Thank you, Mr. Speaker. If I could ask the Government Leader, in her capacity of Minister of Energy, Mines and Petroleum Resources, what is the status of the Northern Accord, of the benefits agreement, as a result of the Gwich'in Final Agreement?
Debates of Sept. 16th, 1992
Topics
Question O797-12(2): Status Of Northern Accord
Item 5: Oral Questions
Page 953
Richard Nerysoo Mackenzie Delta
Question O797-12(2): Status Of Northern Accord
Item 5: Oral Questions
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The Speaker Michael Ballantyne
Ms. Cournoyea.
Return To Question O797-12(2): Status Of Northern Accord
Question O797-12(2): Status Of Northern Accord
Item 5: Oral Questions
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Nellie Cournoyea Nunakput
Mr. Speaker, I think that it is always unfortunate to have to report that the progress that we want to make, is not forthcoming. At this point in time, the Northern Accord discussions are at a standstill, I realize that, with the Gwich'in and their claim, that we had committed to move as extensively and as quickly as possible, so that they could build upon their claim.
Up to this time, in terms of the benefits agreement, that area is not of concern to the federal government. The areas that are holding up the accord are the ones of a financial nature. I feel that it is not to our benefit at this time to sign such a document, because even though we could move ahead and accept the fact that the funding that is required will not be there, it will not be favourable to any group that expects us to help and to enhance the agreement they have in terms of those northern benefits.
So, right now, it is unfortunate but I would have to report to the honourable Member that, right at this moment, we are at a standstill. In the talks in the constitutional area, I brought the issue up to the Prime Minister on a number of occasions, that we are stalemated at this time, and it would be appropriate that on a number of issues including the Northern Accord, and the contents of the Northern Accord that we incorporate that at the Prime Minister's level, along with three or four issues that are outstanding at this time. Thank you.
Return To Question O797-12(2): Status Of Northern Accord
Question O797-12(2): Status Of Northern Accord
Item 5: Oral Questions
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The Speaker Michael Ballantyne
Time allotted for question period has expired. Item 6, written questions. Item 7, returns to written questions. Item 8, replies to opening address. Item 9, replies to budget address. Item 10, petitions. We will take a short recess at this time.
---SHORT RECESS
I call the Assembly back to order. We are on Item 11, reports of standing and special committees. Mr. Kakfwi.
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
Page 954
Stephen Kakfwi Sahtu
Mr. Speaker. I am very proud, on behalf of the Special Committee on Constitutional Reform, to present this report today on the "Multilateral Meetings on the Constitution and First Ministers'-Aboriginal Leaders' Conferences on the Constitution." This report will outline the events leading to what has become known as the "Charlottetown Agreement".
Introduction
Mr. Speaker, on June 16, 1992 the special committee tabled report 10-12(2) respecting the Multilateral Meetings on the Constitution which, at the time, had failed to produce a "best efforts" constitutional reform package for further consideration by First Ministers and aboriginal leaders.
Despite these circumstances, there was general agreement among all participants that the Multilateral Meetings on the Constitution process have achieved substantial progress on a number of issues. This includes recognition of the inherent right to aboriginal self-government; a return to pre-1982 arrangements for the creation of new provinces; recognition of Quebec as a distinct society; division of powers between the federal and provincial governments; and, the Canadian social and economic union.
Senate reform was the major outstanding issue where agreement was not reached by the participants.
After a two week break, the Prime Minister met with Premiers and aboriginal leaders on June 28 and 29 in Ottawa, to review options for continuing the process. Premiers, aboriginal leaders and constitutional Minister Clark met in Toronto on July 3, and another formal negotiating round was convened in Ottawa on July 6 and 7.
The product, which is referred to as the Pearson Accord, was endorsed by all participants except the Government of Quebec, which was not present at negotiations, and the Prime Minister, felt that some elements of the package, such as an equal Senate, would not be acceptable to Quebec.
Following meetings with his provincial and territorial counterparts, including Premier Bourassa, and aboriginal leaders on August 4 and 10, the Prime Minister convened a formal First Ministers'-Aboriginal Leaders' Conference in Ottawa from August 18 to 22.
With the Government of Quebec formally present at the negotiating table, a provisional agreement was announced on August 22, subject to yet another First Ministers' Constitutional Conference in Charlottetown on August 27 and 28, to reconfirm decisions and discuss the issue of ratification by national and/or provincial referenda.
Further revisions were made to the reform package at, and following the Charlottetown conference. A final version entitled Consensus Report on the Constitution was formally released to the public on September 3, 1992. It contains recommendations for amendments to the Constitution, and the objectives of a number of political accords.
The accords will be required to address non-constitutional matters or issues where agreement on a constitutional amendment could not be reached through negotiation. The political accords do not have the same enforceable status as the constitutional amendments. The Consensus Report is attached in appendix one.
In total, First Ministers, Ministers, aboriginal leaders and their delegations met in eight different Canadian cities from March 12, when the process began, to August 28, when it was concluded in Charlottetown. The records show that 36 days were formally devoted to the constitutional negotiation process.
However, this figure in no way represents the total amount of time devoted to this initiative by all delegations, nor does it reflect the approach to negotiations which involved simultaneous meetings, involving four working groups of officials, and taking place at the same time as separate sessions of ministerial and aboriginal leaders. The Consensus Report provides more detail on the meeting schedule for the last six months.
During the early stages of the process, the Northwest Territories' delegation normally consisted of the chairman and the officials of the Department of Justice, Finance, Intergovernmental and Aboriginal Affairs. The Premier joined the delegation for talks by First Ministers and aboriginal leaders in July and August. Special committee Members participated in the last four sessions, and most of the First Ministers' - Aboriginal Leaders' Meetings, assisting at the negotiating table, providing timely advice to the Premier, myself as chairman, and the government officials, contributing to decisions and key policy matters. The presence and effective participation of the premier, committee chairman, committee members, and support staff, at all the First Ministers'-Aboriginal Leaders' Meetings, are reflected throughout the reform package, recommendations noted, in this report.
The purposes of this special Committee report are to:
1. Review recommendations from the Consensus Report produced by the M.M.C. and First Ministers'-Aboriginal Leaders' processes, and so far as they relayed to the special committee's national constitutional reform objectives;
2. Identify the options for how the reform process could unfold in the coming months, including national and/or provincial referendum, and ratification of constitutional resolutions by federal or provincial governments, and aboriginal organizations; and
3. Offer conclusions and recommendations to guard the Legislative Assembly and the special committee on this matter in the coming months.
Mr. Speaker, this special committee's national constitutional reform objectives.
Special Committee's National Constitutional Reform Objectives
Throughout the M.M.C. process, and more recently, First Ministers' - Aboriginal Leaders' Constitutional Conferences, the special committee has been guided by its April 1, 1992 interim report, which recommended that the Northwest Territories' participation should focus on the following issues:
1. Territorial participation, public and private meetings, and conferences on constitutional, economic, and aboriginal matters;
2. Strive for constitutional recognition of the inherent right to aboriginal self-government;
3. Improve on the effects of the constitutional amendment formula and provincial status for the territories;
4. Work for the positive implications for the territories of the Canadian economic union proposals, and mechanisms for the decentralization of the federation; and
5. Seek positive constitutional amendments relating to the institution, such as the Senate, and the Supreme Court of Canada.
The following provides an overview of the Charlottetown Consensus Report. Recommendations in so far as they reflect the objectives recommended in the Special Committees April 1, 1992, interim report.
Territorial Participation In Constitutional, Economic And Aboriginal Meetings
Mr. Speaker, with respect to territorial participation, in future constitutional economic and aboriginal meetings, the consensus meetings recommend the following:
1. The constitution should require the Prime Minister to convene a First Ministers' Conference at least once a year. A political accord should specify that territorial governments will be invited to participate.
2. Territorial governments should also be invited to the series of four constitutional conferences which will be convened on aboriginal issues.
3. Territorial governments should be party to all agreements which commit governments to negotiate self-government agreements and processes to clarify and implement treaties. In addition, they should be party to the transition/implementation process and financing accords which would accompany the constitutional amendments on these matters.
The Consensus Report also recommends that separate First Ministers' Conferences be convened in the future, to further define the Canadian economic union and common market provisions of the Constitution and establish a framework to guide the use of federal spending power in all areas of exclusive provincial jurisdiction. Given the implications of these issues as outlined later in this report, territorial participation at the Conferences is essential. Participation of territorial governments at the First Ministers' Conferences will be clarified through the political accord instrument noted above.
Furthermore, and depending upon the circumstances, the Consensus Report recommends that references to territories, territorial legislature and territorial governments are required in sections of the Constitution which deal with governments' responsibilities for the social and economic union of Canada and intergovernmental agreement respecting the division of power.
While these references do not constitute an increase in the constitutional authority or status of territories and their current institutions of government, they do recognize the role which northern governments play in federal/provincial relations and executive federalism.
Mr. Speaker, I would now like to ask now Mr. Gargan, to continue with the report.
Constitutional Recognition Of The Inherent Right to Aboriginal Self-Government
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
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Samuel Gargan Deh Cho
Thank you, Mr. Speaker. Early on in the F.M.C. process, federal, provincial and territorial governments expressed their support for constitutional recognition of the inherent right to aboriginal self-government. In the months that followed, participants built on this principle and commitment, which the special committee considers as the most fundamental and far-reaching achievement of the constitutional reform process.
From a northern perspective, the Constitution will provide the Dene, Metis, and Inuvialuit the means to shape public government to reflect aboriginal objectives; pursue the development and establishment of their own institutions; or both.
Moreover, a third order of aboriginal government will be guaranteed in the north before new provinces are created. This is a significant achievement relative to southern Canada where aboriginal peoples will have to negotiate with provincial governments which have controlled the power and resources over the last 100 years.
The following identifies highlights of the aboriginal package in the Consensus Report:
Inherent Right To Aboriginal Self-Government
-Constitutional Recognition of the Inherent Right. The Constitution should be amended to recognize that the aboriginal peoples of Canada have the inherent right to self-government within Canada.
-Justiciability. The inherent right of self-government should be entrenched in the Constitution; however, the ability to enforce the right through the courts should be delayed for a five year period through constitutional language and a political accord.
-Application of Charter of Rights and Freedoms. The Canadian Charter of Rights and Freedoms should apply immediately to governments of aboriginal peoples, including the capacity to make use of the "not withstanding" clause. This means that aboriginal governments would have the constitutional authority to override constitutional rights and freedoms including the capacity to make laws to which the Charter will not apply.
-Recognition in the Canada clause. There should be a reference to aboriginal peoples in the Canada clause section of the Constitution. The recommended wording is: "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." - Description and application of inherent right to self-government. The Constitution should recognize that the exercise of the right to self-government includes the authority of the duly constituted legislative bodies of aboriginal peoples within the territorial limits of their jurisdiction or within the jurisdiction of their institutions. To safeguard and develop their language, cultural, economic, identities, institutions, traditions, and 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 values, and priorities, and ensure the integrity of their societies.
This provision recognizes the jurisdiction of off-reserve aboriginal self-government institutions. Other self-government revisions should provide for institutions which are open to the participation of all residents in the regions covered by a self-government agreement.
Method Of Exercising Of the Inherent Right
Mr. Speaker, the method of exercising their inherent right, is important. There should be a constitutional amendment by governments and the Indian, Inuit and Metis people to negotiate in good faith with the objective of concluding agreements, elaborating their relationship between aboriginal governments and other governments.
The negotiations would focus on the implementation of the right of self-government, including issues of jurisdiction, land and resources, and economic and fiscal relations.
Regarding the process of negotiations, the political accord should be developed to guide a process of self-government negotiations. All aboriginal people of Canada shall have equitable access to the process of negotiation.
Self-government negotiations shall take into consideration the different circumstances of the various aboriginal people. Self-government agreements could be set out in future treaties including land claims agreements or amendments to existing treaties, including land claims agreements.
Alternatively, self-government agreements may be made without pursuant land claims settlements at all. There should be an explicit statement in the constitution that commitments to negotiate, does not make the right to self-government contingent on negotiations, or in any way effect the justiciability of the right of self-government.
Regarding the legal transition, a constitutional provision should ensure that government's laws will continue to apply until they are displaced by laws passed by governments of aboriginal peoples pursuant to their authority.
Regarding treaties, the constitution should be amended as follows:
-treaties 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 the specific treaties were negotiated; and
-the federal government 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. Other governments should also be committed, to the extent that they have jurisdiction, to participation in the above treaty process when invited by the federal government, and aboriginal peoples or where their role is specified in a treaty.
Mr. Speaker, I would like to ask Mr. Bernhardt to continue with our report.
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
Page 956
The Speaker Michael Ballantyne
Mr. Bernhardt.
Issues Related To The Exercise Of The Inherent Right
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
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Ernie Bernhardt Kitikmeot
Mr. Speaker, on the issues related to the exercise of the inherent right. Regarding 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.
Regarding financing, matters relating to the financing of government of aboriginal peoples should be dealt with in a political accord. The accord should commit the government 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.
The accord would also commit other 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.
The issues of financing and its possible inclusion in the constitution should be on the agenda of the first First Ministers' Conferences on aboriginal constitutional matters.
Regarding affirmative action programs, the constitution should include a provision which authorizes governments of aboriginal peoples to undertake affirmative action programs for socially and economically disadvantaged individuals or groups and programs for the advancement of aboriginal languages and cultures.
Regarding gender equality, constitutional provisions which guarantee 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 First Ministers' Conference on aboriginal constitutional matters.
Regarding future aboriginal constitutional process, the Constitution should be amended to provide for four future First Ministers' Conference on aboriginal constitutional matters beginning no later than 1996, and following every two years thereafter.
Regarding section 91(24), for greater certainty, a new provision should be added to the Constitution Act 1867 to ensure that s.91(24) applies to all aboriginal peoples.
Regarding Metis in Alberta, section 91(24), the constitution should be amended to safeguard the legislative authority of the Government of Alberta for Metis and Metis settlement lands.
Regarding Metis Nation Accord, the federal government, the provinces of Ontario, Manitoba, Saskatchewan, Alberta, British Columbia and the Metis National Council have agreed to enter into a legally binding, justiciable and enforceable accord on Metis Nation issues.
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 the cost sharing arrangements relating to Metis institutions programs and services.
The accord will define the Metis for the purposes of the Metis Nation Accord, and commits governments to enumerate and register the Metis nation.
Outstanding Issues
Regarding outstanding issues, the status of the following outstanding items is not known at this time:
-aboriginal participation in intergovernmental agreements respecting the division of powers;
-aboriginal participation in annual First Ministers' Conferences; and
-mechanisms for aboriginal consent to constitutional amendments affecting their interests, including formal amending formula powers.
Mr. Speaker, I would now like to ask Mr. Lewis to continue with our report.
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
Page 957
The Speaker Michael Ballantyne
Mr. Lewis.
Effects Of The Constitutional Amending Formula On Creation Of New Provinces
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
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Brian Lewis Yellowknife Centre
Thank you, Mr. Speaker. Regarding the effects of the constitutional amending formula on creation of new provinces, throughout the M.M.C. and First Ministers aboriginal leaders' negotiations, the Northwest Territories position on the provincehood issue was consistent with that taken by previous governments and Legislative Assemblies. These were the arrangements prior to the patriation of the Constitution and its amending formula in 1982.
That is, the Constitution should be amended to remove references to the role which provincial governments currently have in approving the creation of new provinces and return the exclusive authority for this matter to Parliament.
As the last item of business in Ottawa on Saturday evening, August 22, First Ministers and aboriginal leaders reached agreement on a modified return to the pre-1982 arrangements for creation of new provinces. Under the terms of the agreement, the Constitution should be amended to provide for the following: new provinces may be created unilaterally by Parliament without existing provinces having a vote or a veto; any additional Senate or House of Commons seats for the new provinces will require unanimous approval from Parliament and the provinces; a new province will not automatically have a vote in amendments to the Constitution under the general "seven and 50 percent" amending formula and unanimity formula; unanimous consent from the provinces and Parliament will be required for a new province to exercise these amending formula powers; and before a new province is created, the Prime Minister must convene a First Ministers' Conference to review the implications of creating a new province, including the terms of its entry into Confederation. Parliament may take account of the interests and concerns of the provinces in the Act creating a new province.
There was also agreement that the Constitution should confirm that new provinces will automatically have other key constitutional powers including: the right to amend their own provincial constitutions, without Parliament's approval; the right to make bilateral or multilateral amendments, such as the adjustment of provincial boundaries, involving some but not all other provinces; the right to "opt out" of constitutional amendments which would take away from the legislative powers, proprietary rights, or other rights and privileges of the provincial legislature or government; and the right to compensation for any amendments which transfer provincial powers to Parliament.
On the related amending formula issue of extension of provincial boundaries into existing territories, the section of the Constitution dealing with this matter will be repealed. A new provision requiring the consent of the territory affected will be included in the Constitution.
Overall, with the exception of those amending formula proposals which were accepted by the First Ministers, the Meech Lake unanimity proposal is no longer an option, and the current amending formula provisions for the creation of new territories will be replaced by the new arrangement outlined above.
In historical terms, this means that new provinces in the north will probably enter Confederation on more generous terms than did Saskatchewan and Alberta for example, which did not have jurisdiction of natural resources and public lands until 25 years after they achieved provincehood.
Implications Of Common Market And Division Of Powers Proposals
Regarding the implications of common market and division of powers proposals and in particular, economic union and common market proposals. The proposal referred to as the common market clause is an amendment that would extend the application of Section 121 of the Constitution Act, 1867. This Section prohibits the imposition by provinces of tariffs and duties on goods coming from other provinces. Under the common market proposal, the prohibition would extend to the erection of trade barriers to the free movement of goods, services, capital and persons.
First Ministers could not agree on a common market clause when the issue was considered from August 18 to 22, and again in Charlottetown from August 27 to 28. The major problem was reaching a consensus on the number and range of exemptions which governments could put in place to restrict the flow of goods, services, capital and persons.
First Ministers decided to refer the issue to a future First Ministers' Conference, effectively eliminating this proposal from the current round of constitutional amendments.
Had any of the versions of the common market clause been agreed to, practices of the Government of the Northwest Territories, such as preferential purchasing and preferences in contract tendering contained in the Business Incentives Policy (B.I.P.) would have been unconstitutional. The Government would therefore have been forced to dismantle the B.I.P. by 1996 as proposed in one common market proposal.
Decentralization Of The Canadian Federation
Regarding the decentralization of the Canadian federation, division of powers. The Consensus Report recommends a number of constitutional amendments respecting the division of powers which are outlined below.
With respect to areas of exclusive provincial jurisdiction, the Constitution should be amended to confirm the six policy areas that will become the exclusive jurisdiction of provincial governments: forestry, mining, housing, municipal and urban affairs, tourism and recreation.
It should contain provisions which also allow provinces to require a complete or partial withdrawal of federal spending in these areas and also in the areas of culture, regional development, immigration and labour market development and training.
Such a withdrawal would be done through constitutionally entrenched intergovernmental agreements. The Consensus Report's recommendations also involve a commitment to negotiate constitutionally entrenched agreements on these matters.
The Constitution should also contain provisions which allow for bilateral agreements with provinces which want the federal government to maintain its spending in these areas of provincial jurisdiction.
Territories do not have constitutionally exclusive legislative jurisdiction in the way that the provinces have under Section 92 of the Constitution since the territorial legislative jurisdiction is, technically speaking, delegated by Parliament. Nonetheless this mechanism of constitutionally protected agreements will be available to the territories to ensure that they have the same protections as provinces which want to maintain a federal presence in these matters.
Regarding new federal cost shared programs, for new national federal cost shared programs, such as a possible national child care program or a new national income security program, the Constitution should be amended to allow the provinces the option of not participating in these programs. It should also provide for compensation to these provinces if they carry on a program that is compatible with the national program's objectives.
This opting out provision would be limited to programs falling in an area of exclusive provincial jurisdiction. Provinces that opt out would be required to carry on a program or initiative that is compatible with national objectives.
Regarding the federal framework on the exercise of federal spending power, First Ministers are also committed to establish a framework that will govern agreements on the exercise of the federal spending power in all other areas of exclusive provincial jurisdiction.
These agreements should contribute to the pursuit of national objectives; reduce overlap and duplication, and; not distort provincial priorities. They would also be constitutionally protected.
Territorial participation in the establishment of this framework is essential in order that northern interests are reflected in the general terms for negotiating bilateral "safeguard" agreements respecting federal expenditures in areas of provincial and territorial jurisdiction.
Constitutional Amendments Relating To The Supreme Court And A Reformed Senate
Regarding the constitutional amendments relating to the Supreme Court and a reformed Senate, and in particular, the Supreme Court of Canada, the Consensus Report recommends that the Constitution of Canada should be amended to provide for territorial nominations to fill Supreme Court vacancies. This amendment readdresses the failure of the Meech Lake Accord to include territorial participation in the proposed nomination process for appointments to the court. As well, the provinces and the territories have agreed to develop a reasonable process consulting representatives of the aboriginal peoples of Canada in the preparation of lists of candidates to fill vacancies on the court.
Finally, the federal government has agreed to examine, in consultation with aboriginal groups, the proposal that an aboriginal council of elders be entitled to make submissions to the Supreme Court of Canada when the court considers aboriginal issues.
Regarding senate reform, the details of the Senate reform package are contained in the Consensus Report which is attached to this document. For the purposes of this special committee report, the following provides an overview of the implication of the Senate reform package for the territories and aboriginal peoples.
Regarding senate composition, there should initially be a 62 seat elected equal Senate composed of six seats from each province and one from each existing territory.
In regards to the electoral system for the reformed Senate, while the system for operating the Senate elections would be under federal jurisdiction, federal legislation would allow provinces and territories to elect senators indirectly. This approach would allow Quebec, for example, to appoint their senators from elected Members of its national assembly.
Regarding senate representation for a Nunavut territory, the Consensus Report does not specifically make reference to a Senate seat for a Nunavut territory. The territorial government is pressing to ensure that a new territory would be entitled to the same senate representation as existing territories. This will avoid the possibility that a new territory may require unanimous consent from Parliament, and all the provinces before it receives Senate representation.
Regarding aboriginal representation in a reformed Senate, the issue of aboriginal senate representation was not resolved by First Ministers and aboriginal leaders, however, it is understood that the terms of the Consensus Report on this matter continue to be in effect. These terms include aboriginal representation, in addition to seats allocated for the provinces and territories, and concluding an agreement on this issue by the fall of 1992, to ensure that resolutions in support of aboriginal representation will be approved under the general amending formula as opposed to unanimity voting provisions.
Regarding territorial representation in the House of Commons, during the multilateral process, participants examined a number of representation by population models, which would have reduced House of Commons representation of smaller jurisdictions in exchange for equal representation in the Senate. Under one model, Yukon would have lost its Commons seat and the Northwest Territories would have been reduced to one Member of Parliament. A strict application of the representation by population principle in the Commons has been relaxed somewhat in the Consensus Report. Smaller jurisdictions will be assured of their existing number of Commons seats. Provisions allocating two House of Commons seats to the Northwest Territories and one for the Yukon will be retained.
Regarding representation for new provinces in the reformed Senate, an increase in the number of Senate seats for a territory when it becomes a province will be subject to the approval of Parliament and all the provincial legislatures. Territories that become provinces will not lose representation in the Senate and House of Commons.
Regarding Senate powers in relation to supply bills, funding which the Government of the Northwest Territories receives from the federal government is voted on in supply bills in both the House of Commons and the Senate. The transfer payments for the north are contained in the federal budget under the main estimates for the Department of Indian Affairs and Northern Development. Under the new regime, the Senate would exercise a suspensive veto over supply bills for 30 calendar days, but the House of Commons could override this veto by repassing the bill.
Regarding the Senate powers in relation to ordinary legislation, the term ordinary legislation is not the most appropriate way to describe this category of bills which will be considered by the reformed Senate. For example, aboriginal claims settlement legislation, and a bill to create a new province would be included in this category.
The Consensus Report states that the Senate would not have an absolute veto to reject this type of legislation. Rather, by a simple majority of the Senate in opposition to the legislation, a joint sitting of the House of Commons and the Senate would have to be convened to debate and vote on the legislation.
Assuming the governing party has a majority in the Commons and sufficient Senate representation opposition votes in the Upper Chamber, the legislation would pass.
It is also important to note that the Senate will have the capacity to initiate bills, except for money bills.
Mr. Speaker, I would now ask Mr. Kakfwi to complete the Report of the Special Committee.
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
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The Speaker Michael Ballantyne
Mr. Kakfwi.
Future Scenarios For Constitutional Reform Process
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
September 15th, 1992
Page 959
Stephen Kakfwi Sahtu
Mr. Speaker, the Charlottetown Conference also provided First Ministers and aboriginal leaders with the opportunity to discuss proposals for ratification of the constitutional reform package and related issues, such as completion of legal texts, which must be concluded in advance of ratification.
In the three week period which followed the Charlottetown Conference, multilateral meetings of officials from governments and aboriginal organizations were held to confirm the approach which would be taken on both matters. The following provides a summary of decisions and progress made to date.
On preparation and approval of legal texts, during the week of September 7 to 11 officials considered drafts of the legal text, which translate the recommendations of the Consensus Report into the wording that would appear in the constitution following formal ratification by provincial legislative assemblies and Parliament.
National And Provincial Referenda On The Constitutional Package
The legal text is crucial to all participants in the reform process because it must accurately reflect the substance of decisions made during the multilateral conferences and First Ministers and aboriginal leaders negotiations. The legal text, assuming it is complete and available, must also stand up to the scrutiny, which the constitutional reform package will receive from both proponents and opponents in the period leading up to the national referendum on October 26 and eventually, formal ratification by provincial legislatures and Parliament.
On national and provincial referenda on the constitutional package, following the failure of the Meech Lake Accord in June 1990, the Quebec National Assembly passed legislation which would require a provincial referendum on Quebec's political and constitutional future in Canada by October 26, 1992. During 1991, Alberta and British Columbia also passed legislation which would require a provincial referendum prior to formal consideration of a constitutional amendment resolution in their legislative assemblies.
On June 23, 1992, assent was given to a federal Act to provide for referendums on the Constitution of Canada. At the time, the federal government maintained that its preference was not to use the referendum instrument, which would be non-binding, to gauge public opinion on proposals for constitutional reform. Rather, it would only be activated if multilateral negotiations failed to reach a consensus which all participants could support.
While other provinces, including Saskatchewan and Newfoundland, gave consideration to provincial referenda on constitutional reform proposals, the general view was that they were to be avoided because of the potential for creating even further divisions within some provinces and between provinces or regions. The worst case scenario of how to deal with a package, which was rejected by some or all of the provinces and/or regions, also contributed to the uncertainty about the effectiveness of national and provincial referenda.
However, circumstances began to change when a consensus was reached in Ottawa on August 22, following the First Ministers' - Aboriginal Leaders' Constitutional Conference in Charlottetown. On September 3, the Prime Minister announced that the federal government would be proceeding with a national referendum on the constitutional package on October 26.
The Prime Minister's announcement came one day after Premier Bourassa stated his intention to proceed with an October 26 Quebec referendum on the constitutional reform package. The Government of Alberta has indicated that it is prepared to let the referendum be held under the auspices of federal as opposed to provincial legislation. British Columbia has not yet made a formal decision on whether to proceed with its own referendum or follow the example of Alberta.
In all other provinces and territories, the referendum will be conducted under the federal legislation. Preparation for the vote, which include all of the tasks normally associated with a federal election, are being coordinated by the Chief Electoral Office of Canada who must have everything in place by September 23. In addition, Elections Canada will conduct an extensive information campaign to inform Canadians of the referendum question and regulations governing the referendum.
The question which the federal government is proposing that Canadians answer on October 26 is:
Do you agree that the Constitution of Canada should be renewed on the basis of the agreement reached on August 28, 1992?
Parliament will be reconvened September 8 for one week to debate the question related to referendum issues. It is not expected that Parliament will reconvene until after the referendum vote, in order to provide Member's with the maximum opportunity to campaign in their constituencies.
National Constitutional Reform Referendum Campaign
The federal act establishes a complex regime of committees which must be established for the purpose of funding campaigns for or against the referendum question. Elections Canada will provide detailed information on the regulations governing the committees which must be registered.
While details on the role of provincial and territorial governments and aboriginal organizations in the referendum campaign have yet to be announced, the following provides a summary of the federal government's approach:
-the Public Affairs Branch of the Office of Federal/Provincial Relations has been designated as the agency responsible for referendum communications activities and logistics including:
-developing an disseminating communications products which inform Canadians about, and explain, the Consensus Agreement on the Constitution;
-supporting the Government of Canada, Members of Parliament and Senators;
-encouraging individual Canadians, groups and associations to participate in the referendum;
-exploring means of coordinating and/or harmonizing federal government activities with those of the key players, including provincial and territorial governments and aboriginal organizations; and
-establishing temporary regional logistics offices in each province and territory to provide logistical support for the public affairs branch and distribute documents and information.
A decision has not been made on the location of a Northwest Territories office, or the Senior Regional Territorial Advisor who will be responsible for its operation.
At the political level, First Ministers and aboriginal leaders made a commitment in Charlottetown to assist each other in promoting and explaining the Consensus Report during the referendum period, and generally encouraging Canadians to vote in support of the reform package.
Federal, Provincial, Territorial, Aboriginal Ratification Processes
There are essentially two approaches to ratifying the constitutional reform package. In the first stage, as outlined above, Canadians will be asked to vote in a referendum based on the Consensus Report. However, the National Referendum will not be sufficient ratification, by itself, to allow amendments to the Constitution.
In the second stage of ratification, the Constitution requires that Parliament, and the appropriate number of legislatures of the provinces, pass constitutional resolutions approving the actual legal text that is to be included in the Constitution. Some amendments will require resolutions of Parliament and two thirds of the provincial legislatures representing 50 per cent of the population of all the provinces. Other amendments will require resolutions of Parliament, and all then provincial legislatures.
The final legal text will have to be agreed upon by federal, provincial, and aboriginal leaders before this second stage of ratification can proceed.
To date, aboriginal organizations have not established a formal ratification process to obtain support from their membership. The Assembly of First Nations is planning a Chief Assembly where a vote will be taken on the Consensus Report. The results of this vote, plus a special vote taken by individual bands, will provide the position on the reform package. The Inuit Tapirisat of Canada have not yet decided whether the Inuit vote from the National Referendum will be binding on the I.T.C. leadership. The Native Council of Canada and the Metis National Council did not have formal ratification plans at the time this report was prepared.
While the national aboriginal organizations do not yet have a formal amending formula vote for changes to the Constitution, there is general agreement that no amendments directly affecting aboriginal peoples will be passed without their consent. No such commitment exists for the territorial legislatures which also do not have any formal role in the constitutional amendment process.
Conclusions - Implications For The N.W.T.
While the Consensus Report represents a remarkable achievement for the governments and aboriginal organizations that were mandated with negotiating the reform package, the next few weeks will be crucial in terms of generating understanding and support for the package among Canadians, and the political will for formal ratification of the constitutional amendments by Parliament, provincial legislatures and aboriginal organizations.
These revisions to the Constitution and others which are contemplated through future negotiations on the Canadian Common Market, federal spending powers and aboriginal issues will fundamentally change the approach to governing this country. They will also bring about some fundamental changes in the approaches being developed for government in the Northwest Territories.
Recognition of the inherent right to aboriginal self-government will provide Dene, Metis, Inuvialuit and Inuit the means to develop their own institutions of government; create public institutions which better reflect aboriginal interests and objectives; or both.
The role which territorial governments have played at the national level for the past decade will be formalized and, while additional jurisdiction and constitutional status has not been conferred through constitutional amendments, territorial governments and legislatures will have additional opportunities to shape the national agenda through participation at future meetings on constitutional, economic, and aboriginal matters.
Whether or not territories choose to pursue provincial status in the coming decades, the terms for achieving this objective will be more favourable than those in the existing Constitution or contemplated under the Meech Lake Accord. While there is no guarantee that Parliament will automatically create a new northern province, eliminating vetoes by provincial governments means that emerging provinces can use creative, new approaches to designing governing institutions which are not the accepted norm among existing provinces in southern Canada.
Much work remains to be done on constitutional amendments which will create a common market in Canada and influence the way in which the federal government provides financial support for programs in areas of provincial jurisdiction. In both cases, future negotiations will be crucial in establishing arrangements, which provide for government intervention to develop the northern economy, and maintain a strong federal presence in programs which are vital to the delivery of programs and services to northern residents.
Last, Northwest Territories residents will be electing one representative to a reformed Senate. The real impact of this new institution on the operation of the federal government remains to be seen; however, it must be understood that a primary role of the reformed Senate will be to represent the interests of the developing regions and smaller jurisdictions of Canada in relation to those of central Canada. That is why the special committee decided early on in the constitutional negotiations process to support an equal Senate.
In conclusion, the Northwest Territories has made significant gains in the current constitutional round.
Based upon these achievements, and the constitutional expertise, which northern governments and aboriginal peoples have developed over the past two decades, the special committee believes that we are well placed to take advantage of these achievements, and conclude new political and constitutional arrangements consistent with the fundamental laws of Canada, and aspirations of northern residents.
Recommendations
As noted above, the constitutional reform process is now entering another phase which involves a combination of federal and provincial referendum on the Charlottetown Consensus Report. Given that the campaign will take place across Canada, and has special meaning for the aboriginal peoples of the north, the Legislative Assembly, through its Special Committee on Constitutional Reform, should maintain a presence throughout the crucial period leading up to the October 26 referendum.
Recommendation one: That the Legislative Assembly formally endorses the Consensus Report on the Constitution concluded in Charlottetown on August 28, 1992.
Recommendation two: That the Special Committee on Constitutional Reform conduct a public information campaign prior to the referendum which would outline the Consensus Report's contents and identify the implications of the reform package for the Northwest Territories.
While the referendum process has a special significance for the future of Canada and contributing to ratification of achievements like aboriginal self-government, the fact remains that much more work is required to finalize many details of the reform package. This work has both national and territorial implications and encompasses almost all elements of the reform package.
Recommendation three: that the special committee review its mandate in light of developments to date and report back to the Legislative Assembly during the November session with recommendations for ongoing involvement in the constitutional reform process.
Motion To Move The Report Of The Special Committee On Constitutional Reform Into Committee Of The Whole
Mr. Speaker, that concludes the Report of the Special Committee on Constitutional Reform. Therefore I move, seconded by the honourable Member from Deh Cho that the Report of the Special Committee on Constitutional Reform be received by the Assembly and moved into the committee of the whole for discussion. Mahsi.
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
Page 961
The Speaker Michael Ballantyne
May we have a seconder please? Mr. Kakfwi, would you please for the record, give your seconder.
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
Page 961
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
Page 961
The Speaker Michael Ballantyne
Your motion is in order, Mr. Kakfwi. Question has been called. All of those in favour? All those opposed? Motion is carried.
---Carried
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
Page 961
The Speaker Michael Ballantyne
Item 11, reports of standing and special committees. Item 12, reports of committees on the review of bills. Mr. Todd.
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
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John Todd Keewatin Central
Are we on Item 12?
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
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The Speaker Michael Ballantyne
We are, Mr. Todd.
Committee Report 18-12(2): Report Of The Special Committee On Constitutional Reform On The Multilateral Meetings On The Constitution And First Ministers' - Aboriginal Leaders' Conferences On The Constitution
Item 11: Reports Of Standing And Special Committees
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John Todd Keewatin Central
I am sorry, Mr. Speaker, I was exhausted.
---Laughter
Item 12: Reports Of Committees On The Review Of Bills
Item 12: Reports Of Committees On The Review Of Bills
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John Todd Keewatin Central
Mr. Speaker, I wish to report to the Assembly that the Standing Committee on Finance has reviewed Bill Number 31, an Act to Amend the Student Financial Assistance Act and wishes to report that Bill 31 is now ready for committee of the whole. Am I right?
---Agreed
---Applause
Item 12: Reports Of Committees On The Review Of Bills
Item 12: Reports Of Committees On The Review Of Bills
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The Speaker Michael Ballantyne
Pursuant to Rule 66(3), Bill 31 is ordered into committee of the whole. Item 12, reports of committees on the review of bills. Item 13, tabling of documents. Mr. Morin.
Item 13: Tabling Of Documents
Item 13: Tabling Of Documents
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Don Morin Tu Nedhe
Thank you, Mr. Speaker. I would like to table the following document, Tabled Document 89-12(2), the 1992 Housing Study of the N.W.T. Housing Corporation. Thank you.
Item 13: Tabling Of Documents
Item 13: Tabling Of Documents
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The Speaker Michael Ballantyne
Item 13, tabling of documents. Mr. Antoine.
Item 13: Tabling Of Documents
Item 13: Tabling Of Documents
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Jim Antoine Nahendeh
Thank you, Mr. Speaker. I would like to table Tabled Document 90-12(2) dealing with the Patterson Sawmill. A copy of a land use application; correspondence dated September 4 from Gerry Antoine, Chief of the Fort Simpson Band to the Dene Nation; correspondence dated September 9 from Chief Norwegian of Jean Marie River opposing the land use permit; copies of motions passed by the Deh Cho Tribal Council meeting and a motion opposing the approval of land use permits and dealing with legal action against the Patterson Sawmill; correspondence dated September 14 from Bill Erasmus to the Regional Manager of Land Resources. Thank you.
Item 13: Tabling Of Documents
Item 13: Tabling Of Documents
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The Speaker Michael Ballantyne
Item 13, tabling of documents. Item 14, notices of motion. Mr. Morin.