Charlottetown Accord, 1992
Charlottetown August 28, 1992
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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