Read Some Day the Sun Will Shine and Have Not Will Be No More Online
Authors: Brian Peckford
The meeting seemed to be heading for a stalemate, and it was then that I began
writing down a few ideas on where I thought common ground was possible: namely
the prime minister’s seeming flexibility on examining various options for an
Amending Formula and the provinces’ seeming flexibility on considering a
charter, although the elements of that were still in flux. I was hoping to
present this to the premiers’ Wednesday afternoon meeting that had been
tentatively arranged. The meeting never happened, and hence this proposal never
got tabled. I have a copy of that proposal. It was proposing the
following:
Acceptance of the eight provinces accord.
Acceptance of a full Charter with two amendments:
Minority Language Education rights to be included, but those
provinces who opted out would have to hold a binding
referendum.
An amendment to Mobility rights to permit a province to pursue
affirmative action programs for job creation as long as that
Province’s unemployment rate was below the national average.
At the end of that morning’s session, the prime minister was more or less
resigned to a failure (or was this a tactical move on his part?) and mused about
just doing patriation and over the next two years having a double referendum:
one on the Amending Formula and one on the charter.
Early that evening the Newfoundland delegation—minister of Justice,
Gerald Ottenheimer; deputy minister of Intergovernmental
Affairs, Cyril Abery; deputy minister of Justice, Ronald Penney; and special
adviser to the premier, Cabot Martin—worked on a proposal and consulted with me
on it. A proposal (I have a copy) was prepared building on the early ideas in
the proposal that was never presented, and with my approval Penney and Abery
went to the Château Laurier (fourth floor) to discuss the document with
officials from Alberta, Saskatchewan, and British Columbia. Soon Premier
Buchanan of Nova Scotia, Premier MacLean of Prince Edward Island, and Premier
Blakeney of Saskatchewan attended that gathering. Meanwhile, I had spoken on the
phone early that evening to Premiers Bennett, MacLean, Blakeney, and
Buchanan.
Mr. Abery called me at the Four Seasons Hotel mid-evening to report that he
thought some progress was being made, that he was getting a generally favourable
reaction to the proposal, and that I should be ready to come to the Château
later if this positive reaction continued. Meanwhile, Minister Ottenheimer
contacted Minister McMurtry of Ontario and informed him of what was happening.
He seemed pleased and said he would ensure that Premier Davis was informed that
evening. Around midnight, Mr. Abery called again, saying that good progress was
being made and he thought I should join the group to further advance the
proposal.
I hailed a cab at the Four Seasons and went to the Château Laurier to join the
group. Three premiers (Blakeney, Buchanan, and MacLean) were there and some of
their officials/ministers, and officials of British Columbia (Smith representing
Premier Bennett), Alberta (Meekison, representing Premier Lougheed), and, of
course, the Newfoundland deputy ministers. Minister Romanow of Saskatchewan
joined much later. Ministers Howe and Morris were there from Nova Scotia and
Minister Carver of Prince Edward Island, all three having been there most of the
evening. A lot of discussion ensued.
I underscored that we were there to fashion a bargain, not organize a defeat. A
lot of discussion centred on the charter, the notwithstanding clause, Minority
Language Education rights, and the Mobility rights. At the end there was
agreement on the elements not much different than what was in our proposal. The
final proposal was
prepared and typed by our delegation,
after having been approved by those present, and was to be presented at
breakfast of the eight provinces that morning, seven hours later. Minister
Carver of PEI, under instructions from the group, contacted Minister Mercier of
Manitoba to ensure that the province would have the information before breakfast
the next morning. Premier Lyon had to return to his province to campaign, but
Minister Mercier was in touch with him.
Contrary to a lot of commentary over the last thirty years, there were four
premiers present that night, and representatives of two more were present,
British Columbia and Alberta, and two other provinces not present were contacted
that night, Manitoba and Ontario (who were not part of the eight-province
group). So eight provinces knew about what was happening that night. Quebec was
informed at breakfast that morning of November 5, and New Brunswick was informed
just before the proposal was presented to the conference later that morning. At
breakfast, six of the provinces (Quebec said it could not support the proposal
and Premier Lévesque was unhappy about our proceeding that night and abruptly
left the breakfast) supported Newfoundland in its desire to present the proposal
at the conference that morning.
November 12, 1981
Constitutional Conference
Sequence of Events
November 4–5, 1981
This document was prepared by Deputy Minister Cyril Abery, Intergovernmental
Affairs Secretariat, and Deputy Minister Ron Penney, Department of Justice.
By the afternoon of November 4, Premier Peckford was convinced that
a consensus was still possible, based on
Patriation, the April Accord, and the Charter of Rights. There
was no opportunity to present this at the time although he did have
a Draft Compromise ready to table (attached).
The afternoon meeting ended in disarray at about 6: 00 p.m., but
with agreement to meet the next morning at 9: 00 a.m.
Premier Peckford and Blakeney agreed that officials from
Newfoundland, Saskatchewan, and Alberta should meet Wednesday night
to see if a common position could be attained. This meeting was set
for 9: 30 p.m. in room 481 at the Château Laurier.
The Newfoundland Delegation returned to the hotel (Four Seasons)
and it was agreed that we should draft up a proposal to bring to
the 9: 30 meeting with Saskatchewan and Alberta.
At about 7: 30 p.m., Ron Penney and the undersigned went to Ron
Penney’s room and jointly prepared a proposal (attached). This was
then reviewed with the premier, Mr. Ottenheimer, and Cabot Martin,
and a couple of changes were made as noted on the original.
The premier’s view was that he intended to table this as a proposal
the next morning but was willing to make changes to get other
provinces onside, provided that the main elements remained and the
overall scope was not changed.
This was then typed up and Ron and I went over to the Château
Laurier at 9: 30 p.m., where we were met by Howard Leeson of
Saskatchewan. Shortly thereafter Peter Meekison of Alberta and Mel
Smith of British Columbia arrived.
We distributed the proposal and indicated that the premier was
going to present this to the conference the next morning although he
was prepared to make some modifications (attached).
Saskatchewan, Alberta, and British Columbia
indicated that the draft was generally acceptable with some
modifications. There was a view that a more detailed proposal should
be made, but we argued strongly that it should be kept very
straightforward and clear. This was finally agreed to by the other
provinces.
The changes suggested were as follows:
That the federal government would never accept the
delegation clause and that they should be deleted
(Saskatchewan and Alberta). This was agreed.
That the
non obstante
clause should cover
fundamental freedoms as well as legal rights and
equality rights. Alberta was very firm on this point,
both because of their position and also because they
believed it was necessary to have something to bargain
with if necessary. This was agreed upon.
That the clause on Minority Language Education rights
should be made more positive by stating that the
Provinces agreeing would agree up front with provision
for other provinces to join later but not be forced to
have a referendum (Alberta). This was also agreed.
That the parties relating to aboriginal rights should
be deleted because it was not clear what they meant and
that the native groups were not satisfied with the
clauses anyway (British Columbia stressed this matter).
This was also agreed.
These changes were then incorporated into the second draft,
following discussion with the premier by telephone (attached).
It was agreed that the premiers should be called together and that
Nova Scotia and PEI should be included. Premiers Lougheed and
Bennett were not available.
A meeting was convened at about midnight between
Premier Blakeney, Premier Peckford, Premier Buchanan, Premier
MacLean, Peter Meekison representing Premier Lougheed, and Mel Smith
representing Premier Bennett. Also involved were the undersigned,
Howard Leeson, Harry Howe of Nova Scotia, and Edmund Morris of Nova
Scotia. Roy Romanow of Saskatchewan also joined in towards the
end.
The second draft was agreed to by the six provinces. Mr.
Ottenheimer had had discussions during the night with Roy McMurtry
of Ontario and it was felt that it would probably be acceptable to
Ontario. This view was shared by most of the provinces at the
meeting.
It was unclear whether Manitoba, New Brunswick, or Quebec would
agree.
It was agreed that the Group of Eight premiers would have a meeting
at 7: 45 a.m. to review this draft again.
The meeting adjourned at about 1: 30 a.m.
The next morning the premier presented the paper to the prime
minister. All provinces, except Quebec, agreed.
The prime minister made several suggestions, three of which were
accepted:
A five (5) year sunset clause for any legislation
enacted using the “notwithstanding” clause.
The deletion of the second sentence in the proposal
regarding Minority Language Education rights. This was
after the Provinces would not agree to his suggestion
that it not be proclaimed until all had agreed.
The inclusion of a First Ministers
Conference regarding native rights.
New Brunswick suggested that the change regarding Mobility rights
be made positive by permitting affirmative action programs when a
province’s employment rate was below the national average (rather
than unemployment rate above). This was agreed.
The changes were incorporated in the text and the final version was
signed by the nine provinces and the federal government in the room
about 1: 00 p.m. (5th Floor of the Conference Centre). The French
version was subsequently signed in the main Conference Hall at
about 2: 00 p.m.
Cyril Abery
Deputy Minister
Intergovernmental Affairs Secretariat
Ron Penney
Deputy Minister
Department of Justice
Draft Compromise
The Newfoundland Delegation and I prepared this document, but it was never
presented. The proposed meeting of some provinces was to be the afternoon of
November 4, but it never happened.
Wednesday Afternoon
November 4, 1981
Acceptance of the eight provinces’ Accord.
Acceptance of the full Charter with two amendments.
(A) Those provinces which agree with minority language education
agree now. Any province which disagrees with this can opt out but
must hold a referendum on the issue in that province. Referendum
decision will bind that province.
(B) An amendment to Mobility rights to permit a province to pursue
affirmative action programs for job creation for its citizens until
that province’s unemployment rate was no greater than the national
average.
This is the actual document presented to the provinces the night of November 4.
The date shows November 5 because this is what we had intended to present the
next day, not thinking that we would get agreement the night of the 4th with
some amendments.
Constitutional Proposal
Submitted by the Government of Newfoundland
At the First Ministers
Conference
Ottawa, November 5, 1981
The Government of Newfoundland, in an effort to reach an acceptable consensus
on the Constitutional issue which meets the concerns of the federal government
and a substantial number of provinces, submits the following proposal:
Patriation
Amending Formula
Acceptance of the April Accord
Amending Formula with the deletion of Section 3, which
provides for fiscal compensation to a province which
opts out of a constitutional amendment.
This change would mean that a Province opting out would
have to bear the financial consequences of its
act.
Charter of Rights and Freedoms
The entrenchment of the full Charter of Rights and
Freedoms now before Parliament with the following
changes:
With respect to Mobility rights, the
inclusion of the right of a province to undertake
affirmative action programs for socially and
economically disadvantaged individuals as long as
a province’s unemployment rate was above the
national average.
Non obstante
clause covering sections
dealing with legal rights and equality rights.
This would make it possible for Parliament or a
Legislature to override these provisions of the
Charter in certain specified circumstances.
With respect to Minority Language Educational
rights a procedure would be adopted whereby the
section would come into force in any province
whose legislature adopted the proposal. If within
two years a legislature had not adopted the
section a binding referendum would be held in that
province to determine the issue. The Newfoundland
Government would introduce in the House of
Assembly the necessary resolution to adopt these
provisions of the Charter with respect to
Newfoundland.
The provisions of the Act now before Parliament
relating to equalization and regional disparities, the rights of the
aboriginal peoples, non-renewable natural resources, forestry
resources, and electrical energy would be included.