1992
Charlottetown Accord
Consensus Report On The
Constitution
Charlottetown August 28, 1992
Final Text
Table of Contents
Preface
I: UNITY AND DIVERSITY
A. PEOPLE AND COMMUNITIES 1 - Canada
Clause 2 - Aboriginal Peoples and the Canadian Charter
of Rights and Freedoms 3 - Linguistic Communities in New
Brunswick
B. CANADA'S SOCIAL AND ECONOMIC UNION
4 - The Social and Economic Union 5 - Economic
Disparities, Equalization and Regional Development 6 -
The Common Market (*)
II: INSTITUTIONS
A. THE SENATE 7 - An Elected Senate 8
- An Equal Senate 9. Aboriginal People's Representation
in the Senate 10 - Relationship to the House of Commons
11 - Categories of Legislation 12 - Approval of
Legislation 13 - Revenue and Expenditure Bills 14 -
Double Majority 15 - Ratification of Appointments (*) 16
- Eligibility for Cabinet
B. THE SUPREME COURT 17 - Entrenchment
in the Constitution 18. Composition 19 - Nominations and
Appointments 20 - Aboriginal Peoples' Role (*)
C. HOUSE OF COMMONS 21 - Composition
of the House of Commons 22 - Aboriginal Peoples'
Representation (*)
D. FIRST MINISTERS' CONFERENCES 23 -
Entrenchment (*)
E. THE BANK OF CANADA 24 - Bank of
Canada 25 - Federal Spending Power 26 - Protection of
Intergovernmental Agreements 27. Immigration 28 - Labour
Market Development and Training (*) 29. Culture 30 -
Forestry (*) 31 - Mining (*) 32 - Tourism (*) 33.
Housing (*) 34 - Recreation (*) 35 - Municipal and Urban
Affairs (*) 36 - Regional Development 37 -
Telecommunications 38 - Federal Power of Disallowance
and Reservation 39 - Federal Declatory Power 40.
Aboriginal Peoples' Protection Mechanism
IV: FIRST PEOPLES
A. THE INHERENT RIGHT OF
SELF-GOVERNMENT 41 - The Inherent Right of Self
Government 42 - Delayed Justiciability 43 - Charter
Issues 44. Land
B. METHOD OF EXERCISE OF THE RIGHT 45
- Commitment to Negotiate 46. The Process of Negotiation
(*) 47 - Legal Transition and Consistency of Laws 48 -
Treaties
C. ISSUES RELATED TO THE EXERCISE OF
THE RIGHT 49 - Equity of Acess to Section 35 Rights 50 -
Financing (*) 51 - Affirmative Action Programs 52 -
Gender Equality 53 - Future Aboriginal Constitutional
Process 54 - Section 91(24) (*) 55 - Metis in
Alberta/Section 91(24) 56 - Metis Nation Accord (*)
V: THE AMENDING FORMULA 57 - Changes
to the National Institutions 58 - Establishment of New
Provinces 59 - Compensation for Amendments that Transfer
Jurisdiction 60 - 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 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 Commitee 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 governments
while this process was under way. It was subsequently
agreed to extend this series of meetings into June, 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 recomendations 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 teritorial 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
shedule 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 were not recorded in this summary document.
Asterisks in the text that follows
indicate areas where the consensus is to proceed with a
political accord.
___________________________________________________
I: UNITY AND DIVERSITY
A: PEOPLE AND COMUNITIES
1. Canada Clause
A new clause should be included
assaction 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 hereto, immediately after section 1 therof,
the following section:
"2. (1) The Constitution of Canada,
including the Canadian Charter of Rights and Freedoms,
shall be interpreted in a manner consistant with the
following characteristics:
(a) Canada is a democracy commited 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 the
three orders of government in Canada;
(c) Quebec constitutes eithin Canada a
distinct society, which includes a French-speaking
majority, a unique culture and a civil law tradition;
(d) Canadians and their governments
are commited to the vitality and development of official
language minority communities throughout Canada;
(e) Canadians are commited to racial
and ethnic equality in a society that includes citizens
from many lands who have contributed, continue to
contribute, to the building of a strong Canada that
reflects its cultural and racial diversity;
(f) Canadians are commited to a
respect for individual and colletive human rights and
freedoms of all people;
(g) Canadians are commited to the
equality of female and male persons; and
(h) Canadians confirm the principal 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
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 pivileges 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 amendmant
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.
- providing throughout Canada a health
care system that is comprehensive, universal, portable,
publicly administered and accessible;
- providing adequate social services
and benefis 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 brgain 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 strenthen 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
Minister's 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
Canadian government to the principle of equalization
payments. This section should be amended to read as
follows:
Parliament and the Government of
Canada are commited 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 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 principals 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 First Minister's
Conference on the Economy. First Ministers would have
the authority to create an independent dispute
resolution agency and decide on it's 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 expidited 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 posible
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 and 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 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 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 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 mirror 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 not 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 haeds of the
national cultural institutions and the heads of the
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 subject to 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 Constitutional 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 by 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 strucure 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 not be on the agenda of a future First
Minister's 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 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
House of Commons to 337 seats, to be made at the time
Senate reform comes into affect. 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 assuring that, in the first
subsequent general election, no province will have fewer
than 95% of the House of Commons seats it would receive
under strict representation-by-population. Consequently,
British Columbia and Ontario would each be assigned 3
additional seats and Alberta 2 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
and all future redistributions should be governed by the
following constitutional provisions:
(a) a guarantee that Quebec would be
assigned no fewer than 25 percent 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 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 accommmodate demographic change,
taking into consideration the principals 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 Commision 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 pusuant 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 participatew 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 inititiative 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. Protect of Intergovernmental
Agreements
The Constitutional 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 legislatures(s) enact laws approving the agreement.
Each application of the mechanism
would cease to have an effect after a maximum of five
years but could be renewed by a vote of Parliament and
the legislatures(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, prvincial 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 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
throgh 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 idenified 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
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 and all training 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 insure federal coordination of federal Unemployment
Insurance 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, commiting 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. 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 government and the province work in harmony.
These changes should not alter the federal feduciary
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 as part of such
agreements. (*)
Such an agreement would 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 Intergovernment 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
agreements 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 Intergovernment
Agreements").
38. Federal Power of Disallowance and
Reservation
This provision of the Constitution
should be repealed. Repeal requires unanimity.
39. Federal Declatory 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 declatory 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 authority of the duly
constituted legislative bodies of the 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
developments 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 ben 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 langage 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
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 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 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 Metis 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 implementations 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
negotiations.
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 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 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 relavent provinces and/or
territories and the legislatives 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 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 when 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 should
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 in the
agenda of the 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
social 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 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 Constitutuion Act, 1867 to ensure
that Section 91(24) applies to 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. Metis in Alberta/Section 91(24)
The Constitution should be amended to
safeguard the legislative authority of the government of
Alberta for the Metis and Metis settlement 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 Metis Settlements General
Council under letters patent from Alberta.
56. Metis Nation Accord (*)
The federal government, the provinces
of Ontario, Manitoba, Saskatchewan, Alberta, British
Columbia and Metis National Council have agreed to enter
into a legally binding, justiciable and enforceable
accord on Metis Nation issues. Technical drafting of the
accord is being completed. The Accord sets out the
obligations of the federal and provincial governments
and the Metis 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 Metis; and cost
sharing arrangements relating to Metis institutions,
programs and services.
Provinces and the federal government
agree not to reduce existing expenditures on Metis 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 Metis for the purpose of the Metis Nation
Accord and commits governments to enumerate and register
the Metis Nation.
V: THE AMENDING FORMULA
Note: All 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
affecting the House of Commons, including Quebec's
guarantee of 25 percent 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 province at a First Ministers'
Conference. New provinces should not have a role in the
amending formula without the unanimous consent of all
the 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 with
the extension of provincial boundaries into the
Terriories should be repealed and replaced by ths
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 ISSSUES
Other constitutional issues were
discussed during the multilateral meetings.
The consensus was 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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