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Subject: Charlottetown Constitutional Agreement
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[Slightly modified 29/09/92 by [email protected] :
Characters 'e' acute (en francais, 'e' accent aigu) which only
appeared in the word "Metis", have been changed from ^B ('\002')
to 'e'; and the dot character used to list points has been changed
from ^G ('\007') to '@' (which didn't appear anywhere in the
document - '*' would have looked a bit like a footnote reference.
I haven't found the french version yet. Nor the upcoming "legal"
version. Please notify me if you do.]
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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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[email protected] : Michael Goddard : (613) 954-0169 : Fax (613) 952-9798
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