A Critique of the Charlottetown Accord
October 13, 1992 self
The bulk of this pamphlet is a section by section critical commentary on the Charlottetown Consensus Report on the Constitution of August 28, 1992. The Consensus Report has been widely printed in newspapers and is being slowly distributed to most Canadians. What follows should be read in conjunction with the Consensus Report. Abbreviated accounts of what is proposed are usually tendentiously misleading. In particular, publications of the Government of Canada such as Our Future Together, which is also being widely distributed, are highly charged propaganda for the "Yes" campaign and not the objective information they pretend to be.
INTRODUCTION
The Consensus Report is long and throughout deliberately vague. At a great many points, usually indicated by an asterisk, what it means is left to be decided in a "political accord". This means more dealing between Mulroney and Clark and the premiers and with the native leaders before we can know how we are to be governed and before the politicians will return to their responsibilities. Indeed the Consensus Report provides that we shall never return to responsible government. The process of intergovernmental negotiation will be entrenched in the Constitution.
Many people rightly complained that we should have a legal text before voting in order to know what the Consensus Report really means. The "Yes" propaganda dismissed this with the argument that a legal text is just a translation of the Consensus Report into a language no one but lawyers understands. But with less than two weeks to go before the vote, while this pamphlet was being completed, a legal text, "subject to approval" has been released after all and is being waved about by the "Yes" campaign not intending that anyone should read it. The text was given to Quebec leaders four days early and leaked in Quebec but withheld from the rest of Canada "to be fair to everyone".
Because the Consensus Report is so vague, the legal text is needed to determine how much of what it means is to be left to the courts, already strained to the limit by the Charter , and how much to future negotiations. With the release of the legal text it is clear that both litigation and negotiation will be endless if the Consensus Report is approved. In most areas provisions for negotiations will be incorporated into the Constitution. The may even be litigation about negotiations, something that is already beginning. The legal text largely carries the vague language of the report into the Constitution. If it is adopted, Canada will have one of the longest and vaguest most impractical constitutions in the world.
The Consensus Report is not an agreement. Where it is vague or a political accord is required it is an agreement to disagree until the question of consulting the people can be got out of the way.
The vagueness of the Consensus Report and the legal text is a sufficient reason in itself for voting "No". But it is not the best reason. A "No" that was interpreted simply as a demand for clarification and sent the politicians back to their dealing to come back for a second referendum in a year's time would be a step forward, but it would not take us out of the constitutional woods. Canada needs a "No" that will stop the constitutional dealing for good. It needs this "No" because at every point, though it is impossible to know where the Consensus Report is taking us, the direction is wrong and points towards the destruction of Canada.
To appreciate this fully it is necessary to review the Consensus Report in detail. Those who have not the time or the stomach for this constitutional dog's breakfast can skip to page 22 for a summary of how our politicians are leading us astray.
ANALYSIS
1.
The addition of the vague general language of the "Canada Clause" to the Constitution will invite the courts to try to manage each of the broad political issues it raises, which should be left to the democratically elected parliament and legislatures in Ottawa and the provinces.
The courts have always played an essential role in interpreting the constitution. Since Confederation they have had to interpret and enforce the distribution of powers in the British North America Act . Since 1982 they have had to interpret and enforce the Charter of Rights and Freedoms . The courts' management of the distribution of powers has been difficult, but after 125 years they have arrived at a practical and clear settlement of the issues. The new responsibilities under the Charter , though in large part involving traditional legal issues of criminal procedure and civil rights, have stretched the capacities of the courts to their limits.
The courts are not capable of handling the further issues the "Canada Clause" and other proposals hand to them. By asking the courts to resolve more political issues the proposals will politicise the courts, stifle democratic responsibility and undermine the authority of the courts. The courts cannot resolve such issues efficiently and by trying to do so they will slow down the already dangerously slow administration of ordinary justice.
Most of the "Canada Clause" will seem banal and trite, though that does not mean that unpredictable dangers to democratic government will not result from it. But some of the "Canada Clause" is obviously controversial and dangerous.
The "Distinct Society" clause was at the heart of the rise and fall of Meech Lake because of its ambiguous importance. In English Canada it was presented as an innocuous statement of the obvious, merely expressing a respect for Quebec that would make it feel at home in Canada without having any practical consequences. In Quebec it was presented as the final achievement of the ambitions of Quebec nationalists: it would change everything. It is impossible to say what it would have meant through the years if Meech had passed and in constitutional litigation and political manoeuvring its meaning had been revealed. The only certainty is that both English Canada and Quebec would have been shocked or disappointed by what it meant and ill will and discord would have been promoted.
The reintroduction of the distinct society in the supreme governing clause of the Constitution will be taken by Quebec as a grant of special status. If, as we are assured by the English "Yes" campaign, it does not mean that, Quebec will be back for more in an ugly mood.
The commitment to "respect for individual and collective human rights and freedoms of all people" is a dangerous attempt to satisfy two conflicting theories of rights and freedoms. Individual and collective rights and freedoms must conflict. Though, arguably, some language and aboriginal rights now in the Constitution are collective, they are specific and limited. The inclusion of collective rights and freedoms in the Consensus Report will provide an unlimited opening for the suppression of individual rights and freedoms in the name of unspecified collectives. It throws the whole meaning of rights and freedoms in the Constitution up in the air and imperils them all.
2.
This section takes the governments of Aboriginal peoples outside the Charter . It exposes Aboriginal peoples to the violation of their rights and freedoms as Canadians by their governments claiming to act in relation to the exercise or protection of their languages, cultures or traditions. Section 43 cannot make up for this exemption.
3.
Sections 16 to 21 of the Charter already secure the rights of English and French in New Brunswick. The proposed additional provision either would have no effect or would involve the courts in managing the language, educational and cultural institutions of New Brunswick against the will of its people and would override other provisions of the Charter .
4.
A constitution should not make policy, but define the institutions and rights by which the people through their governments can make policy for their times. The proposed "Social and Economic Union" may set out objectives that most Canadians now support. But it is only the support of Canadians for those objectives that can protect them. If Canadians in the future have other priorities, the constitution cannot and should not attempt to force them to follow our priorities.
There is no statement of where the money to pay for all these good things is to be found and without a statement of the price and how it is to be paid these provisions are deceitful.
Setting out as an objective "a health care system that is comprehensive, universal, portable, publicly administered and accessible" cannot in the slightest degree assure that that objective will be met or pursued. The only thing it can do is to invite the courts to interfere with democratic government under the pretext of furthering that objective. But courts cannot and should not try to manage a health care system, to raise the money it needs or to control its costs.
The Consensus Report acknowledges this in providing that the "Economic and Social Union" is not to be enforced by the courts. But its inclusion in the Constitution can still have some effect on how the courts read other parts of the constitution. That much is admitted by the provision that it should not abrogate or derogate from the Charter . The inclusion of the Union provisions will further politicise the constitution and the courts. It will turn public debate away from the merits of policies to their supposed compatibility or incompatibility with the constitution.
Any mechanism for monitoring the "Social and Economic Union" will be an ineffective distraction from governments' democratic responsibility. Each provincial government and the national government within its jurisdiction should pursue its several objectives and answer to its legislature or parliament and the people for its work.
The Consensus Report says that a "First Ministers' Conference" should determine the mechanism. Any mechanism devised by the Premiers will just be an excuse for escaping responsibility and pointing fingers at other governments. It introduces for the first time the perversion to be entrenched by section 23. "First Ministers" have had until now no legal or constitutional authority. But if the "Yes" wins they are to be a college of sovereign princes with authority independent of the legislatures and parliament to whom they should be responsible and by whose confidence alone they serve.
Though broadly attractive the "policy objectives" are not clearly uncontroversial. What, for instance, is meant by the phrase "publicly administered" used of the health care system. Hospitals are mostly private charities financed largely, but not entirely, by government grants. Doctors are mostly private professionals, not civil servants. Is this compatible with the system being publicly administered? There are a range of models of health care systems from the British National Health Service to European systems of state regulated universal private health insurance. All face similar problems of controlling costs while offering universal accessibility. Does the health care policy objective have a bias in one direction or another? Should it?
5.
The revised subsection 36(2) changes "committed to the principle of making" to "committed to making" equalisation payments. Together with the other proposed changes to section 36, it adds to the already too great obligation of the national government to raise taxes not for its responsibilities but to subsidise the provinces, which take credit for the spending but take no responsibility for the taxing. The changes would require the national government to have "meaningful consultation" with the provinces on its equalisation legislation with the provinces: to negotiate its handouts with the recipients.
6
There was hope last year that Economic Union proposals would bring an end to the interprovincial trade barriers that make a mockery of our claim to be a united nation. But Ottawa caved in to the provincial governments and has now agreed to accommodate the trade barriers rather than forbid them. This is provided for in the "political accord of August 28, 1992", which is not being distributed with the Consensus Report.
No amendment to the constitution is needed to solve the problem as section 121 of the British North America Act provides for free trade within Canada. What is needed is the political will to apply it. Canadians have a right to free trade across the country. Instead the "First Ministers" again would set up a dispute resolution agency, such as independent states set up. This would allow the provincial governments to control interprovincial trade barriers and maintain them.
7.
An elected Senate would be only an obstructive Senate. It would gravely weaken the national government, when the giveaways to the provinces will make it more than ever necessary that within its remaining powers the national government can exercise strong leadership.
Parliamentary responsible government was historically developed and defined in Canada in the 1840's. It requires that a government with the confidence of the House of Commons should be able to pass its principal policies through parliament. An elected Senate, structured so that it must frequently have a different majority from the House of Commons, would be in regular conflict with the House of Commons obstructing and distracting and never able to act constructively. It would be irresponsible, never having to answer to the people for a coherent programme of government. By thwarting the government from time to time it would make the government irresponsible by preventing it from applying a coherent programme. The deadlock and irresponsibility that increasingly characterises American government would be imported into Canada.
The manner of electing senators will be left in important respects to the provinces. They are permitted, in the legal text, to require that an equal number of men and women be elected, a flagrant violation of democracy that would not be permitted without express constitutional sanction.
8
Many people are rightly disturbed by the proposal to guarantee Quebec 25% of the seats in the House of Commons whatever its population. What justification then can there be for making the votes of Prince Edward Islanders count 70 times more than the votes of Ontarians in an any way effective Senate? The advocates of a triple E Senate insist on representation by population in the House of Commons but abandon it in the Senate as if it did not matter there.
We either trust ourselves to govern our national affair democratically by representation by population or we do not. If we do we, have no need of an equal Senate. If we do not, we cannot solve the problem by setting up an equal Senate to fight with a democratic House of Commons.
9.
The proposal of aboriginal senators is typical of many points in the Consensus Report where issues are not resolved but open for further distracting negotiation. "Yes" will not mean an end to constitutional talks but a go ahead for more.
The proposal of a racially restricted election by a racially selected electorate is repellent. The aboriginal peoples are Canadians and should vote in Canadian elections.
The few proposed aboriginal senators would serve no useful purpose. It would simply make more complicated and uncertain the parliamentary arithmetic that the senate proposals will make the national government depend upon. The suggestion of special majority power on aboriginal issues is another instance of the racial separatism that runs through the consensus report.
10.
The statement that the Senate should not be a confidence chamber reveals a gross misunderstanding of responsible government and the meaning of the government having the confidence of the House of Commons. The need for the government to have the confidence of the House of Commons is not law or even a convention of the constitution. It is a practical necessity of responsible parliamentary government. The confidence of the House is simply its readiness to pass the government's principal measures and to vote it the money to carry on government. Without this a government cannot take responsibility for the conduct of the nation's affairs and cannot be held responsible. If the Senate is to have powers to prevent the government from carrying out its responsibilities the government will have to have the confidence of the Senate to take responsibility whatever the constitution says.
11, 12, 13 and 14.
An attempt has been made to limit the power of the Senate to obstruct government by defining four categories of legislation. In the case of money bills the Senate could only hold them up for 30 days and most other bills a joint sitting of the Senate and the Commons could pass by a majority. But elected senators, some representing as many as a million voters, would use whatever powers they had to the full. As they would have no responsibility for the good government of the country they would do as much as possible to distract the government. Legislation would be continually bogged down and fought over by senators playing politics.
"Fundamental tax policy changes directly related to natural resources[ the legal text broadens this to include electricity] " would require Senate approval in any event. What this might involve we cannot know, but if a government supported by the majority of Canadians believes that fundamental changes in the taxation of natural resources are needed, it should not be thwarted by senators who might represent a small minority of Canadians.
Legislation affecting French language and culture would be subject to a veto by French-speaking senators. The definition of French-speaking senators could become viciously controversial. The Speaker of the Senate is to rule absolutely who is a French-speaking senator and what measures they can veto. This is a dangerous power in someone elected by such an unrepresentative assembly.
In practice this provision is likely to mean that Quebec senators, elected as delegates of the National Assembly of Quebec, will have a veto on language legislation. French language rights are thoroughly guaranteed in the constitution already. The reform of the Official Languages Act and other language related legislation should not be made hostage to Quebec. Public support for bilingualism will depend on its flexibility and openness to reform. A Quebec veto on changes could threaten rather than protect bilingualism and breed resentment rather than unity
Senate approval would continue to be required for constitutional changes. The present Senate is expected to approve anything, including its abolition. An elected Senate would not be so docile. The proposed provincial constitutional vetoes will make future constitutional changes more difficult and painful than what we have been through in the last six years. The impracticality of the present package will make changes urgent in a few years. There will be no need for the Senate to have a constitutional veto if the provinces each have one.
15.
The provision for Senate ratification of "key appointments" will make a political football and spectacle of whatever appointments it may cover. Many of the best people to fill such positions will not be willing to let their lives and careers become hostages to partisan bickering. The proposal is an example of a craven emulation of American political practices that are bad in themselves and do not fit with responsible parliamentary government. Many recent American examples should have warned us off this practice.
The American system cannot work because the role of Senate confirmation is inexplicable. Where the government has a majority in the Senate, it will be able to get who it wants, who will submit to the process, appointed, but there will still be bickering and appointments will be tarnished, but go ahead anyway. Where the government does not have a majority in the Senate, the Senate will play cat and mouse with appointments and to the extent it wishes, deny the government the power to appoint people it has confidence in and undermine the government's responsibility. One of the achievements of responsible government when it triumphed in Canada in the 1840's was the ability of democratic governments to see policies administered by people they chose. The provision for Senate ratification sets back constitutional development 150 years.
The only position specified in the Consensus Report is the Governor of the Bank of Canada. This position, more perhaps than any, should not be political. On the other hand, given the centrality of the Bank's role in economic policy, it is necessary that the government should be able to chose who it thinks best to administer monetary policy. If it is unable to, it will absolve itself of responsibility for monetary policy and the state of the economy, blaming the Bank as American administrations blame the Federal Reserve Board.
Other key appointments are to be the subject of a "political accord". As with many other key elements of the revolution in our government we are being asked to approve, it is to be settled later. The government to government negotiations are to go on and on and pressing issues at the national level and in the provinces will continue to be ignored. A "Yes" will not be a vote to return to responsible government, but a green light to go ahead with more bickering and distraction.
16.
Forbidding the appointment of senators to the cabinet will mean that there is no one in the Senate to answer for the government's conduct. It will encourage the Senate to adopt a fractious, antagonistic and obstructive position against the government. Denied the possibility of responsible participation in the government senators will act irresponsibly.
All the Senate provisions hobble the national government with restrictions that the provincial governments will remain free of. The provinces long ago rightly abolished their legislative councils and their assemblies do not have to worry about what will pass through an upper house. Provincial appointments are not subject to any confirmation and if they were, confirmation by assemblies in which their governments have a majority would be a sham. But the national government is to be subject to this unique impediment.
17.
The British North America Act simply permits parliament to set up a general court of appeal for Canada. This was done when the Supreme Court was established in 1875. There is no likelihood that the Supreme Court will be abolished. But entrenching it in the constitution will mean that its constitution, its numbers and its organisation will be fixed and only open to change through the painful and damaging process of constitutional negotiation. The enormous burdens already placed on the Supreme Court indicate that its numbers might well be increased. This will be impossible without buying off the provinces.
18.
The traditional appointment of three civil law judges from Quebec has assured that there was always a panel of judges available to deal with cases involving Quebec law, which is based on principles different from the common law of the other provinces and the territories. An entrenched guarantee of one third of the court to a province with only one quarter of the population is undemocratic. It implies that the members of the Supreme Court are to act not as judges but as international arbitrators.
19.
The provision for appointment of judges to the Supreme Court from provincial lists implies that judges should be delegates of the provinces not administering impartial justice but protecting the interests of provincial governments. This will corrupt and undermine the authority of the Court.
As the proposal for interim appointments confirms, the joint appointment of judges by the provincial and the national governments will make appointments political footballs and further disrupt the work of the court and undermine its authority. The court's crucial role, not only in interpreting the constitution, but in assuring the administration of civil and criminal justice throughout the country cannot stand this injury.
20.
If aboriginal people participate fully in Canadian society there will regularly be judges of aboriginal origin who should and will be appointed to the Supreme Court. But as the vagueness of this section confirms there is no way aboriginal representation on the court can be guaranteed. There should be no racial position on the Supreme Court.
This section again demonstrates that a "Yes" vote would be a vote to go on with further distracting constitutional negotiations and that we are being asked to approve a blank contract.
21.
The supposed compensation of Ontario, Quebec, British Columbia and Alberta for their underrepresentation in the Senate by extra seats in the Commons is a fake. It would do nothing more than give them the extra seats due them because of their growing populations a few years early. After the 1996 census all provinces except Quebec and Prince Edward Island will have the number of Commons seats their population entitles them to. So there will be no compensation to Ontario, British Columbia and Alberta for their underrepresentation in the Senate and in the Senate and the House of Commons sitting jointly.
Quebec has about 25% of the population of Canada now. But it is sure to have a continually lower proportion of the population. With all the existing constitutional guarantees for Quebec, and all the more if the special powers in the Consensus Report are granted to it, it should not have a guaranteed representation in the Commons.
Here again the Consensus Report leaves further issues to be resolved. Again a "Yes" will invite further constitutional negotiation.
22.
There should be no racial seats in the Commons. If aboriginal people participate fully in Canadian society there will regularly be members of aboriginal origin elected to parliament. If they are to be governing themselves as proposed in sections 41 to 56, they may not be regularly elected to parliament, but they will have chosen, in the South African phrase, "separate development" and will have to live with the consequences.
23.
Anyone who understands our constitutional tradition knows that a "First Minister" is simply a "first among equals", the chairman of a cabinet collectively responsible to parliament or a legislature for the government's conduct of the nation's or the province's affairs. A "First Minister" has little or no legal power by himself. Of course, in practice premiers and prime ministers have come to hold great political authority. But this is not a trend that should be encouraged or given legislative recognition. Still less should the "First Ministers" be entrenched in the constitution. This sets them up as sovereign princes meeting to decide the affairs of the nation while parliament and the legislatures wait in humble silence to be told what they must do.
The proposal for perpetual First Ministers' Conferences confirms that far from settling national provincial disputes and eliminating duplication, the Consensus Report guarantees that there will be no end to them. It puts another break on the effectiveness of the national government. If the provinces are to have their say in the Senate why should the premiers be regularly summoned together to scold and distract the national government as well?
In a healthy Confederation, First Ministers would rarely meet as a group, as was true in Canada for most of the last 125 years, until the obsession with the constitution began in the 1960's. In the last few years they have become so frequent that First Ministers have for long periods abandoned their chief responsibilities in Ottawa and the provinces for conferences that have become the equivalent of the distractions of foreign travel for a head of state in trouble at home.
24.
The dangers of a Senate role in the appointment of the Governor of the Bank of Canada are discussed under section 15. This section confirms the intention of the politicians to have round after round of constitutional negotiation if encouraged by a "Yes". Further constitutional discussion of the Bank of Canada will injure international confidence in the dollar. This is what the "Yes" promises in the long run.
25.
This provision entitles provinces to take money raised by the national government from all Canadian taxpayers for national programmes and spend it as they see fit so long as it is in some indefinite way "compatible with national objectives". The Consensus Report again fails to define what would be "compatible" inviting further bickering between the national and provincial governments. Most of the issues will end up being resolved by the Supreme Court, which will be made a political arbitrator rather than a court of law.
The dangers of arbitration by the Supreme Court would not be lessened because First Ministers would be given a supervisory role over shared cost programmes. The development, financing, reform and termination of shared cost programmes would become a three ring circus between the national government, the First Ministers and the Supreme Court, with some provinces, Quebec almost always, opting out of the programmes, but still having their say in them through members of parliament and senators, judges on the Supreme Court and their First Ministers.
Any provision that separates responsibility for raising money from responsibility for spending it is vicious. Like most of the provisions of the Consensus Report this one weakens the national government to buy off the provincial governments.
26.
The provision to provide constitutional protection for intergovernmental agreements would mean that once the national government has agreed to raise money from Canadian taxpayers for programmes administered by the provinces it could no longer control expenditure on those programmes. The ability of the national government to control its expenditures and its responsibility to Canadian taxpayers for the money it takes from them would be broken. Canada's government would become an indentured servant of the provinces, who could spend without taking responsibility for the resulting taxation.
Such agreements would be required for most of the subjects of sections 25 to 39. The legal text repeatedly says that the Government of Canada shall negotiate and conclude within a reasonable time an agreement with a province requesting one. If it does not it risks having one imposed by the courts. Whatever agreement was negotiated or imposed it would have to be done over all again in five years. These provisions require the perpetuation of intergovernmental negotiations and haggling.
27.
Immigration is necessarily a national responsibility. But the legal text says that the Government of Canada shall conclude an agreement with any requesting province for the admission of aliens to that province. As anyone admitted to any province has the right to live and work anywhere in Canada this provision is absurd. Yet these agreements once entered into would have something of the character of constitutional amendments and the national governments power would be given away province by province.
The provincial governments should have no role in immigration unless they simply want to promote the attractions of their provinces by publicity, which they are perfectly free to do now.
28.
Every analyst of unemployment insurance emphasises the need to coordinate it with labour market development and training. But the Consensus Report would break that link by requiring the national government to continue pouring out money for unemployment insurance while having no role in assuring that the unemployed can return to work. National spending on "job creation" or make work projects, the most wasteful labour market spending, is to be protected, but the coordination of this with training and improving productivity is to be broken. The provincial governments will be allowed "to constrain" Ottawa's spending on labour market development and training, but this does not mean that they will impose fiscal responsibility. It means that they will take the money and decide themselves how it is to be spent.
How exactly all this would work is again left to "political accords" and the courts. What is certain is that the national government will be weakened again by being required to raise taxes without the means of controlling the expenditures.
29.
Any government responsibility for culture should be to assist in our national understanding and achievements and our understanding of each other. It is an essentially national responsibility and there is no justification for trying to give the provinces an exclusive jurisdiction in culture. The proposal is incoherent and incomprehensible and at best unnecessary. The provinces already have a large and unrestricted role in culture and this provision will only restrict the national government in some way to be sorted out by the courts, if not by further constitutional negotiations.
The impetus behind this provision is Quebec's national ambitions. Quebec will expect Ottawa to retreat from any cultural activity in Quebec and the other provincial governments are happy to look for any opportunity to enhance their powers at the expense of Canada. If culture in Quebec is left to the Quebec government the separateness of Quebec will be encouraged.
30.
Forestry is largely within provincial jurisdictions now under the British North America Act . The division of powers under the British North America Act has been practically and sensibly settled in the 125 years since Confederation by the courts. Any changes now will not clarify but confuse and unsettle the division that has been settled in the last 125 years.
To make forestry an exclusive provincial jurisdiction would deny the national government an important tool in environmental policy. The national government must have a role in environmental policy and, given the interconnectedness of forests and other parts of the environment and the national scope of the issues, making forestry an exclusive provincial jurisdiction would be destructive and provincial in the worst sense.
The provision for agreements between the national and provincial governments contemplates that the national government be tied down to continuing financial obligations for forestry while losing control over the spending. With this and the following five sections the national government is to be stuck with indefinite continuing responsibilities while losing power to the provincial government. We would have government by intergovernmental negotiation beyond democratic responsibility at either the national or the provincial level.
31.
Mining too is now largely a provincial responsibility. Making it "exclusive" will not clarify but confuse the settled division of powers. Strictly excluding the national government from mining will hamper in its environmental, health and economic responsibilities.
32.
Making tourism, the most important parts of which are interprovincial or international, an exclusive provincial jurisdiction is preposterous. Is the national government to be forbidden to advertise the attractions of travel in Canada or to offer information and assistance to tourists or to regulate airlines and other common carriers in order to promote tourism?
33.
Housing falls largely within the provincial jurisdictions now. The principal exception is the Central Mortgage and Housing Corporation. This plays an important role in financing housing and the financing of housing as affected by economic and tax policy is the most important part of housing policy. If the provinces are really to have exclusive jurisdiction over housing the national government should be out of this entirely. The principal residence capital gains exemption is perhaps the most important national housing measure and would have to be abolished. If this provision does not mean that, and it probably does not, it is not a clarification but a confusion of jurisdictions to be negotiated and litigated in the years to come.
34.
The national government's responsibility for international sporting competition, national health, travel and competition policy would be undermined by making recreation an exclusive provincial jurisdiction. Unless the national government is going to abandon these areas completely the exclusive provincial jurisdiction will not be clarifying but confusing and distracting.
35.
Municipal affairs are already an exclusive provincial jurisdiction. What exactly is meant by urban affairs will have to be negotiated and litigated in the years to come, but certainly many "urban affairs" raise national issues that require national solutions and the constitution should not bar the national government from seeking them. Crime and ethnic relations and population distribution and the balance between cities and the countryside are all urban issues that need to be addressed nationally.
36.
The national government is to be forced to enter agreements with any province that asks for regional development. Regional development is not to become a separate head of power under the Constitution because the provinces want to be able to force the national government to spend on regional development without taking responsibility for raising the money themselves. This provision gives the provinces a right to demand handouts, for what has very often been scandalously wasteful spending.
37.
Telecommunications is an inherently interprovincial and international field. The Supreme Court of Canada has confirmed that the provinces have, rightly, no role in telecommunications regulation under the existing division of powers. What the proposals call agreements "to coordinate and harmonise" would be agreements to confuse and detract from the national government's responsibility.
Sections 27 to 37 all pass power from the national government to the provincial governments. They unsettle and confuse the division of powers rather than avoiding duplication and overlap as the government's supposedly objective information campaign dishonestly pretends. While passing power to the provinces they stick the national government with financial responsibility subject to provincial government control. The national government, left with responsibility without power, will be severely weakened.
Sections 25 to 37 allow for the development of a patchwork Confederation in which different provinces join in some programmes and not others, but they all take the money and all keep their full influence in the national government through parliament, the Supreme Court and the First Ministers' Conferences. Quebec would keep its specially protected disproportionate influence in the House of Commons and the Supreme Court, while dropping out of the maximum number of national programmes building up the jurisdiction it has sought under the name of special status piecemeal. This is what Robert Bourassa has promised Quebec nationalists in selling the Consensus Report. He will be helped in his task because sections 25 to 37, like the rest of the constitution, will be interpreted in light of the distinct society clause.
38.
The powers of disallowance and reservation were little used even in the first decades after Confederation and have been unused now since 1943. Politically they are unlikely to be used except in extraordinary circumstances. But since Confederation they have expressed the principle that the provincial governments are servants of the national interest as much as the national government and at the limit subject to it supervision. The repeal of these powers effectively creates in the provinces sovereign states, which through the Senate, the Supreme Court of Canada and a maze of intergovernmental agreements will supervise the national government in the interests of the provinces. The provision sets the seal on a policy of sovereignty association, adopting for the whole country much of the Parti Québecois' policy for Quebec.
39.
The declaratory power has been used to declare that the development of atomic energy and the St. Lawrence Seaway are for the advantage of Canada. It is an important tool in the national government's responsibility for national development. Requiring the agreement of provinces to its use undermines national responsibility and makes the national government subservient to the provincial governments, as the Consensus Report consistently does.
40.
Whatever the constitution of Canada and whatever the powers of the national and provincial governments, aboriginal peoples should be subject to them with all other Canadians. No question arises from the division of powers of derogating from rights of aboriginal peoples. The "protection measures" simply suggest that they should be exempt from the constitution. The next 16 sections allow us to peer into the dark future where the aboriginal peoples are to be lead off into separate development at the expense of Canada and their own right to join with all Canadians in a just and prosperous society.
41.
The material and social deprivation of many aboriginal people in Canada is the most pressing social and historic issue in Canada. It must touch the conscience of all Canadians. Most Canadians understand this and their keenness to see the issue generously addressed has been expressed in polls showing strong support for aboriginal self-government. But the support is misguided and based on a lack of understanding of what self-government must mean. Among the aboriginal peoples' leaders the demand for self-government is naturally nearly unanimous as it would mean power for those leaders, guaranteed to be big fish in many little ponds.
Though the provisions for aboriginal self-government are the largest part of the Consensus Report, they are also the most uncertain. They leave the concrete meaning of self-government to be settled by further negotiations. "Yes" will mean more constitutional negotiation. As people come closer to understanding what it may mean opposition will grow.
Self-government will mean an internal separatism that will seriously damage Canada. But the aboriginal peoples themselves will suffer most from it at a time when they should hope at last to be brought in from the margins of Canadian society to which history and prejudice have consigned them.
There is no "inherent right to self-government" of the aboriginal peoples beyond what they share with all Canadians. The proposals do not recognise such a right but offer them internal separation in a dead end that will be dependent on subsidies from the rest of Canada.
There is no room for a third order of government in Canada. The provinces and the nation may be two, but will aboriginal people, who are certainly Canadian citizens, also be citizens of the respective provinces, or will they have little provinces of their own? Will their self-governing jurisdictions be carved out of the national or provincial powers?
The "authority" described for the aboriginal governments is completely novel and has never been dealt with by the courts:
a] to safeguard and develop their languages, cultures, economies, identities, institutions and tradition; and,
b] to develop, maintain and strengthen their relationship with their lands, waters and environment
so as to determine and control their development as peoples according to their own values and priorities and ensure the integrity of their societies.
These might be the powers of sovereign national governments. They are broader than the powers of either the national or provincial governments, or even of the two levels of government combined. The Canadian national and provincial governments must accommodate a variety of peoples, values, cultures, identities and traditions. The aboriginal governments are to be licensed to pursue national goals beyond what is permitted to Canadian governments. This supernationalist conception of government is being rejected around the world and even moderate nationalists reject it. But it is to be entrenched in Canada.
Section 41 assumes that it is so obscure that it will have to be worked out in "courts or tribunals" and that negotiations will be constantly required to accommodate these aboriginal statelets in Canada. But the Canadian people will have no control through their democratic institutions. The courts will dictate. The arguments and friction and ill-will will be endless.
42.
Delayed justiciability means that "the inherent right of self-government" is to be entrenched, decided blindly now and by this years' politicians, when there is no agreement what it means. Politicians, including the aboriginal politicians who speaking for themselves claim to speak to for all aboriginal peoples, will have five years, after Canadians have said "Yes" to a blank contract, to see if they can agreed what it means. After that we will be subject to the untrammelled dictatorship of the courts, with the politicised Supreme Court telling us what it all means.
43.
The Charter applies now to all Canadians governments. To say that it should apply immediately to governments of aboriginal peoples should not be necessary. It is an attempt to preempt criticism that aboriginal self-government will detract from the rights and freedoms of Canadians, in particular aboriginal Canadians. But if aboriginal governments are to be established on the premise that everything about aboriginal peoples is different and must be preserved, as section 41 implies, saying the Charter applies means nothing. It is how the Charter would apply that matters, and how it would be affected by the extravagant autonomy granted to the aboriginal peoples. Section 2 has already exempted the aboriginal governments from the Charter for the protection of their languages, culture and traditions.
Granting aboriginal governments the right to resort to the notwithstanding clause confirms that they are to be sovereign governments beyond the control of the national or provincial governments and free to cast off the supervision of the courts when it inconveniences them. When the Consensus Report says "conditions... appropriate to the circumstances of Aboriginal peoples and their legislative bodies", it means: "We don't know what we are talking about, but don't ask questions and say "Yes!" when we tell you to."
44.
Nobody knows now where aboriginal land claims will end. This provision seems to say that the aboriginal self-government will not concede new land claim rights. But "except as provided for in self-government agreements." takes back what the rest of the provision offers. We should not be agreeing to any self-government provisions, until the extent of land claims has been settled. Until the extent of land claims has been settled we cannot know how much of Canada and we are going to separate.
45.
Aboriginal self-government as a constitutional right, as opposed to native administration of reserves under national legislation, is a bad thing and should not be negotiated. But the "Commitment to Negotiate" confirms that there is no agreement on aboriginal self-government, only an intention to continue constitutional negotiations indefinitely in a context in which as much as possible has been done to limit the ability of the national and provincial governments to protect Canada against the consequences of aboriginal separatism.
46.
Even the process of negotiation has not been agreed to and we are just being asked to say "Yes" to its going on and on as long as the aboriginal politicians and the national and provincial politicians bored with carrying out their real responsibilities see fit.
The "Provision for Non-Ethnic Governments" in seeking to be reassuring grants that non-aboriginal peoples living in aboriginal territories may be without rights. Self-government agreements "may provide for self-government institutions which are open to the participation of all" but they do not have to. Most will not.
"The Non-derogation Clause" means that the negotiations may be meaningless anyway and the native politicians and the courts can work out the meaning of self-government between themselves leaving the Canadian people and their elected representatives out of it.
47.
This section confirms that aboriginal peoples are going to be taken outside the laws of Canada and it provinces. The saving provision in the second paragraph demanding consistency with what is "essential to the preservation of peace, order and good government in Canada" is completely undermined by the last sentence, which confirms that the aboriginal peoples are to be exempt from Canada's laws.
48.
This section only confuses the existing law and constitutional provision and invites the aboriginal peoples to insist on their own self-serving interpretations of treaties and agreements.
49.
That all aboriginal people have access to the aboriginal rights that pertain to them is on the face of it saying something that does not need saying. What it does raise is the fact that there is no definition of aboriginal peoples in the Consensus Report or the Constitution Act. So we are being asked that undefined special rights be guaranteed to an undefined class of Canadians. By a process of self-selection Canadians will be chosen to exploit and be subject to the mess of rights and privileges that these proposals may lead to.
50.
The aboriginal governments are to be the most powerful within their territories of any in Canada, but they will not raise the money the programmes to fill their jurisdictions will require from their own people. The national and provincial governments are to raises taxes from the non-aboriginal peoples and hand the money over to the aboriginal governments with no control over how it is spent. The aboriginal governments are to be entitled to demand whatever they want to provide first class services, or at least to maintain high levels of government expenditure in their territories, without any responsibility to see that it is well spent or to make their territories self-supporting. It is accepted that the aboriginal territories will be self-governing but never self-supporting.
51.
The aboriginal governments are to be encouraged to play favourites among their peoples in the name of affirmative action and to favour those amongst their people who put their own culture above Canada's and their common humanity.
52.
Though granting aboriginal separation, the Consensus Report does not know how to protect aboriginal women from their sovereign governments and leaves it to further negotiation asking the Canadian people again to sign a blank page.
53.
The constitutional conferences are to go on into the next century.
54.
Aboriginal rights used to belong to legally defined status Indians. Now they are to be extended to an undefined, indefinitely larger group, which has mysteriously grown by hundreds of thousands in recent years as the material advantages of aboriginality have appeared.
55.
The Métis Settlements General Council's ownership of land should be the same as that of any other Canadian's or Canadian institution's. It should not be a matter for constitutional protection.
56.
There is no Métis Nation and never was. But they are to get all the privileges of the aboriginal peoples. Power without responsibility in self-government, the right to money raised from Canadian taxpayers to spend on themselves as they see fit.
57.
The extent of the changes proposed now and the uncertainty of their meaning requires that amending the constitution should become easier so that when the impracticality and injustice of much of what has been agreed to now is realised changes can be made without the protracted and destructive negotiations of recent years. But having scribbled out the Consensus Report in a couple of weeks of haggling it is to be written in stone, unchangeable except by unanimous consent in all the most important respects. This will either mean that we are stuck with the mess made in Charlottetown until the country dies from it or that we will have no end of constitutional negotiation.
58.
The national government is to be free again to create new provinces, in name. But the constitutional reality of provinces with their full powers under the rewritten constitution is to be subject to the veto of any existing province. If the territories are made provinces they will still have only one senator each.
59.
This section provides that provinces can decide individually how much of Canada they want and take money rather than participating in national programmes.
60.
Having granted indefinite separation to aboriginal peoples, to be paid for by the rest of Canada, we are to agree that any changes to the arrangement, which will largely be worked out by the courts, will be subject to aboriginal vetoes. We had better know what we are getting into, as we are not going to be allowed to get out of it.
The Consensus Report ends by listing several important issues on which the negotiators are resolved to go on negotiating if they get a "Yes". "Yes" means constitutional negotiations for ever.
ENTRENCHING DISUNITY
Canadians have been governed under a largely unchanged constitution since 1867, with about as much success as humans can hope for from government. Many millions of dollars are being spent by our government in 1992 asking us to celebrate 125 years under this constitution. Confederation was an historic innovation, but the structure of responsible parliamentary government that it carried on is a necessary element in Canada's identity. Canada exists because it rejected American constitutional innovations. Responsible government was explicitly formulated in Canada in the 1840's in an achievement that was historic for the whole British Empire.
Now our politicians are asking us to reject the constitution that has served us well for 125 years and largely to reject responsible parliamentary government in order to adopt parts of the American constitution. In place of the genuine compromise of 1867, in which the ambition of creating a new transcontinental nation was married with the need to protect the interests of the existing provinces, they are abandoning national government and granting sovereignty association to all the provinces, which are to act freely without regard for the nation or each other within largely increased jurisdictions. Canada's government will be primarily a tax collector for the provincial governments with little control over how the money it raises is spent. Even within the restricted powers left to it Canada's government will not be free to act but subject to provincial supervision in the Senate and obliged to negotiate most of what it does with the provincial premiers and submit it to the arbitration of a Supreme Court controlled by provincial politicians.
If the "Yes" wins, Canada will have the weakest government of any state claiming to be an independent country. The European Commission will have more power throughout Europe than Canada's government will have in Canada. The provincial premiers will have more power in each of their provinces than the President of France or the Chancellor of Germany have in their respective countries. The Consensus Report does not promote national unity. It entrenches disunity.
QUEBEC
We have been told since Meech Lake was negotiated that something had to be done for Quebec so that it would "sign the constitution" or "become part of the constitution". This is completely untrue. Quebec is "part of the constitution". No province signs the constitution. The government of Quebec in 1982 did not approve the changes made then, but it was a government of the Parti Québecois, founded to break up Canada, and would not have approved of anything acceptable to the rest of Canada. Quebec's approval was not legally necessary. Politically and morally it was not required when the changes made to the constitution were being proposed by a government of Canada led by Quebeckers and with the solid support of 90% of the members of parliament from Quebec.
There is only one thing that could give any sense to the desire to have Quebec "part of the constitution". It is that Quebec should explicitly and irrevocably renounce its claim to the right of self-determination. This is not going to happen. Québecois politicians are unanimous that Quebec has a right of self-determination and would still have it if all its constitutional demands were met. Robert Bourassa has confirmed this. He says a "Yes" involves no risk. Quebec will keep all its options. In trying to accommodate Quebec the rest of Canada is always offering something for nothing.
If the "Yes" wins and the changes proposed to be made to the constitution come into effect next July 1, Quebec will be saying that Quebec is entitled to walk out of Canada on July 2. Mr. Bourassa and his supporters will say that it is not likely to. But there will be no binding commitment to Canada to match the binding commitment to Quebec in the Consensus Report.
Though the whole purpose of the constitutional negotiations was supposed to be to accommodate Quebec, most of the Consensus Report has nothing specifically to do with and is not wanted by Quebec and so makes accommodating Quebec more difficult. While the other nine provincial governments and Ottawa were amusing themselves with Senate reform, a social charter and aboriginal self-government, it was ironically only in Quebec that the alarm bells began to ring as the impractical mess that the rest of Canada was devising began to appear. Quebec will only accept this mess if it believes that a strong government in Quebec and a strong national leadership can get what it wants out of Canada, however badly governed the rest of Canada must be.
The effort to accommodate Quebec in the Consensus Report has been done completely the wrong way. Quebec's essential demand has been for largely increased powers for its government. As a pragmatic concession to Quebec some compromise with this demand may be possible. But the Consensus Report concedes no powers to Quebec that it does not concede to the other nine provinces. The effort to accommodate Quebec becomes a comprehensive dismantlement of the national government. Under the pretence of denying special status to Quebec the other nine provincial governments help themselves to the powers of the national government and generalise Quebec separatism.
But after all Quebec is given special status, in the distinct society clause, in its guaranteed seats in the House of Commons, in the control over language and culture through its senators. A concession of special powers to the Quebec government would have left it free in some measure to follow its own course. The special powers of Quebec in the national government will be exploited as levers by Quebec to get in practice the powers that it is not formally granted in the Consensus Report. The result will be continuing tension and ill-will.
It is a mistake to believe that there is a constitutional formula that will put an end to the tensions between English and French that Canada has lived with and managed for 200 years. Those tensions can and must be managed for another 200 years. But the Consensus Report would make the job more difficult and contentious and by its weakening of Canada erode the will to make the effort. And when, after its application it was seen that the disputes that were supposed to be ended were continuing more distractingly than ever, there would be a growth of ill-will on both sides that could lead finally to separation.
The rise and decline of separatist sentiment in Quebec is largely independent of constitutional politics. The surge of support for separatism in 1990 and 1991 was only partly a result of the failure of Meech Lake. It fell off in 1992 quite independently of the specific offers to Quebec in the constitutional negotiations. So that Mr. Bourassa by August believed that he could persuade Quebec to accept something far less than what it had demanded in the Allaire Report or the Belanger-Campeau Commission. So changeable is Quebec's mood that today Quebec can be content with the constitutional status quo so long as the defeat of the Consensus Report is not seen as a "rejection of Quebec", as the politicians in 1990 contrived to make the failure of Meech Lake appear. But if the "Yes" wins Robert Bourassa has proclaimed that Quebec will go on demanding all that it has ever claimed using the levers given it in the Consensus Report to extract what it wants in future negotiations.
NOT A CANADIAN COMPROMISE
We are asked to say "Yes" to the Consensus Report because it is a compromise and compromise is essentially Canadian. But the mess of the Consensus Report does not result from compromise. It results from trying to promise something to everyone who grinds his axe loudly. What is called compromise in the Consensus Report is not finding the middle ground between opposing positions. Usually it substitutes ambiguity for compromise. In other places it trades off one unacceptable minority demand for another.
Most Canadians do not want to give Quebec special status. Most Canadians would prefer to abolish the Senate. But the politicians have agreed over the heads of the people that Quebec can have what it should not have if a few Western politicians get something like the Triple E Senate we do not want. We are then asked to say "Yes" under the threat that, if we do not, the politicians will break up the country.
Despite the relentless propaganda paid for with unlimited taxpayers money and the lies and scares of the "Yes" campaign, the polls show a healthy resistance by Canadians across the country. A "No" vote will not be a rejection of Quebec or Canada. A "No" vote will be an affirmation of our faith in Confederation as it was wisely formed 125 years ago and in the Canada that has prospered in freedom under the constitution adopted then. We will vote "No" for Canada's sake.
