THE CHARLOTTETOWN ACCORD (1992)
(unofficial text)
SUMMARY
INTRODUCTION
This document provides highlights of the unanimous constitutional agreement of August 28, 1992. The agreement is intended to bring the Canada Round of constitutional renewal to a successful conclusion. It follows the most extensive round of public consultations ever held and a long round of negotiations with the provinces, territories and Aboriginal peoples of Canada.
These proposals are intended to serve as a reasonable compromise and as the basis for a renewed federalism that will secure our future together in one of the most successful countries in the world, a country the United Nations Development Programme considers the best place in the world to live.
UNITY AND DIVERSITY
Canada is more than a flag of convenience, more than an economic bargain. We are recognized around the world for the values we cherish C tolerance of differences and respect for different cultures and minorities; generosity; compassion for the less fortunate; freedom and opportunity for the individual. In renewing our federation, our starting point must be the values and identity we share as Canadians.
Canada Clause. Canada's Constitution would include a short and eloquent
statement of our fundamental values. The Clause would guide the courts in
interpreting the entire Constitution, including the Canadian Charter of
Rights and Freedoms. It is the appropriate place to recognize Quebec as a
distinct society within Canada and to state the commitment of Canadians and
their governments to linguistic duality.
Other important and fundamental characteristics to be recognized would
include: Canada's parliamentary democracy and federal system of government;
Aboriginal rights and the recognition that Aboriginal governments constitute
one of three orders of government in Canada; respect for individual and
collective human rights and freedoms; racial and ethnic equality and
cultural diversity; equality of women and men; and the equality of
provinces, recognizing their diverse characteristics.
Quebec's Distinctiveness. The Canada Clause would ensure that the Constitution is interpreted in a manner that is consistent with the preservation and promotion of Quebec's distinctiveness, which is based on its French language, its unique culture and its civil law tradition. Our legal and political structures have always tried to reflect and accommodate this distinctiveness and Quebec's need for cultural, social and economic security. The recognition in the Canada Clause of Quebec's distinctiveness would be accompanied by a rebalancing of the roles of the federal and provincial governments and changes to the amending formula that would reinforce that security.
Canada's Linguistic Duality. Canada contains two large and vibrant linguistic communities, complemented by a rich heritage of Aboriginal languages and the many languages of new Canadians. The Canada Clause would ensure that future interpretation of the Constitution reflected the commitment of Canadians and their governments to the vitality and development of official language minority communities throughout Canada.
New Brunswick. In a separate amendment requiring only the approval of Parliament and the New Brunswick legislature, the Constitution would be amended to entrench the principle of the equality of the two linguistic communities in New Brunswick.
Social and Economic Union. The Constitution would contain a statement of
key social and economic policy objectives shared by all of the governments
in the federation.
The social policy objectives would include comprehensive, universal,
portable, accessible, publicly administered health care; adequate social
services and benefits; high quality primary and secondary education and
reasonable access to post-secondary education; collective bargaining rights;
and a commitment to protecting, preserving and sustaining the integrity of
the environment.
Economic policy objectives to be entrenched would include: strengthening the
Canadian economic union; the free movement of persons, goods, services and
capital; ensuring a reasonable standard of living; full employment; and
ensuring sustainable and equitable development.
This provision would not create individual entitlements that could be
enforced by the courts but would guide the future actions of all governments
in Canada. A mechanism for monitoring how governments fulfil their
commitment to social and economic union would be established by First
Ministers.
Equalization and Regional Development. The wording of the constitutional commitment to equalization would be strengthened, and would include direct commitments by the federal government to making equalization payments and to consulting the provinces before changing the legislation. It would also include a commitment by all governments to provide comparable economic infrastructures and a commitment to regional economic development.
Reducing Internal Trade Barriers. Forging an economic union today means moving beyond a simple prohibition against interprovincial tariffs on goods towards free internal movement of persons, goods, services and capital. A new provision would reflect the commitment of governments to this objective. First Ministers have agreed to discuss how best to implement the principles of a stronger internal common market.
FAIR AND RESPONSIVE INSTITUTIONS
In a federal system, the institutions of the central government must be responsive to the needs and preferences of all of the component parts of the federation. Parliament must reconcile three visions of equality:
quality of citizens;
equality of provinces;
equality of the founding English and French linguistic and cultural communities.
There must also be effective mechanisms for the governments within the federation to work together and to manage their interdependence.
Senate Reform. The current Senate must be replaced with an elected, equal and effective chamber that provides balance to the representation-by-population in the House of Commons. This is a feature of other geographically large federations.
Each province would be assigned six Senators and each territory one. Additional seats would be added to represent the Aboriginal peoples of Canada. Elections would take place under federal jurisdiction at the same time as elections to the House of Commons. Elections could be by the people or by their provincial or territorial legislatures. There would be scope for the provinces and territories to provide for gender equality or to designate seats for specific purposes.
The Senate would be able to block key appointments, including the heads of key regulatory agencies and cultural institutions. It would also be able to veto bills that result in fundamental tax policy changes directly related to natural resources. In addition, it would have the power to act within 30 calendar days to force the Commons to repass supply bills. Defeat or amendment of ordinary legislation would lead to a joint sitting process with the House of Commons. At a joint sitting, a simple majority would decide the matter.
Bills materially affecting the French language or French culture would require approval by a double majority C a majority of all Senators voting and a majority of all Francophone Senators voting.
Senators could initiate bills, except for money bills, and the House of Commons would be required to deal with them within a reasonable time limit. Senators would not be eligible for Cabinet posts.
House of Commons. With the Senate based on equality of the provinces, additional seats would be added to the House of Commons so that it better reflects representation by population. Quebec would be guaranteed at least one quarter of the seats in the House of Commons. Other provinces that would initially receive additional seats would be Ontario, 18; British Columbia, 4; and Alberta, 2. In addition to the normal readjustment based on the 1991 census, a special readjustment would be made after the 1996 census. The combined number of Senators and MPs in the first new Parliament (62 + 337) would be the same as it is in the current one.
Supreme Court. The current composition of the Supreme Court would be entrenched in the Constitution. Its nine members would include three judges drawn from the civil law tradition of Quebec. Provinces would take part in the nomination process by submitting lists of candidates to the federal government, which would make the final selections.
First Minsters' Conferences. To encourage better federal-provincial cooperation, there would be a constitutional requirement to hold First Ministers' Conferences on an annual basis. Aboriginal leaders would be invited to participate in discussions of items which directly affect Aboriginal peoples. Territorial leaders would be invited to all conferences convened under this provision.
JUSTICE FOR FIRST PEOPLES
Aboriginal constitutional reform, particularly self-government, is one of the basic building blocks of a renewed federation. The Constitution would enable Aboriginal peoples to develop self-government arrangements and take their place in the Canadian federation.
The Inherent Right of Self-Government. The inherent right of the Aboriginal peoples of Canada of self-government within Canada would be recognized. Aboriginal governments would be one of three constitutionally recognized orders of government in Canada. The entrenchment of the inherent right of self-government would not create new rights to land. The progress to self-government would be through an agreed, orderly process.
Contextual statement. This would set out a context for interpreting the authority of Aboriginal legislative bodies.
A Framework for the Inherent Right. Governments and Aboriginal peoples
would be constitutionally committed to negotiating agreements that would set
out how the inherent right would be implemented. These negotiations would
ensure that self-government arrangements reflect the particular needs and
circumstances of Aboriginal communities across Canada.
A political accord among governments and Aboriginal peoples would spell out
the process of self-government negotiations. All of the Aboriginal peoples
would have access to this negotiating process.
In addition, a mediation and arbitration mechanism would be established to
facilitate the negotiation process.
A constitutional amendment would provide for a five-year delay in the
justiciability of the right of self-government. The delay would allow the
negotiating process to gather momentum and allow governments and Aboriginal
peoples to gain experience before the courts would be able to rule on the
scope of the inherent right or an assertion of that right. Following the
period of delay, a court or tribunal would have to satisfy itself that all
efforts had been made, in good faith, to arrive at a negotiated solution.
The Charter would continue to apply to Aboriginal governments. Aboriginal
governments would have access to the "notwithstanding" provisions
under similar conditions as apply to federal and provincial governments.
Transition. Federal and provincial laws would continue to apply until they are displaced by laws passed by governments of Aboriginal peoples pursuant to their authority. A law adopted by an Aboriginal government or an assertion of its authority based on the inherent right provision, would have to be consistent with those laws that are essential to the preservation of peace, order and good government in Canada.
Equality. Aboriginal and treaty rights would continue to be guaranteed equally to women and men.
Equity of Access. A provision would ensure that all Aboriginal peoples have access to those Aboriginal and treaty rights recognized and affirmed in Section 35 of the Constitution Act, 1982, that pertain to them.
Treaties. The federal government would be committed to establishing a process with Aboriginal peoples to clarify and implement treaty rights or to rectify terms of treaties where parties agree. In addition, there would be a provision to ensure that treaty rights are interpreted in a just, broad and liberal manner taking into account the spirit and intent of the treaties and the context in which they were negotiated. Provinces would participate in the process when jointly invited by the federal government and the Aboriginal group or when they are a party to the treaty.
Métis. A political accord will clarify the roles and responsibilities of the federal and provincial governments for the Métis. On the basis of this accord there would be a constitutional amendment to Subsection 91(24) of the Constitution Act, 1867, extending federal legislative jurisdiction to all Aboriginal peoples, including the MJtis.
Future Aboriginal Constitutional Process. There would be four First Ministers' Conferences on Aboriginal constitutional matters, beginning no later than 1996 and following every two years thereafter.
Federal Institutions. The specific number of Aboriginal Senators, their powers and the method of selection would be determined through discussions among governments and Aboriginal representatives. There would also be further discussion of the role of Aboriginal Canadians in the House of Commons and with respect to the Supreme Court.
Aboriginal Consent. All parties agreed on the principle of 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.
REDUCING DUPLICATION AND SERVING CANADIANS BETTER
A rebalancing of roles and responsibilities is necessary to focus the federal government on matters of Canada-wide and international importance and to clarify and protect provincial jurisdiction. The practice of domineering federal must be replaced by a true partnership based on mutual respect.
Spending Power. Unilateral spending by the federal government in areas of exclusive provincial jurisdiction would be curbed. The Constitution would require the federal government to provide reasonable compensation to provinces that choose not to participate in any new Canada-wide shared-cost programs in an area of exclusive provincial jurisdiction, if the province undertook a program or initiative compatible with the objectives of the Canada-wide program.
In addition, a framework would be established for the future use of the federal spending power in areas of provincial jurisdiction. Future uses should be in pursuit of national objectives, should reduce overlap and duplication, should not distort provincial priorities and should ensure equal treatment of provinces. This framework could be constitutionally protected and would be regularly reviewed by First Ministers.
Protection of Intergovernmental Agreements. The Constitution would be amended to create a new mechanism that governments could use to protect particular agreements from unilateral change. Each use of this mechanism would be subject to review after five years.
Labour Markets. Labour market development and training would be recognized as areas of exclusive provincial legislative jurisdiction. Provinces could oblige the federal government to withdraw from these fields or, alternatively, to maintain its spending in that province.
The federal government would retain exclusive legislative responsibility for unemployment insurance and related services and would continue to spend on job creation programs. It would also have a role in developing Canada-wide labour market polity objectives. There would be a renewed effort by all governments to develop Canada-wide occupational standards.
Immigration. All provinces could choose to exercise more control over immigration to their own provinces C currently an area of shared jurisdiction. The federal government would be obliged to negotiate and conclude agreements on immigration matters.
Culture. Responsibility for cultural matters is not currently set out in the Constitution. The renewed Constitution would give provinces exclusive legislative jurisdiction over cultural matters within the province, while recognizing the continuing responsibility of the federal government in Canadian cultural matters, including national cultural institutions and the grants and contributions delivered by these institutions. The federal government is committed to negotiating cultural agreements with the provinces in recognition of their lead responsibility for cultural matters within the province and is committed to ensuring that the federal government and the province work in harmony.
Provincial Jurisdiction. Exclusive provincial jurisdiction would be recognized in the areas of forestry, mining, tourism, housing, recreation and municipal and urban affairs. Each province could require the federal government to negotiate an agreement setting out the role it would play in that province, and to transfer the appropriate resources. These changes to federal and provincial roles would not affect Aboriginal rights or Aboriginal governments.
Regional Development. The federal government would be obliged at the request of any province to negotiate regional development agreements that could then be protected from unilateral change.
Telecommunications. The federal government would be obliged to negotiate
agreements with the provinces to coordinate and harmonize the activities of
regulatory agencies in this field.
THE AMENDING FORMULA
The rule for changing the Constitution should be flexible enough to adapt to changing needs and circumstances but stable enough to provide protection against arbitrary and unpredictable change. All changes to the amending formula now require the unanimous agreement of the provinces and the federal government.
National Institutions. Once the Senate has been reformed in this round of constitutional renewal, any future changes would require unanimity. Changes to the composition of the Supreme Court already require unanimity, while the nomination and appointment process for Supreme Court judges would remain a 7/50 matter (requiring the agreement of seven provinces, representing at least 50 percent of the population). Future amendments affecting the House of Commons would require unanimity.
Establishment of New Provinces. The current 7/50 amending formula for creating new provinces would be rescinded. It would 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. The new provinces would not acquire a role in the amending formula without the consent of all provinces and the federal government, except for unilateral or bilateral issues. Nor would they be assigned additional Senators without the unanimous consent of all the provinces and the federal government.
Compensation for Amendments that Transfer Jurisdiction. In the case of amendments that transfer provincial jurisdiction to Parliament, the federal government would be obliged to provide reasonable compensation to provinces to which the amendment does not apply. This is the so-called "opting out with compensation" provision.
CONCLUSION
This agreement, containing all the matters set out above, forms the basis of the renewal of the Canadian Constitution.
(Text prepared by Intergovernmental Affairs, Privy Council Office)
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