At breakfast the next morning (Wednesday, November 4), the eight premiers there showed unanimous support for British Columbia to present the rejected proposal at the meeting of premiers and the prime minister later that morning. This was important to the premiers then, since if the conference failed later they wanted it on the record that they had made such a proposal and that it would show that the provinces were being flexible and really wanted the conference to succeed. This was agreed to at breakfast. At the last minute before the meeting was to begin, British Columbia reneged on presenting the proposal. Premier Bennett had contacted Premier Lougheed at the last minute and indicated he had changed his mind. We were all shocked, but what could we do? Premier Blakeney also had a proposal to present, and we had persuaded him to allow Premier Bennett to go first. Now that British Columbia was no longer going to present their proposal, when the meeting began Premier Blakeney proceeded to present his province’s proposal. It was discussed at great length, covering all the key issues that were in play at the time. In the end, though, the prime minister would not accept it.
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.
C. DOCUMENT OF MR. CY ABERY AND MR. RON PENNEY
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.
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br /> 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
D. DOCUMENTS AT THE PATRIATION CONFERENCE
FIRST PROPOSAL
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.
SECOND PROPOSAL
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.
THIRD PROPOSAL
This is the amended version of the previous document agreed to the night of November 4. It was presented at breakfast on November 5 and then to a full meeting later in the morning of November 5, forming the basis of the final agreement.
November 5, 1981
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, we submit 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.
The Delegation of Legislative Authority from the April Accord is deleted.
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 fundamental freedoms, 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.
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