal rights with representatives of the aboriginal peoples. The Charlottetown Accord required aboriginal consent for any amendment affecting aboriginal interests. At a very minimum, it seems reasonable to add a section to Bill C-110 requiring aboriginal consent for amendments affecting their rights. For example, this bill would apply to amendments to section 35 of the Constitution Act, 1982, the aboriginal rights clause. At a time when there are concerns about protecting Quebec's interests and other regional interests, there is an equivalent or a similar need to protect those aboriginal interests that are contained in the Constitution. To me, the extension of the protection principle to aboriginal peoples is perfectly reasonable and should be included in this bill.
A comparison of Bill C-110 with the 1982 amending formula shows some significant differences which also deserve mention. The general amending formula under section 38 requires a consensus of two-thirds of the provinces representing 50 per cent of the population of Canada, according to the latest general census. Two-thirds of the provinces is, at the moment, seven out of ten. When calculating the minimum degree of provincial consent required under Bill C-110, it also totals seven provinces, but because P.E.I. is excluded, it is only seven out of nine, or three-quarters of the provinces, which is a more rigorous test. Thus, the two formulae are by no means identical with respect to the provincial threshold. In addition, Bill C-110 identifies certain provinces that are both provinces and regions - or super provinces - which must give their consent, while the 1982 amending formula does not.
Bill C-110 does not have a population threshold. By giving the four most populous provinces a veto, the bill establishes a minimum population threshold of 92.3 per cent. Using 1995-96 data from Statistics Canada, I have calculated the minimum population threshold. I my brief, I outline the seven provinces which are required, and this adds up to 92.3 per cent.
Indeed, an alternative way of presenting the formula contained in Bill C-110 would be two-thirds of the provinces representing 92 per cent of the population. This approach was briefly considered in late 1978 and early 1979 during the series of constitutional discussions then under way. The formula, referred to as the "Toronto consensus," was proposed as an alternative to the Victoria formula. It contained a threshold of two-thirds of the provinces with 85 per cent of the population threshold, on the assumption that Quebec's population was unlikely to fall below 15 per cent of the total Canadian population.
It is almost worth noting parenthetically that, as an incentive to secure Alberta's support for this proposal, any constitutional amendment affecting natural resources would have been subject to unanimity.
The higher the population limit, the greater the number of de facto vetoes. For example, setting it at 90 per cent accomplishes much of what Bill C-110 does by giving today any one of three provinces the ability to block an amendment regardless of what the other nine think. While this continues the concept of first- and second-class provinces, at least it avoids the pitfalls of regional consensus, because provincial population, not region, is the determining factor.
Focusing on the population requirement does put Bill C-110 in a different light because it clearly demonstrates the extremely high threshold necessary to secure an amendment. One could reasonably question the political legitimacy of such a stringent requirement affecting such a large number of potential amendments. Even under section 41, where every province has a veto, the number of areas to which the veto applies is limited to five subjects. I would at least plead for narrowing the application of the bill to section 42 amendments, modified by the changes I have suggested for both territorial and aboriginal involvement.
Section 49 of the 1982 amending formula requires that a first ministers conference be convened to review the operation of the amending formula 15 years after proclamation - that is, by April 17, 1997, or 15 months from now. In addition to the review of the existing amending formula, presumably first ministers and others who are invited to the conference will examine other policies or practices affecting the operation of the amending process that have been established since 1982, including this bill, the Referendum Act, the referendum requirements in Alberta and British Columbia, the Manitoba standing orders, and any other issue which appears germane.
If the review results in any proposals for change, they would need to be submitted for ratification under section 41, which applies to amendments to the general amending formula. Although section 41 does not have a time limit of three years, as do amendments under section 38, it is not unreasonable to suggest that if a consensus emerges, a schedule for ratification should be part of the agreement. If the conference fails to produce any recommendations for change, then the status quo continues. If it does produce a recommendation for change, that change can only be achieved through unanimity, which presumably would be reflected by the outcome of the conference.
I realize that Quebec may or may not participate in the 1997 conference, but that is something which would need to be addressed at that time. If Quebec is part of the consensus, then there is no problem. If they are not, then the matter remains in limbo until the National Assembly accepts or rejects whatever is being proposed. Here I believe that a three-year time limit could be adhered to; that is to say, the legislative resolutions should include a sunset clause of, say, three years or possibly even earlier.
In summary, in my opinion, this bill complicates an already complicated amending process, and may produce constitutional gridlock. Because of the importance of national unity, the motives behind the bill are beyond reproach. It represents the first attempt in keeping the country together, but the bill, as it stands, can be improved. Moreover, I believe the bill should be seen as a temporary measure, lasting until there has been the full and thorough review of the amending formula required by section 49.
Accordingly, I would recommend that the bill expire five years after its proclamation. That gives Quebec the protection it is seeking until a permanent solution to the amending process is developed. If we cannot accomplish this in five years, we will be dealing with much more significant constitutional issues.
I would also recommend that the Atlantic consensus be amended to read "any two of the four provinces," and that that provision be made for both territorial and aboriginal participation and consent.
I recommend further that the relationship between the referendum act and the bill be clearly spelled out.
Let me end where I began, with the idea of protection. One way of securing protection for Quebec and the other most-populous provinces is through the regional approach which totally negates the principle of equality of the provinces. Because there is a hierarchy of provinces, the bill is divisive. Perhaps of greater importance, legislation by itself, as opposed to Constitutional amendment, does not provide Quebec with 100 per cent certainty because legislation can be rescinded and there is no prohibition to an attempt at amendment. The other way is an expansion of the list of matters subject to unanimity. Either course protects Quebec's interests such that the real question becomes: What is in the best interests of the country? I am convinced that a formula which reflects the province as a unit of decision-making and which does not make a constitutional distinction among them is one which better serves the public interest. Thus I would recommend consideration be given eventually to a small expansion of the subjects included in section 41.
This leaves one final question and that is the future status of this bill. At this stage I believe more damage would be done to national unity by its withdrawal. However, I also believe that without changes along the lines I have suggested, the cause of national unity will also suffer because what was intended as the beginning of the healing process opens old wounds. If the Bill is seen as temporary I feel most people will be able to accept it until the amending formula review has been completed.
Thank you for your attention and for this opportunity.
Senator MacEachen: I want to thank Mr. Meekison for his presentation which I find very reasonable and well thought out and based upon long experience in this industry, if one can call it that, this Canadian growth industry. Like Senator De Bané and Professor Arsenau, he is a survivor of the Canada conferences and he will recall the remarkable work on the Senate we all thought we did at the Calgary conference which, unhappily, became so - how shall I put it - so altered in the subsequent processes. There was not exactly a total compatibility between what the Canada conferences wanted and the Charlottetown Accord. That is by the way.
I want to draw your attention to your paragraph on page 7 in which you state:
While I recognize that under the amending formula any amendment can be initiated in any legislature, our experience to date suggests that most amendments are likely to emerge as a result of an intergovernmental negotiation.
I have no quarrel with that formulation. I have been considering an alternative or a scenario which might develop as follows: The Government of Canada might undertake a series of constitutional negotiations and, after considerable effort, be unable to reach the maximum consensus required under Bill C-110 to permit a minister to introduce a resolution. It occurred to me that, as you point out, a process under the amending formula of 1982 could be launched by a province, by a member of the House of Commons or by the Senate, based upon the 7-50 consensus. That resolution could be dealt with in both Houses of Parliament.
There is nothing in the bill that obligates the government to do anything else but to restrain from introducing any motion unless there is that maximum threshold. I have argued that this is still open and, indeed, depending upon the circumstances, could become operative. I conclude that this is the kind of possibility that you have alluded to in your paragraph.
Mr. Meekison: That is correct, Senator MacEachen. This bill does not prevent an amendment from being enacted under the existing formula. It could be initiated exactly as you have said, at a provincial level or by a member of the Senate or by a member of the House of Commons. That is not precluded by the bill. The question is, once that happens, whether you will find time on the Order Paper to debate it.
Senator MacEachen: I am assuming that any government that attempted in good faith to fulfil its requirement under Bill C-110 and failed it would be because there was a lower consensus. That is what I am talking about.
Regarding the amendments you are proposing, one is simply a time limit. The bill would expire on a certain date five years hence. The idea has been raised in the committee earlier by other witnesses.
Yesterday we had Mr. Claude Ryan before us. He was asked what he thought about this particular proposal. He was concerned that there would be an expiry date and he certainly did not give the committee any encouragement to proceed along those lines.
Supposing that, at the end of a time period, no changes had been made to the Constitution and that no protection had been provided to Quebec in the Constitution. Would it be a good idea to have the bill lapse and nothing in its place and face the further reality of political reaction in Quebec that something which had been given by the Parliament of Canada had been allowed to expire and nothing had been put in its place?
That is the difficulty that occurs to me. I wondered, if there were to be a provision relating to the termination of Bill C-110, that it ought to be linked to some alternative provisions provided in the Constitution. This bill would expire when Quebec had received equivalent protection within the Constitution. Would that be feasible?
Mr. Meekison: Yes. I picked a five-year time limit because of the time between today and 1997. The 1997 conference may not produce an immediate result. Let us give another year or a few months where any progress could be extended, where public input could be received and perhaps conclusions reached by the end of 1997. The requirement is that they have a conference. That does not mean it is a one-time event.
Then let us say that something happens by the end of 1997. We then have some time for it to go through the regular amending process. That is why I picked five years. You could pick a longer time period or you could put in a clause saying "until such time as". The point is that a time limit tends to focus one's attention. It seems to me that five years is a reasonable time.
On the other hand, your suggestion to include a clause to the effect that the bill expires when Quebec has given its consent, or adheres to the 1982 Constitution, is a perfectly reasonable alternative.
Senator MacEachen: From your point of view, that would be a feasible amendment?
Mr. Meekison: Yes.
Senator MacEachen: I should like to hear your thoughts about aboriginal protection and the territories. Do you think the committee could legitimately include provisions along those lines in this bill without having had consultation with the provinces?
Mr. Meekison: I do not know the extent to which the provinces were consulted on the original bill.
Senator MacEachen: I understand that, but this morning we heard a proposal from the minister from the Yukon that we include provisions in this bill which appeared to me to be equivalent to constitutional amendments. It wonder how we could do that in view of the fierce criticism about the fact that this bill itself was brought forward without consultation. Should we perpetuate the process by adding to Bill C-110 provisions on which there ought to be consultations? On the face of it, it appears to me that the amendments you propose would be of some interest to other stakeholders. How do you feel about that?
Mr. Meekison: That is a fair question. Although I hate to use as an example the Charlottetown Accord, that is where one might look for an answer. That was a negotiated agreement with public participation and agreement of the people around the table.
Some provinces may wish to be consulted on that but, given the time constraints, my advice would be to proceed with amendments along those lines. I do not think that the provinces would necessarily object to a provision which requires consultation with the territories with respect to becoming a province.
I am working on the assumption that if a territory wants to become a province, it would make some application thereto and that there would be some kind of hearings or something on the matter. My sense is that such a provision would in no way detract from the authority of the provinces under the existing amending formula and that it is a perfectly reasonable thing to do.
With respect to aboriginal consultation, the only amendment under the amending formula which has been successful since 1982 is the 1984 amendment, which commits the Government of Canada to convening a first ministers conference to discuss certain amendments. I think that one can specify which amendments, such as amendments to section 35 or amendments to sections in the Charter which apply to aboriginal people. I do not believe that there would necessarily be criticism from the provinces in that circumstance because it is focused.
Senator MacEachen: With respect to the territories, would the amendment that you would propose say that the status of the territories would not be altered without their consent?
Mr. Meekison: Yes, and the same would be true with the boundary provision, sections 42(e) and (f).
Senator MacEachen: How precisely would you word the amendment with respect to aboriginals?
Mr. Meekison: I would specify amendments to section 35 of the Constitution Act, 1982 or 91.24 of the Constitution Act, 1867 and to section 25 of the Constitution Act, 1982, which is the section dealing with aboriginal rights in the Charter. I would say that amendments in these areas should not be proceeded with without the consultation and consent of the aboriginal peoples.
Senator MacEachen: You would add "consent" to "consultation"?
Mr. Meekison: I would go that far, yes.
Senator MacEachen: I put the question again about the provinces: Would it not cause us some difficulty with the provinces if we said "consent"?
Mr. Meekison: That is what they agreed to in 1992. Those provisions are found in the very elaborate procedures for amending the Constitution which were agreed to in 1992. There is a limited consent provision for aboriginal peoples with respect to certain amendments to the Constitution in which they have an interest.
Senator MacEachen: In the circumstances, you do not recommend that we defeat this bill in the Senate?
Mr. Meekison: I do not. I think that would be a mistake.
Senator MacEachen: However, you would feel better about it if we attended to these other items?
Mr. Meekison: I would be more comfortable with it because I still bear the scars from the Meech Lake process. There were several criticisms of the Meech Lake Accord. One of them was that these particular interests were not considered. If anything was clear to me during the Charlottetown round, it is that both territorial and aboriginal interests were both present and listened to, and that is reflected throughout the document. That is a mistake of the past which we need not repeat. The fundamental emphasis in this bill is protection, and there are other interests that want to be protected. Under the principle of protection, you can add to the bill to ensure that these other interests are protected as well. If a number of people do not like an amendment, we will not proceed with it. In other words, you must get some kind of consensus. I do not think that is unreasonable. I think that is how the system will ultimately evolve in the future.
Senator Beaudoin: Thank you for your memorandum. It is very well drafted.
You suggest a sunset clause. I am impressed by that suggestion because I believe that Bill C-110 can only be transitory. I am of the opinion that we should start immediately to work on the amending formula that should be enshrined in the Constitution next year, if we are lucky enough to find one that will be accepted, because we need unanimity. Since the bill is temporary, a sunset clause would be logical.
You say at page 2:
How can Quebec acquire a veto without other provinces or parts of Canada receiving similar treatment? The Victoria formula provides one answer, unanimity provides another.
That is very well expressed. However, this is our dilemma. We tried with the Meech Lake Accord to extend the unanimity clause to ten subjects, if I am not mistaken, and, unfortunately, we failed.
The Victoria formula, for some reason, was rejected. That is the other pole of attraction: regional vetoes or unanimity. Could we have a federal Constitution where there are so many subjects of unanimity? This is what worries me. We may see that in confederations, but even in Europe, in the common market, it is not always unanimous. It is acceptable in a confederation, but for a federation it is another thing. Can we not circumvent that difficulty by putting a constitutional guarantee in the Constitution? We want to do that for the aboriginals, and I think that is the right direction to take. We may even do it for Quebec so that no power will be withdrawn in the field where Quebec is specific without the consent of Quebec. That would be one way to deal with the problem. The 7-50 formula as such is not a bad one, but if we are able to find a formula to protect Quebec and the aboriginals adequately, we may succeed in having only a federal veto in the Constitution. I would like to have your views on that. After that, I want to speak about the territories and the aboriginal peoples.
Mr. Meekison: The 1982 formula provides protection with respect to legislative jurisdiction, but a province can opt out of an amendment to a division of powers that it does not like. Protection is provided. No powers can be taken away from any province.
Senator Beaudoin: The legislative powers of the provinces remain intact. That is good.
Mr. Meekison: To a great extent, section 42 is directed at national institutions, for example, the Senate and the courts. One can ask whether any one province has a greater interest in these than another. A good part of the list that is found in section 42 is also found in Fulton-Favreau. In the Fulton-Favreau formula it was only subjected to two-thirds per cent of the provinces representing 50 per cent of the population, not subject to unanimity.
Senator Beaudoin: When you ask if a province has some interests that others do not have, I think that is so in the case of Canada. Quebec has a language, a culture and a civil code that is different. We must sell this to Quebec. Do not forget that in Quebec the debate is within inter-nation and federation. We must establish clearly to Quebecers that they may remain in the Canadian federation with an adequate protection for language, culture and civil law. Civil law is the easiest probably, but we must reassure them. The Constitution is already doing that to a great extent.
We also state that three judges shall come from Quebec. It is not stated that clearly in section 41, but it should be. I think we should keep the Supreme Court as it is structured now. It is doing a good job. We have had three Quebec jurists on the bench since 1949. It should be stated more clearly in section 41, though at least it is under the Supreme Court Act. That is the way it should be.
Quebec does not like very much an equal Senate, for reasons that are easy to understand. At the time of Confederation, Quebec had one-third of the population and since 1915, it has held one-quarter. It will diminish with the years. That is another problem. Probably the creation of new provinces is of great interest to Quebecers. Those areas are sensitive, but if we may put in place some kind of protection, we may explain to our fellow citizens, "You may remain in this federation because it is a good one. Canada is a great democracy and a nice country", et cetera, but we must be quite sure that Quebec will be well protected. If not, they will prefer the nation state. This is where the debate lies. This is where I see a problem for the veto. If we give the veto to everyone, it will never work. If we give the veto to four or five regions, it may work - that is, on the condition that it is accepted by everybody. If you have a selective veto or some form of protection in certain areas, then Quebec may accept that. However, I do not see how it can be less than that.
Mr. Meekison: Senator Beaudoin, you raise a number of points. Let me try to address some of them. We need to focus on a clause other than the amending formula. I see this bill as a temporary measure until something else, whatever that something else may be, comes along. We will need in the Constitution some clause similar to the distinct society clause. It may not be those words because of the baggage, but something like that is needed. I go back to the original Constitution, which I feel has elements of protection. I look at sections 133 and 94. These were part of a negotiation where people said, "Yes those are areas in which we need protection." Those interests flow through to today. The challenge ahead is to find some other way of protection - that is, a twenty-first century equivalent of that kind of guarantee and protection. Once that is in the Constitution, the amending process becomes secondary, although once it is in there you want to make sure it is protected. I am assuming that that kind of clause, once contained in the Constitution, would fall under the general amending formula in that you cannot touch it without the consent of the province of Quebec.
I realize that by recommending an expansion of the list of items subject to unanimity people will say, "You are putting the Constitution in a straightjacket." That was the principal criticism of Fulton-Favreau, namely that most things were subject to a veto. On the other hand, if everyone has a veto, it influences the dynamic around the table. In that sense, all are equal, and anyone can play that card if they so choose.
In discussing the 1982 formula at the time with my colleagues from Quebec, they reminded me that when they used their veto, say, over the Victoria formula, there was considerable outcry in the rest of the country. People did not like it. They had spent all this time negotiating an agreement only to have their hopes dashed. The exercise of a veto by anyone at any time, except for the House of Commons because it represents all of Canada and it has that mantle of responsibility, is risky. If you are to put in a clause to protect an interest, we must run the risk of that interest saying, "We do not like that." Every time that possibility arises in negotiation, it forces the other parties to try to come up with some acceptable compromise and to take whatever that concern is and address it.
I am not bothered by expansion of the list of subjects subject to a veto or requiring unanimity, which is a better way of putting it, because I think it forces the people around the table to find honourable compromises. That has been the basis of our constitutional negotiations up to today.
One of the amendments which shows our ingenuity is the amendment with respect to pensions. The Parliament of Canada can do those things. However, a province which wants to go it alone can also do that. We have the Canada and Quebec pension plans as a result. That shows tremendous insight into how the federal system should operate. It illustrates flexibility. It recognizes that an individual province or provinces may decide to do it their own way. I hope that in the months ahead we can apply that type of thinking to develop, if necessary, some kind of new Quebec clause within the Constitution. I think that is perfectly reasonable.
Senator Beaudoin: For the aboriginals, it is easy. They were there before the French, the English and all the others who came after. They have special rights, et cetera. People understand that. Section 35 protects aboriginal rights. There is no problem with that. We should continue to recognize those rights because they are fundamental rights. In my opinion, bilingualism is also a fundamental right, and there are others which I will not mention.
The big problem that we have to deal with is that when we come to the amending formula or equality of the provinces, it is difficult to sell the idea that a territory may become a province and be equal to Ontario or Quebec. Perhaps it is different in the other parts of Canada. However, in Quebec, it is not.
In terms of the division of powers, the situation is all right. We should have more concurrent powers with the preponderance federal in some cases and provincial in others. For example, culture may be one with respect to which the preponderance may be provincial. This would please Quebec while not removing anything at all from the other provinces. I think that is something with which we can easily play.
The amending formula is a question of plain survival. People want to be sure that an amendment cannot be adopted without the consent of the province concerned with the amendment. I do not object too much to the question of unanimity because I accepted the provisions of the Meech Lake Accord. It was not too bad. To save this country, it is worth it. It will not be easy to sell because we have failed once. We failed with the regional veto and the unanimity formula. What will we do next year? I consider that the debate for next year has already started, and this bill is only the beginning of the battle that will take place.
I wonder if we do not lack some creative imagination. It seems to be either the four or five vetoes or unanimity. About that, I am not too sure.
Mr. Meekison: Those are the questions which will have to be addressed. No matter which side one comes down on there will be problems. In terms of the Charlottetown proposals, particularly with respect to the admission of new provinces, there were some compromises as to what they could or could not do. I recommend that the committee examine that in terms of trying to find some way through this political minefield. I realize that you cannot drop, for example, the section in the amending formula which deals with boundary extensions. That would be an amendment to the amending formula, which is another matter. There are ways to get around that. I think territorial participation and consent is one way.
This is a regional approach. All we are saying is that there is another region of Canada which is one-sixth of the land mass and it should be taken into consideration. I do not think that is unreasonable in this context.
Senator Beaudoin: What do we do with the territories and the aboriginals and the amending formula?
Mr. Meekison: This is a temporary measure. I think you can factor that into this bill. Then, during the review in 1997, these issues can be addressed afresh with the input of the people affected. I am assuming the territories will have some thoughts about whatever a new amending formula should look like.
Senator Beaudoin: There is no problem in terms of participation. The problem has to do with the consent because, in a way, the consent is a veto power.
Mr. Meekison: I would certainly think the territories would want some consent over the expansion of provincial boundaries into their territory. Certainly, Nunavut would; I can assure you of that .
Senator Beaudoin: In my opinion, that is quite reasonable. No aboriginal right should be modified without the consent of the aboriginal peoples. Obviously, everyone will agree with that. They were here yesterday and they told us that we should have a third level of government. That would be quite a change. We already have two levels of government, and we have had some troubles in our history. To say that from now on we will have three levels of legislative powers is quite a change. It is something which very deeply interests Ottawa and the provinces. Would you go so far as to accept such a proposal?
Mr. Meekison: I think you are getting into the question of the inherent right. Clearly, under section 35 of the Constitution an argument can be made that the inherent right of self-government is there and that leads to a third order of government. However, that is a different question from what Bill C-110 proposes. That would open up an entirely different issue. The issue here is a change in the amending process that we now have. My recommendation is to have both aboriginal and territorial participation in this revised process.
Senator Beaudoin: You mean the right to participate, do you?
Mr. Meekison: I do not think there is any question about the right to participate. I would go further and say that, in certain instances, consent should be obtained. I do not think it would be reasonable today to have amendments affecting the territories or aboriginal peoples without their consent.
Senator De Bané: Professor Meekison, you have played a central role in this whole question. I should like to put a question to you on a slightly different topic than Bill C-110. When I look to what happened in Quebec on October 30, as you know, the sole argument of the separatists, of those who advocate secession, is that we French-speaking Canadians are a minority in this country. In the long term, because we are a minority, the decisions will be made by the majority. In the long term, it is more beneficial for us to separate so that we will ourselves constitute a majority and we will make our own decisions.
When you say, "Well, wait a minute. For the last 25 years, it was mostly Quebecers who were prime ministers, and they had these different portfolios. The Governor General, the Chief Justice and the Chief of the Defence Staff were also Quebecers", the reply is, "That is contingent. It can change tomorrow." As you know, Latin people are obsessed with institutions, and they like to write constitutions hoping that, tomorrow, reality will conform to a piece of paper. This is the Latin mind. In Venezuela, they have had not less than 200 written constitutions. France has one every 20 years on average, 10 in the last two centuries. In Belgium, the Flemish and the French have decided to take each federal department and have two sections, one Flemish and one French.
In order to counter the argument of the separatist that we must separate in order not to be subservient to the majority, what if we adopted a policy that every decision of the executive of the Canadian government needs the explicit concurrence of the Quebec ministers in that cabinet as a group? From my experience as a member of the cabinet and in practice this is the reality. I do not remember there ever being a case where decisions were made by cabinet without their concurrence. However, this is a well-kept secret in Quebec. No one knows about it. They do participate and give their concurrence to every single decision. I have talked to other people who have more experience with the Canadian government than I do, and they tell me that it is true that no decision is made by the Canadian government unless that group of Quebec ministers sitting around the table with their colleagues give their concurrence.
Suppose tomorrow, instead of this bill, we said that no decision of the Canadian government could be made without their concurrence. That is more powerful than having an independent country, which would be a third of the other country and would have its decisions dictated by that other country. What do you think of that? Am I saying something that is outrageous, or is this something with which you can live?
Mr. Meekison: I do not think it is outrageous, but I think it would be difficult to explain, given the workings of cabinet government. You have been in the cabinet and I have not, but I understand they operate under collective agreement and secrecy. One would have to take a policy statement like that on faith that that is in fact how decisions are made.
You would then move into the area of double majorities, in effect. I think double majorities are probably a good idea in legislatures on certain policy matters, and I have no difficulty with that situation. If it were somehow legislated or written in a way that it was a requirement by law or something other than a policy statement, I am not sure the cabinet could function effectively. I will give you an example.
In the federal election in 1979, as I recall, Mr. Clark only had one member of Parliament from Quebec. There were senators that he could bring into the cabinet. The dilemma is that it is fine if, in a normal election, there are a number of representatives around the cabinet table from Quebec who have been elected. However, our electoral system does not always necessarily produce results along those lines.
Senator De Bané: Let us take that example, Professor Meekison. During the Clark government, there were four Quebecers around the table, and I would bet you anything that every decision made by that government had the concurrence of those four ministers from Quebec.
Mr. Meekison: I cannot answer that, but I am sure they were fully involved in the discussions, and prudence would suggest that that is a critical element of keeping harmony within Canada. I teach politics, and I understand the political process, but I do think you would have to then publicize cabinet decision making. I am not sure that that would fly.
Senator De Bané: The only argument of the separatists is, "We are a minority in Ottawa, and it is the majority that decides. Therefore, let us separate so that we will become ourselves a majority." Frankly, I would wager that no decision affecting Quebec has ever been made by cabinet without their concurrence. This is a well-kept secret that most Quebecers do not know about.
Mr. Meekison: The only way that I can think of doing that would be to publicize that fact and try to stress it, or have public cabinet meetings.
Senator De Bané: However, Latin people like to institutionalize things. If you said no decision concerning Quebec will be made by the executive without the concurrence of the Quebec ministers, assuming that my assumption is right that this is reality, then you have taken from the separatists their main argument. The French, as opposed to the English, like those kinds of written statements. Why should we separate if we participate in every single decision and our concurrence is needed? I am happy you do not find my idea outrageous in view of the fact it reflects reality anyway.
Mr. Meekison: I am teaching a course right now, and the topic of the course is the topic we are discussing this afternoon. I told my students, "I want you to come up with some kind of solution, and I do not think any idea is outrageous. Every idea has to be explored." We are looking for answers, and I think we have to take every idea and look at it and say, "This may or may not work."
The thing I like about the Canadian Constitution is that it is the product of generations, it is flexible, it gives protection, and it works. I do not think our Constitution would work in Australia, but it works for us. We can come up with ideas, and I think we should look at every idea.
Senator De Bané: Two days ago I attended a lecture by Professor Charles Taylor of McGill, and he said, "I have been on the front trenches in this battle in Quebec against the separatists for the last 25 years." His only concrete suggestion was to have English Canada say to Quebec, "We recognize you as a nation." He said, "Just say that. Do not put it in the Constitution, but just say it. They want to hear that they are recognized as a group." He said that will give us a lot of ammunition. We all know that no decision concerning the Maritimes or Ontario will be taken without the concurrence of the ministers of those areas. However, nobody seems to know that in Quebec no decision affecting their province will be made without the concurrence of their representatives around the table. If you could publicize that fact and institutionalize it, maybe it would be a lot better than this bill. The added advantage is that instead of giving them protection at the provincial level, we will bring their protection to the central level.
Mr. Meekison: I would certainly recommend you publicize it. I am not sure how you institutionalize it given the conventions surrounding a cabinet government. To me, anything is worth exploring. I am not sure we have the time to do so right now.
The Chairman: When I first looked at Bill C-110, one of the thoughts that went through my mind was whether it would compromise the federal government in meeting its duty and responsibility with respect to ascertaining what constitutes the public interest on an issue. That went through my mind because of an assumption. I want to ask you whether this is a valid assumption in political science literature.
In federal states, the national interest is not necessarily the sum total of the interests of the parts. What does the literature suggest?
Mr. Meekison: The literature is divided on that notion. I would argue that the national interest reflects the interest of the central government and the interests of the parts. The difficulty is how you assess the interests of the parts. For example, in Australia it is done through referenda; here it is done through provincial legislatures. How you develop that interest differs from federation to federation. The national interest, as certainly reflected in this bill and in the amending formula, reflects both Parliament and some combination of provinces. That is the ultimate will in respect to constitutional change.
When we look at the notion of amendment, this bill speaks to ratification and that certain things will happen on ratification. The other side of an amendment is the actual drafting of the amendment. Someone has to do it. Initiative must be taken. The British Columbia legislature did so in 1983 with respect to property rights. That is one example of a province taking the initiative and trying to sell the rest of the country on a particular amendment. However, in the drafting of an amendment, we have also tried to tap into the national interest.
If you are looking to develop an amendment today, what elements would go into it? For example, would you want to have aboriginal interests reflected? Would you want to have Quebec interests reflected? Everyone has their own agenda item. They might want to add to an amendment. At some point, you have to prepare this amendment.
I am assuming that this bill comes into effect once an amendment has been drafted by someone. I assume that that someone must, of necessity, include the federal government in some way. That does not preclude all the provinces getting together to draft an amendment. They could say, "We will put this amendment through this test, and then the Parliament or the Government of Canada can deal with it." However, amendments that are likely to achieve success require federal participation and federal leadership at the outset.
The Chairman: On that note, honourable colleagues, let me thank Professor Meekison for his important and helpful testimony.
The committee adjourned.