CONSENSUS REPORT ON THE CONSTITUTION
Charlottetown
August 28, 1992
Final Text
TABLE OF CONTENTS
PREFACE
I: UNITY AND DIVERSITY
A. PEOPLE AND COMMUNITIES
- Canada Clause
- Aboriginal Peoples and the Canadian Charter of Rights and Freedoms
- Linguistic Communities in New Brunswick
B. CANADA'S SOCIAL AND ECONOMIC UNION
- The Social and Economic Union
- Economic Disparities, Equalization and Regional Development
- The Common Market (*)
II: INSTITUTIONS
A. THE SENATE
- An Elected Senate
- An Equal Senate
- Aboriginal Peoples' Representation in the Senate (*)
- Relationship to the House of Commons
- Categories of Legislation
- Approval of Legislation
- Revenue and Expenditure Bills
- Double Majority
- Ratification of Appointments (*)
- Eligibility for Cabinet
B. THE SUPREME COURT
- Entrenchment in the Constitution
- Composition
- Nominations and Appointments
- Aboriginal Peoples' Role (*)
C. HOUSE OF COMMONS
- Composition of the House of Commons
- Aboriginal Peoples' Representation (*)
D. FIRST MINISTERS' CONFERENCES
- Entrenchment (*)
E. THE BANK OF CANADA
- Bank of Canada
III: ROLES AND RESPONSIBILITIES
- Federal Spending Power
- Protection of Intergovernmental Agreements (*)
- Immigration
- Labour Market Development and Training (*)
- Culture
- Forestry (*)
- Mining (*)
- Tourism (*)
- Housing (*)
- Recreation (*)
- Municipal and Urban Affairs (*)
- Regional Development
- Telecommunications
- Federal Power of Disallowance and Reservation
- Federal Declaratory Power
- Aboriginal Peoples' Protection Mechanism
IV: FIRST PEOPLES
A. THE INHERENT RIGHT OF SELF-GOVERNMENT
- The Inherent Right of Self-Government
- Delayed Justiciability (*)
- Charter Issues
- Land
B. METHOD OF EXERCISE OF THE RIGHT
- Commitment to Negotiate
- The Process of Negotiation (*)
- Legal Transition and Consistency of Laws
- Treaties
C. ISSUES RELATED TO THE EXERCISE OF THE RIGHT
- Equity of Access to Section 35 Rights
- Financing (*)
- Affirmative Action Programs
- Gender Equality (*)
- Future Aboriginal Constitutional Process
- Section 91(24) (*)
- Métis in Alberta/Section 91(24)
- Métis Nation Accord (*)
V: THE AMENDING FORMULA
- Changes to National Institutions
- Establishment of New Provinces
- Compensation for Amendments that Transfer Jurisdiction
- Aboriginal Consent
VI: OTHER ISSUES
NOTE: Asterisks in the table of contents indicate areas where
the consensus on some issues under the heading is to proceed with a political
accord.
PREFACE
This document is a product of a series of meetings on constitutional reform
involving the federal, provincial and territorial governments and
representatives of Aboriginal peoples.
These meetings were part of the Canada Round of constitutional renewal. On
September 24, 1991, the Government of Canada tabled in the federal Parliament a
set of proposals for the renewal of the Canadian federation entitled Shaping
Canada's Future Together. These proposals were referred to a Special Joint
Committee of the House of Commons and the Senate which travelled across Canada
seeking views on the proposals. The Committee received 3,000 submissions and
listened to testimony from 700 individuals.
During the same period, all provinces and territories created forums for
public consultation on constitutional matters. These forums gathered reaction
and advice with a view to producing recommendations to their governments. In
addition, Aboriginal peoples were consulted by national and regional Aboriginal
organizations.
An innovative forum for consultation with experts, advocacy groups and
citizens was the series of six televised national conferences that took place
between January and March of 1992.
Shortly before the release of the report of the Special Joint Committee on a
Renewed Canada, the Prime Minister invited representatives of the provinces and
territories and Aboriginal leaders to meet with the federal Minister of
Constitutional Affairs to discuss the report.
At this initial meeting, held March 12, 1992 in Ottawa, participants agreed
to proceed with a series of meetings with the objective of reaching consensus on
a set of constitutional amendments. It was agreed that participants would make
best efforts to reach consensus before the end of May, 1992 and that there would
be no unilateral actions by any government while this process was under way. It
was subsequently agreed to extend this series of meetings into June, and then
into July.
To support their work, the heads of delegation agreed to establish a
Coordinating Committee, composed of senior government officials and
representatives of the four Aboriginal organizations. This committee, in turn,
created four working groups to develop options and recommendations for
consideration by the heads of delegation.
Recommendations made in the report of the Special Joint Committee on a
Renewed Canada served as the basis of discussion, as did the recommendations of
the various provincial and territorial consultations and the consultations with
Aboriginal peoples. Alternatives and modifications to the proposals in these
reports have been the principal subject of discussion at the multilateral
meetings.
Including the initial session in Ottawa, there were twenty-seven days of
meetings among the heads of delegation, as well as meetings of the Coordinating
Committee and the four working groups. The schedule of the meetings during this
first phase of meetings was:
March 12
|
Ottawa
|
April 8 and 9
|
Halifax
|
April 14
|
Ottawa
|
April 29 and 30
|
Edmonton
|
May 6 and 7
|
Saint John
|
May 11, 12 and 13
|
Vancouver
|
May 20, 21 and 22
|
Montreal
|
May 26, 27, 28, 29 and 30
|
Toronto
|
June 9, 10 and 11
|
Ottawa
|
June 28 and 29
|
Ottawa
|
July 3
|
Toronto
|
July 6 and 7
|
Ottawa
|
Following this series of meetings, the Prime Minister of Canada chaired a
number of meetings of First Ministers, in which the Government of Quebec was a
full participant. These include:
August 4
|
Harrington Lake
|
August 10
|
Harrington Lake
|
August 18, 19, 20, 21 and 22
|
Ottawa
|
August 27 and 28
|
Charlottetown
|
Organizational support for the full multilateral meetings has been provided
by the Canadian Intergovernmental Conferences Secretariat.
In the course of the multilateral discussions, draft constitutional texts
have been developed wherever possible in order to reduce uncertainty or
ambiguity. In particular, a rolling draft of legal text was the basis of the
discussion of issues affecting Aboriginal peoples. These drafts would provide
the foundation of the formal legal resolutions to be submitted to Parliament and
the legislatures.
In areas where the consensus was not unanimous, some participants chose to
have their dissents recorded. Where requested, these dissents have been recorded
in the chronological records of the meetings but are not recorded in this
summary document.
Asterisks in the text that follows indicate the areas where the
consensus is to proceed with a political accord.
I: UNITY AND DIVERSITY
A. PEOPLE AND COMMUNITIES
1. Canada Clause
A new clause should be included as Section 2 of the Constitution Act, 1867
that would express fundamental Canadian values. The Canada Clause would guide
the courts in their future interpretation of the entire Constitution, including
the Canadian Charter of Rights and Freedoms.
The Constitution Act, 1867 is amended by adding thereto, immediately
after Section 1 thereof, the following section:
"2. (1) The Constitution of Canada, including the Canadian Charter of
Rights and Freedoms, shall be interpreted in a manner consistent with the
following fundamental characteristics:
(a) Canada is a democracy committed to a parliamentary and federal system of
government and to the rule of law;
(b) the Aboriginal peoples of Canada, being the first peoples to govern this
land, have the right to promote their languages, cultures and traditions and to
ensure the integrity of their societies, and their governments constitute one of
three orders of government in Canada;
(c) Quebec constitutes within Canada a distinct society, which includes a
French-speaking majority, a unique culture and a civil law tradition;
(d) Canadians and their governments are committed to the vitality and
development of official language minority communities throughout Canada;
(e) Canadians are committed to racial and ethnic equality in a society that
includes citizens from many lands who have contributed, and continue to
contribute, to the building of a strong Canada that reflects its cultural and
racial diversity;
(f) Canadians are committed to a respect for individual and collective human
rights and freedoms of all people;
(g) Canadians are committed to the equality of female and male persons; and
(h) Canadians confirm the principle of the equality of the provinces at the
same time as recognizing their diverse characteristics.
(2) The role of the legislature and Government of Quebec to preserve and
promote the distinct society of Quebec is affirmed.
(3) Nothing in this section derogates from the powers, rights or privileges
of the Parliament or the Government of Canada, or of the legislatures or
governments of the provinces, or of the legislative bodies or governments of the
Aboriginal peoples of Canada, including any powers, rights or privileges
relating to language and, for greater certainty, nothing in this section
derogates from the aboriginal and treaty rights of the Aboriginal peoples of
Canada."
2. Aboriginal Peoples and the Canadian Charter of Rights and Freedoms
The Charter provision dealing with Aboriginal peoples (Section 25, the
non-derogation clause) should be strengthened to ensure that nothing in the
Charter abrogates or derogates from Aboriginal, treaty or other rights of
Aboriginal peoples, and in particular any rights or freedoms relating to the
exercise or protection of their languages, cultures or traditions.
3. Linguistic Communities in New Brunswick
A separate constitutional amendment requiring only the consent of Parliament
and the legislature of New Brunswick should be added to the Canadian Charter of
Rights and Freedoms. The amendment would entrench the equality of status of the
English and French linguistic communities in New Brunswick, including the right
to distinct educational institutions and such distinct cultural institutions as
are necessary for the preservation and promotion of these communities. The
amendment would also affirm the role of the legislature and government of New
Brunswick to preserve and promote this equality of status.
B. CANADA'S SOCIAL AND ECONOMIC UNION
4. The Social and Economic Union
A new provision should be added to the Constitution describing the commitment
of the governments, Parliament and the legislatures within the federation to the
principle of the preservation and development of Canada's social and economic
union. The new provision, entitled The Social and Economic Union, should be
drafted to set out a series of policy objectives underlying the social and the
economic union, respectively. The provision should not be justiciable.
The policy objectives set out in the provision on the social union should
include, but not be limited to:
- providing throughout Canada a health care system that is comprehensive,
universal, portable, publicly administered and accessible;
- providing adequate social services and benefits to ensure that all
individuals resident in Canada have reasonable access to housing, food and
other basic necessities;
- providing high quality primary and secondary education to all individuals
resident in Canada and ensuring reasonable access to post-secondary
education;
- protecting the rights of workers to organize and bargain collectively; and
- protecting, preserving and sustaining the integrity of the environment for
present and future generations.
The policy objectives set out in the provision on the economic union should
include, but not be limited to:
- working together to strengthen the Canadian economic union;
- the free movement of persons, goods, services and capital;
- the goal of full employment;
- ensuring that all Canadians have a reasonable standard of living; and
- ensuring sustainable and equitable development.
A mechanism for monitoring the Social and Economic Union should be determined
by a First Ministers' Conference.
A clause should be added to the Constitution stating that the Social and
Economic Union does not abrogate or derogate from the Canadian Charter of Rights
and Freedoms.
5. Economic Disparities, Equalization and Regional Development
Section 36 of the Constitution Act, 1982 currently commits Parliament
and the Government of Canada and the governments and legislatures of the
provinces to promote equal opportunities and economic development throughout the
country and to provide reasonably comparable levels of public services to all
Canadians. Subsection 36(2) currently commits the federal government to the
principle of equalization payments. This section should be amended to read as
follows:
"Parliament and the Government of Canada are committed to making
equalization payments so that provincial governments have sufficient revenues to
provide reasonably comparable levels of public services at reasonably comparable
levels of taxation."
Subsection 36(1) should be expanded to include the territories.
Subsection 36(1) should be amended to add a commitment to ensure the
provision of reasonably comparable economic infrastructures of a national nature
in each province and territory.
The Constitution should commit the federal government to meaningful
consultation with the provinces before introducing legislation relating to
equalization payments.
A new Subsection 36(3) should be added to entrench the commitment of
governments to the promotion of regional economic development to reduce economic
disparities.
Regional development is also discussed in item 36 of this document.
6. The Common Market
Section 121 of the Constitution Act, 1867 would remain unchanged.
Detailed principles and commitments related to the Canadian Common Market are
included in the political accord of August 28, 1992. First Ministers will decide
on the best approach to implement these principles and commitments at a future
First Ministers' Conference on the economy. First Ministers would have the
authority to create an independent dispute resolution agency and decide on its
role, mandate and composition. (*)
II: INSTITUTIONS
A. THE SENATE
7. An Elected Senate
The Constitution should be amended to provide that Senators are elected,
either by the population of the provinces and territories of Canada or by the
members of their provincial or territorial legislative assemblies.
Federal legislation should govern Senate elections, subject to the
constitutional provision above and constitutional provisions requiring that
elections take place at the same time as elections to the House of Commons and
provisions respecting eligibility and mandate of Senators. Federal legislation
would be sufficiently flexible to allow provinces and territories to provide for
gender equality in the composition of the Senate.
Matters should be expedited in order that Senate elections be held as soon as
possible, and, if feasible, at the same time as the next federal general
election for the House of Commons.
8. An Equal Senate
The Senate should initially total 62 Senators and should be composed of six
Senators from each province and one Senator from each territory.
9. Aboriginal Peoples' Representation in the Senate
Aboriginal representation in the Senate should be guaranteed in the
Constitution. Aboriginal Senate seats should be additional to provincial and
territorial seats, rather than drawn from any province or territory's allocation
of Senate seats.
Aboriginal Senators should have the same role and powers as other Senators,
plus a possible double majority power in relation to certain matters materially
affecting Aboriginal people. These issues and other details relating to
Aboriginal representation in the Senate (numbers, distribution, method of
selection) will be discussed further by governments and the representatives of
the Aboriginal peoples in the early autumn of 1992. (*)
10. Relationship to the House of Commons
The Senate should not be a confidence chamber. In other words, the defeat of
government- sponsored legislation by the Senate would not require the
government's resignation.
11. Categories of Legislation
There should be four categories of legislation:
1) Revenue and expenditure bills ("supply bills");
2) Legislation materially affecting French language or French culture;
3) Bills involving fundamental tax policy changes directly related to natural
resources;
4) Ordinary legislation (any bill not falling into one of the first three
categories).
Initial classification of bills should be by the originator of the bill. With
the exception of legislation affecting French language or French culture (see
item 14), appeals should be determined by the Speaker of the House of Commons,
following consultation with the Speaker of the Senate.
12. Approval of Legislation
The Constitution should oblige the Senate to dispose of any bills approved by
the House of Commons, within thirty sitting days of the House of Commons, with
the exception of revenue and expenditure bills.
Revenue and expenditure bills would be subject to a 30 calendar-day
suspensive veto. If a bill is defeated or amended by the Senate within this
period, it could be repassed by a majority vote in the House of Commons on a
resolution.
Bills that materially affect French language or French culture would require
approval by a majority of Senators voting and by a majority of the Francophone
Senators voting. The House of Commons would not be able to override the defeat
of a bill in this category by the Senate.
Bills that involve fundamental tax policy changes directly related to natural
resources would be defeated if a majority of Senators voting cast their votes
against the bill. The House of Commons would not be able to override the
Senate's veto. The precise definition of this category of legislation remains to
be determined.
Defeat or amendment of ordinary legislation by the Senate would trigger a
joint sitting process with the House of Commons. A simple majority vote at the
joint sitting would determine the outcome of the bill.
The Senate should have the powers set out in this Consensus Report. There
would be no change to the Senate's current role in approving constitutional
amendments. Subject to the Consensus Report, Senate powers and procedures should
be parallel to those in the House of Commons.
The Senate should continue to have the capacity to initiate bills, except for
money bills.
If any bill initiated and passed by the Senate is amended or rejected by the
House of Commons, a joint sitting process should be triggered automatically.
The House of Commons should be obliged to dispose of legislation approved by
the Senate within a reasonable time limit.
13. Revenue and Expenditure Bills
In order to preserve Canada's parliamentary traditions, the Senate should not
be able to block the routine flow of legislation relating to taxation, borrowing
and appropriation.
Revenue and expenditure bills ("supply bills") should be defined as
only those matters involving borrowing, the raising of revenue and appropriation
as well as matters subordinate to these issues. This definition should exclude
fundamental policy changes to the tax system (such as the Goods and Services Tax
and the National Energy Program).
14. Double Majority
The originator of a bill should be responsible for designating whether it
materially affects French language or French culture. Each designation should be
subject to appeal to the Speaker of the Senate under rules to be established by
the Senate. These rules should be designed to provide adequate protection to
Francophones.
On entering the Senate, Senators should be required to declare whether they
are Francophones for the purpose of the double majority voting rule. Any process
for challenging these declarations should be left to the rules of the Senate.
15. Ratification of Appointments
The Constitution should specify that the Senate ratify the appointment of the
Governor of the Bank of Canada.
The Constitution should also be amended to provide the Senate with a new
power to ratify other key appointments made by the federal government.
The Senate should be obliged to deal with any proposed appointments within
thirty sitting-days of the House of Commons.
The appointments that would be subject to Senate ratification, including the
heads of the national cultural institutions and the heads of federal regulatory
boards and agencies, should be set out in specific federal legislation rather
than the Constitution. The federal government's commitment to table such
legislation should be recorded in a political accord. (*)
An appointment submitted for ratification would be rejected if a majority of
Senators voting cast their votes against it.
16. Eligibility for Cabinet
Senators should not be eligible for Cabinet posts.
B. THE SUPREME COURT
17. Entrenchment in the Constitution
The Supreme Court should be entrenched in the Constitution as the general
court of appeal for Canada.
18. Composition
The Constitution should entrench the current provision of the Supreme
Court Act, which specifies that the Supreme Court is to be composed of nine
members, of whom three must have been admitted to the bar of Quebec (civil law
bar).
19. Nominations and Appointments
The Constitution should require the federal government to name judges from
lists submitted by the governments of the provinces and territories. A provision
should be made in the Constitution for the appointment of interim judges if a
list is not submitted on a timely basis or no candidate is acceptable.
20. Aboriginal Peoples' Role
The structure of the Supreme Court should not be modified in this round of
constitutional discussions. The role of Aboriginal peoples in relation to the
Supreme Court should be recorded in a political accord and should be on the
agenda of a future First Ministers' Conference on Aboriginal issues. (*)
Provincial and territorial governments should develop a reasonable process
for consulting representatives of the Aboriginal peoples of Canada in the
preparation of lists of candidates to fill vacancies on the Supreme Court. (*)
Aboriginal groups should retain the right to make representations to the
federal government respecting candidates to fill vacancies on the Supreme Court.
(*)
The federal government should examine, in consultation with Aboriginal
groups, the proposal that an Aboriginal Council of Elders be entitled to make
submissions to the Supreme Court when the court considers Aboriginal issues. (*)
C. HOUSE OF COMMONS
21. Composition of the House of Commons
The composition of the House of Commons should be adjusted to better reflect
the principle of representation by population. The adjustment should include an
initial increase in the size of the House of Commons to 337 seats, to be made at
the time Senate reform comes into effect. Ontario and Quebec would each be
assigned eighteen additional seats, British Columbia four additional seats, and
Alberta two additional seats, with boundaries to be developed using the 1991
census.
An additional special Canada-wide redistribution of seats should be conducted
following the 1996 census, aimed at ensuring that, in the first subsequent
general election, no province will have fewer than 95 per cent of the House of
Commons seats it would receive under strict representation-by-population.
Consequently, British Columbia and Ontario would each be assigned three
additional seats and Alberta two additional seats. As a result of this special
adjustment, no province or territory will lose seats, nor will a province or
territory which has achieved full representation-by-population have a smaller
share of House of Commons seats than its share of the total population in the
1996 census.
The redistribution based on the 1996 census and all future redistributions
should be governed by the following constitutional provisions:
(a) A guarantee that Quebec would be assigned no fewer than 25 per cent of
the seats in the House of Commons;
(b) The current Section 41(b) of the Constitution Act, 1982, the
"fixed floor", would be retained;
(c) Section 51A of the Constitution Act, 1867, the "rising
floor", would be repealed;
(d) A new provision that would ensure that no province could have fewer
Commons seats than another province with a smaller population, subject to the
provision in item (a) above;
(e) The current provision that allocates two seats to the Northwest
Territories and one seat to Yukon would be retained.
A permanent formula should be developed and Section 51 of the Constitution
Act, 1867 should be adjusted to accommodate demographic change, taking into
consideration the principles suggested by the Royal Commission on Electoral
Reform and Party Financing.
22. Aboriginal Peoples' Representation
The issue of Aboriginal representation in the House of Commons should be
pursued by Parliament, in consultation with representatives of the Aboriginal
peoples of Canada, after it has received the final report of the House of
Commons Committee studying the recommendations of the Royal Commission on
Electoral Reform and Party Financing. (*)
D. FIRST MINISTERS' CONFERENCES
23. Entrenchment
A provision should be added to the Constitution requiring the Prime Minister
to convene a First Ministers' Conference at least once a year. The agendas for
these conferences should not be specified in the Constitution.
The leaders of the territorial governments should be invited to participate
in any First Ministers' Conference convened pursuant to this constitutional
provision. Representatives of the Aboriginal peoples of Canada should be invited
to participate in discussions on any item on the agenda of a First Ministers'
Conference that directly affects the Aboriginal peoples. This should be embodied
in a political accord. (*)
The role and responsibilities of First Ministers with respect to the federal
spending power are outlined at item 25 of this document.
E. THE BANK OF CANADA
24. Bank of Canada
The Bank of Canada was discussed and the consensus was that this issue should
not be pursued in this round, except for the consensus that the Senate should
have a role in ratifying the appointment of its Governor.
III: ROLES AND RESPONSIBILITIES
25. Federal Spending Power
A provision should be added to the Constitution stipulating that the
Government of Canada must provide reasonable compensation to the government of a
province that chooses not to participate in a new Canada-wide shared-cost
program that is established by the federal government in an area of exclusive
provincial jurisdiction, if that province carries on a program or initiative
that is compatible with the national objectives.
A framework should be developed to guide the use of the federal spending
power in all areas of exclusive provincial jurisdiction. Once developed, the
framework could become a multilateral agreement that would receive
constitutional protection using the mechanism described in item 26 of this
report. The framework should ensure that when the federal spending power is used
in areas of exclusive provincial jurisdiction, it should:
(a) contribute to the pursuit of national objectives;
(b) reduce overlap and duplication;
(c) not distort and should respect provincial priorities; and
(d) ensure equality of treatment of the provinces, while recognizing their
different needs and circumstances.
The Constitution should commit First Ministers to establishing such a
framework at a future conference of First Ministers. Once it is established,
First Ministers would assume a role in annually reviewing progress in meeting
the objectives set out in the framework.
A provision should be added (as Section 106A(3)) that would ensure that
nothing in the section that limits the federal spending power affects the
commitments of Parliament and the Government of Canada that are set out in
Section 36 of the Constitution Act, 1982.
26. Protection of Intergovernmental Agreements
The Constitution should be amended to provide a mechanism to ensure that
designated agreements between governments are protected from unilateral change.
This would occur when Parliament and the legislature(s) enact laws approving the
agreement.
Each application of the mechanism should cease to have effect after a maximum
of five years but could be renewed by a vote of Parliament and the
legislature(s) readopting similar legislation. Governments of Aboriginal peoples
should have access to this mechanism. The provision should be available to
protect both bilateral and multilateral agreements among federal, provincial and
territorial governments, and the governments of Aboriginal peoples. A government
negotiating an agreement should be accorded equality of treatment in relation to
any government which has already concluded an agreement, taking into account
different needs and circumstances.
It is the intention of governments to apply this mechanism to future
agreements related to the Canada Assistance Plan. (*)
27. Immigration
A new provision should be added to the Constitution committing the Government
of Canada to negotiate agreements with the provinces relating to immigration.
The Constitution should oblige the federal government to negotiate and
conclude within a reasonable time an immigration agreement at the request of any
province. A government negotiating an agreement should be accorded equality of
treatment in relation to any government which has already concluded an
agreement, taking into account different needs and circumstances.
28. Labour Market Development and Training
Exclusive federal jurisdiction for unemployment insurance, as set out in
Section 91(2A) of the Constitution Act, 1867, should not be altered. The
federal government should retain exclusive jurisdiction for income support and
its related services delivered through the Unemployment Insurance system.
Federal spending on job creation programs should be protected through a
constitutional provision or a political accord (*).
Labour market development and training should be identified in Section 92 of
the Constitution as a matter of exclusive provincial jurisdiction. Provincial
legislatures should have the authority to constrain federal spending that is
directly related to labour market development and training. This should be
accomplished through justiciable intergovernmental agreements designed to meet
the circumstances of each province.
At the request of a province, the federal government would be obligated to
withdraw from any or all training activities and from any or all labour market
development activities, except Unemployment Insurance. The federal government
should be required to negotiate and conclude agreements to provide reasonable
compensation to provinces requesting that the federal government withdraw.
The Government of Canada and the government of the province that requested
the federal government to withdraw should conclude agreements within a
reasonable time.
Provinces negotiating agreements should be accorded equality of treatment
with respect to terms and conditions of agreements in relation to any other
province that has already concluded an agreement, taking into account the
different needs and circumstances of the provinces.
The federal, provincial and territorial governments should commit themselves
in a political accord to enter into administrative arrangements to improve
efficiency and client service and ensure effective coordination of federal
Unemployment Insurance and provincial employment functions. (*)
As a safeguard, the federal government should be required to negotiate and
conclude an agreement within a reasonable time, at the request of any province
not requesting the federal government to withdraw, to maintain its labour market
development and training programs and activities in that province. A similar
safeguard should be available to the territories.
There should be a constitutional provision for an ongoing federal role in the
establishment of national policy objectives for the national aspects of labour
market development. National labour market policy objectives would be
established through a process which could be set out in the Constitution
including the obligation for presentation to Parliament for debate. Factors to
be considered in the establishment of national policy objectives could include
items such as national economic conditions, national labour market requirements,
international labour market trends and changes in international economic
conditions. In establishing national policy objectives, the federal government
would take into account the different needs and circumstances of the provinces;
and there would be a provision, in the Constitution or in a political accord,
committing the federal, provincial and territorial governments to support the
development of common occupational standards, in consultation with employer and
employee groups. (*)
Provinces that negotiated agreements to constrain the federal spending power
should be obliged to ensure that their labour market development programs are
compatible with the national policy objectives, in the context of different
needs and circumstances.
Considerations of service to the public in both official languages should be
included in a political accord and be discussed as part of the negotiation of
bilateral agreements. (*)
The concerns of Aboriginal peoples in this field will be dealt with through
the mechanisms set out in item 40 below.
29. Culture
Provinces should have exclusive jurisdiction over cultural matters within the
provinces. This should be recognized through an explicit constitutional
amendment that also recognizes the continuing responsibility of the federal
government in Canadian cultural matters. The federal government should retain
responsibility for national cultural institutions, including grants and
contributions delivered by these institutions. The Government of Canada commits
to negotiate cultural agreements with provinces in recognition of their lead
responsibility for cultural matters within the province and to ensure that the
federal governments and the province work in harmony. These changes should not
alter the federal fiduciary responsibility for Aboriginal people. The
non-derogation provisions for Aboriginal peoples set out in item 40 of this
document will apply to culture.
30. Forestry
Exclusive provincial jurisdiction over forestry should be recognized and
clarified through an explicit constitutional amendment.
Provincial legislatures should have the authority to constrain federal
spending that is directly related to forestry.
This should be accomplished through justiciable intergovernmental agreements,
designed to meet the specific circumstances of each province. The mechanism used
would be the one set out in item 26 of this document, including a provision for
equality of treatment with respect to terms and conditions. Considerations of
service to the public in both official languages should be considered a possible
part of such agreements. (*)
Such an agreement should set the terms for federal withdrawal, including the
level and form of financial resources to be transferred. In addition, a
political accord could specify the form the compensation would take (i.e. cash
transfers, tax points, or others)(*). Alternatively, such an agreement could
require the federal government to maintain its spending in that province. A
similar safeguard should be available to the territories. The federal government
should be obliged to negotiate and conclude such an agreement within a
reasonable time.
These changes and the ones set out in items 31, 32, 33, 34 and 35 should not
alter the federal fiduciary responsibility for Aboriginal people. The provisions
set out in item 40 would apply.
31. Mining
Exclusive provincial jurisdiction over mining should be recognized and
clarified through an explicit constitutional amendment and the negotiation of
federal-provincial agreements. This should be done in the same manner as set out
above with respect to forestry. (*)
32. Tourism
Exclusive provincial jurisdiction over tourism should be recognized and
clarified through an explicit constitutional amendment and the negotiation of
federal-provincial agreements. This should be done in the same manner as set out
above with respect to forestry. (*)
33. Housing
Exclusive provincial jurisdiction over housing should be recognized and
clarified through an explicit constitutional amendment and the negotiation of
federal-provincial agreements. This should be done in the same manner as set out
above with respect to forestry. (*)
34. Recreation
Exclusive provincial jurisdiction over recreation should be recognized and
clarified through an explicit constitutional amendment and the negotiation of
federal-provincial agreements. This should be done in the same manner as set out
above with respect to forestry. (*)
35. Municipal and Urban Affairs
Exclusive provincial jurisdiction over municipal and urban affairs should be
recognized and clarified through an explicit constitutional amendment and the
negotiation of federal-provincial agreements. This should be done in the same
manner as set out above with respect to forestry. (*)
36. Regional Development
In addition to the commitment to regional development to be added to Section
36 of the Constitution Act, 1982 (described in item 5 of this document),
a provision should be added to the Constitution that would oblige the federal
government to negotiate an agreement at the request of any province with respect
to regional development. Such agreements could be protected under the provision
set out in item 26 ("Protection of Intergovernmental Agreements").
Regional development should not become a separate head of power in the
Constitution.
37. Telecommunications
The federal government should be committed to negotiate agreements with the
provincial governments to coordinate and harmonize the procedures of their
respective regulatory agencies in this field. Such agreements could be protected
under the provision set out in item 26 ("Protection of Intergovernmental
Agreements").
38. Federal Power of Disallowance and Reservation
This provision of the Constitution should be repealed. Repeal requires
unanimity.
39. Federal Declaratory Power
Section 92(10)(c) of the Constitution Act, 1867 permits the federal
government to declare a "work" to be for the general advantage of
Canada and bring it under the legislative jurisdiction of Parliament. This
provision should be amended to ensure that the declaratory power can only be
applied to new works or rescinded with respect to past declarations with the
explicit consent of the province(s) in which the work is situated. Existing
declarations should be left undisturbed unless all of the legislatures affected
wish to take action.
40. Aboriginal Peoples' Protection Mechanism
There should be a general non-derogation clause to ensure that division of
powers amendments will not affect the rights of the Aboriginal peoples and the
jurisdictions and powers of governments of Aboriginal peoples.
IV: FIRST PEOPLES
Note: References to the territories will be added to the legal text with
respect to this section, except where clearly inappropriate. Nothing in the
amendments would extend the powers of the territorial legislatures.
A. THE INHERENT RIGHT OF SELF-GOVERNMENT
41. The Inherent Right of Self-Government
The Constitution should be amended to recognize that the Aboriginal peoples
of Canada have the inherent right of self-government within Canada. This right
should be placed in a new section of the Constitution Act, 1982, Section
35.1(1).
The recognition of the inherent right of self-government should be
interpreted in light of the recognition of Aboriginal governments as one of
three orders of government in Canada.
A contextual statement should be inserted in the Constitution, as follows:
"The exercise of the right of self-government includes the authority of
the duly constituted legislative bodies of Aboriginal peoples, each within its
own jurisdiction:
(a) to safeguard and develop their languages, cultures, economies,
identities, institutions and traditions; and,
(b) to develop, maintain and strengthen their relationship with their lands,
waters and environment so as to determine and control their development as
peoples according to their own values and priorities and ensure the integrity of
their societies."
Before making any final determination of an issue arising from the inherent
right of self- government, a court or tribunal should take into account the
contextual statement referred to above, should enquire into the efforts that
have been made to resolve the issue through negotiations and should be empowered
to order the parties to take such steps as are appropriate in the circumstances
to effect a negotiated resolution.
42. Delayed Justiciability
The inherent right of self-government should be entrenched in the
Constitution. However, its justiciability should be delayed for a five-year
period through constitutional language and a political accord. (*)
Delaying the justiciability of the right should be coupled with a
constitutional provision which would shield Aboriginal rights.
Delaying the justiciability of the right will not make the right contingent
and will not affect existing Aboriginal and treaty rights.
The issue of special courts or tribunals should be on the agenda of the first
First Ministers' Conference on Aboriginal Constitutional matters referred to in
item 53. (*)
43. Charter Issues
The Canadian Charter of Rights and Freedoms should apply immediately
to governments of Aboriginal peoples.
A technical change should be made to the English text of sections 3, 4 and 5
of the Canadian Charter of Rights and Freedoms to ensure that it
corresponds to the French text.
The legislative bodies of Aboriginal peoples should have access to Section 33
of the Constitution Act, 1982 (the notwithstanding clause) under
conditions that are similar to those applying to Parliament and the provincial
legislatures but which are appropriate to the circumstances of Aboriginal
peoples and their legislative bodies.
44. Land
The specific constitutional provision on the inherent right and the specific
constitutional provision on the commitment to negotiate land should not create
new Aboriginal rights to land or derogate from existing aboriginal or treaty
rights to land, except as provided for in self- government agreements.
B. METHOD OF EXERCISE OF THE RIGHT
45. Commitment to Negotiate
There should be a constitutional commitment by the federal and provincial
governments and the Indian, Inuit and Métis peoples in the various regions and
communities of Canada to negotiate in good faith with the objective of
concluding agreements elaborating the relationship between Aboriginal
governments and the other orders of government. The negotiations would focus on
the implementation of the right of self-government including issues of
jurisdiction, lands and resources, and economic and fiscal arrangements.
46. The Process of Negotiation
Political Accord on Negotiation and Implementation
- A political accord should be developed to guide the process of
self-government negotiations. (*)
Equity of Access
- All Aboriginal peoples of Canada should have equitable access to the
process of negotiation.
Trigger for Negotiations
- Self-government negotiations should be initiated by the representatives of
Aboriginal peoples when they are prepared to do so.
Provision for Non-Ethnic Governments
- Self-government agreements may provide for self-government institutions
which are open to the participation of all residents in a region covered by the
agreement.
Provision for Different Circumstances
- Self-government negotiations should take into consideration the different
circumstances of the various Aboriginal peoples.
Provision for Agreements
- Self-government agreements should be set out in future treaties, including
land claims agreements or amendments to existing treaties, including land claims
agreements. In addition, self-government agreements could be set out in other
agreements which may contain a declaration that the rights of the Aboriginal
peoples are treaty rights, within the meaning of Section 35(1) of the
Constitution Act, 1982.
Ratification of Agreements
- There should be an approval process for governments and Aboriginal peoples
for self- government agreements, involving Parliament, the legislative
assemblies of the relevant provinces and/or territories and the legislative
bodies of the Aboriginal peoples. This principle should be expressed in the
ratification procedures set out in the specific self-government agreements.
Non-Derogation Clause
- There should be an explicit statement in the Constitution that the
commitment to negotiate does not make the right of self-government contingent on
negotiations or in any way affect the justiciability of the right of
self-government.
Dispute Resolution Mechanism
- To assist the negotiation process, a dispute resolution mechanism involving
mediation and arbitration should be established. Details of this mechanism
should be set out in a political accord. (*)
47. Legal Transition and Consistency of Laws
A constitutional provision should ensure that federal and provincial laws
will continue to apply until they are displaced by laws passed by governments of
Aboriginal peoples pursuant to their authority.
A constitutional provision should ensure that a law passed by a government of
Aboriginal peoples, or an assertion of its authority based on the inherent right
provision may not be inconsistent with those laws which are essential to the
preservation of peace, order and good government in Canada. However, this
provision would not extend the legislative authority of Parliament or of the
legislatures of the provinces.
48. Treaties
With respect to treaties with Aboriginal peoples, the Constitution should be
amended as follows:
- treaty rights should be interpreted in a just, broad and liberal manner
taking into account the spirit and intent of the treaties and the context in
which the specific treaties were negotiated;
- the Government of Canada should be committed to establishing and
participating in good faith in a joint process to clarify or implement treaty
rights, or to rectify terms of treaties when agreed to by the parties. The
governments of the provinces should also be committed, to the extent that they
have jurisdiction, to participation in the above treaty process when invited by
the government of Canada and the Aboriginal peoples concerned or where specified
in a treaty;
- participants in this process should have regard, among other things and
where appropriate, to the spirit and intent of the treaties as understood by
Aboriginal peoples. It should be confirmed that all Aboriginal peoples that
possess treaty rights shall have equitable access to this treaty process;
- it should be provided that these treaty amendments shall not extend the
authority of any government or legislature, or affect the rights of Aboriginal
peoples not party to the treaty concerned.
C. ISSUES RELATED TO THE EXERCISE OF THE RIGHT
49. Equity of Access to Section 35 Rights
The Constitution should provide that all of the Aboriginal peoples of Canada
have access to those Aboriginal and treaty rights recognized and affirmed in
Section 35 of the Constitution Act, 1982 that pertain to them.
50. Financing
Matters relating to the financing of governments of Aboriginal peoples should
be dealt with in a political accord. The accord would commit the governments of
Aboriginal peoples to:
- promoting equal opportunities for the well-being of all Aboriginal peoples;
- furthering economic, social and cultural development and employment
opportunities to reduce disparities in opportunities among Aboriginal peoples
and between Aboriginal peoples and other Canadians; and
- providing essential public services at levels reasonably comparable to
those available to other Canadians in the vicinity.
It would also commit federal and provincial governments to the principle of
providing the governments of Aboriginal peoples with fiscal or other resources,
such as land, to assist those governments to govern their own affairs and to
meet the commitments listed above, taking into account the levels of services
provided to other Canadians in the vicinity and the fiscal capacity of
governments of Aboriginal peoples to raise revenues from their own sources.
The issues of financing and its possible inclusion in the Constitution should
be on the agenda of the first First Ministers' Conference on Aboriginal
Constitutional matters referred to in item 53. (*)
51. Affirmative Action Programs
The Constitution should include a provision which authorizes governments of
Aboriginal peoples to undertake affirmative action programs for socially and
economically disadvantaged individuals or groups and programs for the
advancement of Aboriginal languages and cultures.
52. Gender Equality
Section 35(4) of the Constitution Act, 1982, which guarantees existing
Aboriginal and treaty rights equally to male and female persons, should be
retained. The issue of gender equality should be on the agenda of the first
First Ministers' Conference on Aboriginal Constitutional matters referred to
under item 53. (*)
53. Future Aboriginal Constitutional Process
The Constitution should be amended to provide for four future First
Ministers' Conferences on Aboriginal constitutional matters beginning no later
than 1996, and following every two years thereafter. These conferences would be
in addition to any other First Ministers' Conferences required by the
Constitution. The agendas of these conferences would include items identified in
this report and items requested by Aboriginal peoples.
54. Section 91(24)
For greater certainty, a new provision should be added to the Constitution
Act, 1867 to ensure that Section 91(24) applies to all Aboriginal peoples.
The new provision would not result in a reduction of existing expenditures by
governments on Indians and Inuit or alter the fiduciary and treaty obligations
of the federal government for Aboriginal peoples. This would be reflected in a
political accord. (*)
55. Métis in Alberta/Section 91(24)
The Constitution should be amended to safeguard the legislative authority of
the Government of Alberta for Métis and Métis Settlements lands. There was
agreement to a proposed amendment to the Alberta Act that would
constitutionally protect the status of the land held in fee simple by the Métis
Settlements General Council under letters patent from Alberta.
56. Métis Nation Accord (*)
The federal government, the provinces of Ontario, Manitoba, Saskatchewan,
Alberta, British Columbia and the Métis National Council have agreed to enter
into a legally binding, justiciable and enforceable accord on Métis Nation
issues. Technical drafting of the Accord is being completed. The Accord sets out
the obligations of the federal and provincial governments and the Métis Nation.
The Accord commits governments to negotiate: self-government agreements;
lands and resources; the transfer of the portion of Aboriginal programs and
services available to Métis; and cost-sharing arrangements relating to Métis
institutions, programs and services.
Provinces and the federal government agree not to reduce existing
expenditures on Métis and other Aboriginal people as a result of the Accord or
as a result of an amendment to Section 91(24). The Accord defines the Métis for
the purposes of the Métis Nation Accord and commits governments to enumerate
and register the Métis Nation.
V: THE AMENDING FORMULA
Note: All of the following changes to the amending formula require the
unanimous agreement of Parliament and the provincial legislatures.
57. Changes to National Institutions
Amendments to provisions of the Constitution related to the Senate should
require unanimous agreement of Parliament and the provincial legislatures, once
the current set of amendments related to Senate reform has come into effect.
Future amendments affecting the House of Commons, including Quebec's guarantee
of at least 25 per cent of the seats in the House of Commons, and amendments
which can now be made under Section 42 should also require unanimity.
Sections 41 and 42 of the Constitution Act, 1982 should be amended so
that the nomination and appointment process of Supreme Court judges would remain
subject to the general (7/50) amending procedure. All other matters related to
the Supreme Court, including its entrenchment, its role as the general court of
appeal and its composition, would be matters requiring unanimity.
58. Establishment of New Provinces
The current provisions of the amending formula governing the creation of new
provinces should be rescinded. They should be replaced by the pre-1982
provisions allowing the creation of new provinces through an Act of Parliament,
following consultation with all of the existing provinces at a First Ministers'
Conference. New provinces should not have a role in the amending formula without
the unanimous consent of all of the provinces and the federal government, with
the exception of purely bilateral or unilateral matters described in sections
38(3), 40, 43, 45 and 46 as it relates to 43, of the Constitution Act, 1982.
Any increase in the representation for new provinces in the Senate should also
require the unanimous consent of all provinces and the federal government.
Territories that become provinces could not lose Senators or members of the
House of Commons.
The provision now contained in Section 42(1)(e) of the Constitution Act,
1982 with respect to the extension of provincial boundaries into the
Territories should be repealed and replaced by the Constitution Act, 1871,
modified in order to require the consent of the Territories.
59. Compensation for Amendments that Transfer Jurisdiction
Where an amendment is made under the general amending formula that transfers
legislative powers from provincial legislatures to Parliament, Canada should
provide reasonable compensation to any province that opts out of the amendment.
60. Aboriginal Consent
There should be Aboriginal consent to future constitutional amendments that
directly refer to the Aboriginal peoples. Discussions are continuing on the
mechanism by which this consent would be expressed with a view to agreeing on a
mechanism prior to the introduction in Parliament of formal resolutions amending
the Constitution.
VI: OTHER ISSUES
Other constitutional issues were discussed during the multilateral meetings.
The consensus was to not pursue the following issues:
- personal bankruptcy and insolvency;
- intellectual property;
- interjurisdictional immunity;
- inland fisheries;
- marriage and divorce;
- residual power;
- legislative interdelegation;
- changes to the "notwithstanding clause";
- Section 96 (appointment of judges);
- Section 125 (taxation of federal and provincial governments);
- Section 92A (export of natural resources);
- requiring notice for changes to federal legislation respecting equalization
payments;
- property rights;
- implementation of international treaties.
Other issues were discussed but were not finally resolved, among which were:
- requiring notice for changes to federal legislation respecting Established
Programs Financing;
- establishing in a political accord a formal federal-provincial consultation
process with regard to the negotiation of international treaties and agreements;
- Aboriginal participation in intergovernmental agreements respecting the
division of powers;
- establishing a framework for compensation issues with respect to labour market
development and training;
- consequential amendments related to Senate reform, including by-elections;
- any other consequential amendments required by changes recommended in this
report.
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