Some Day the Sun Will Shine and Have Not Will Be No More
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The statement “other first-hand accounts” suggest that Newfoundland’s role was that of delivering the message, not creating it, which is untrue. Many of the provincial delegations discussed through the evening and night various elements that they thought might be probable compromises.
The statement “‘the Peckford Document’ was decisively influenced by Romanow, McMurtry, and Chrétien” is untrue. During that evening and night, ideas being advanced by all the provincial delegations were discussed, and it was later, in reviewing the major elements, that the document was prepared.
The theme of trickery by Prime Minister Trudeau—the theme of the article—is not how I would characterize the events.
While I agree with Mr. Lougheed that there was no desire or attempt by the Group of Seven to exclude Quebec, we should have tried harder to keep Quebec involved.
A. Brian Peckford
Of course when I say me, I really mean the Newfoundland Delegation, specifically Minister Gerald Ottenheimer, Deputy Ministers Cyril Abery and Ronald Penney, and adviser Cabot Martin. A document was prepared by us and presented on the evening of November 4, first to Alberta, Saskatchewan, and British Columbia, and then later that evening to PEI and Nova Scotia. The PEI attorney general contacted Manitoba. The document was finalized, with some adjustments, in the early morning (1: 00–1: 30 a.m.), presented to eight provinces at breakfast (New Brunswick and Ontario were not a part of the group), and then approved by the breakfast meeting to be presented by me to the full conference later that morning. It was and formed the basis of the Patriation Agreement.
F. FURTHER LETTERS CONCERNING THE CONSTITUTION
I was out of the country in February when an article appeared in the Globe and Mail headlined “Senior U. S., Canadian judges spar over judicial activism.” In that article Judge Binnie made some incorrect remarks about my position during the constitutional meetings of 1980 and 1981. Luckily, a person saw the article and sent it to me. I wrote Judge Binnie the following letter on March 20, 2007:
The Honourable Mr. Justice William Ian Corneil Binnie
Judge
Supreme Court of Canada
301 Wellington Street
Ottawa, Ontario
K1A 0J1
Dear Mr. Binnie:
In an article ( “Senior U. S., Canadian judges spar over judicial activism”) in the Globe and Mail newspaper of Saturday, February 17, 2007, one paragraph says:
Judge Binnie cited an attempt by former Newfoundland Premier Brian Peckford in the early 1980s to have his province’s right to control fisheries written in the constitution. When former Prime Minister Pierre Trudeau asked how he could possibly balance fish against human rights, he quoted Mr. Peckford as saying, “That’s your problem.”
Now, of course I do not know if this is an accurate quote by the paper of what you said. However, I have not seen any comment to the paper from you denying this quote. I assume it to be correct, therefore, and know that if in fact this is wrong you will be sure to set matters straight.
I have no recollection of us ever meeting. Although you might have been amongst the bevy of counsel at the federal-provincial Patriation talks, I do not recall your presence.
I find it very disturbing that you would use such a quote from one party to an alleged happening without knowing the views of the other party referenced in the quote. It just might be that the second party may not agree, either having a totally different version of the conversation or indicating that such a conversation never occurred.
There were many things said in the heady days of the constitutional Patriation talks of the early 1980s, in many formal and informal meetings.
However, at no time do I remember such an exchange with the prime minister of the time. It was not uncharacteristic of the prime minster to “set up” such a question to try and make something that was contained in the question a fact. For example, at one public forum carried by national TV, the prime minister had tried to link my constitutional position with Quebec’s because I had voiced some support for an unrelated Quebec social program.
I do remember Mr. Trudeau saying that fish swim; hence, it is all about national and international matters and provincial involvement is out of the question. Whereupon I retorted, “yes, from offshore Newfoundland to inshore Newfoundland!” Sometimes legal niceties get in the way of real things.
And if I had to quote some of the things I remember that were said in these meetings in the cut and thrust of debate, which, I suspect, occurs among judges in the consideration of a decision, and to say that such comments represented a given position, then the chance of fruitful debate and reaching a consensus would be small indeed.
We all knew that it was not a question of a particular federal-provincial right versus “human rights.” Rather, we understood that the prime minister and many other parties at the table were desirous of adding to the constitution in the Patriation process, some advocating a Charter of Rights and Freedoms and others, at the same time, requesting consideration of other matters to be changed or added to the Constitution. There were provinces that were desirous of changes/additions as it related to non-renewable resources, for example, resulting in the addition of Part V1, Section 92A. There were other issues like regional disparities and equalization (Part 3, Section 36) and aboriginal rights (Part 2, Section 35) that were added.
But even more to the point of the quote, that Newfoundland was entertaining some kind of strategy of bargaining various rights, let me quote from a Government of Newfoundland public document dated August 18, 1980, entitled “Towards the Twenty First Century—Together: The Position of the Government of Newfoundland Regarding Constitutional Change”:
The entrenchment of democratic rights and fundamental freedoms is a means of giving explicit constitutional recognition to the values which have served Canada well. Newfoundland, therefore, supports a Charter of Rights which will entrench the democratic and fundamental freedoms of Canadians. (p. 9)
No ifs ands or buts, no bargaining! This was 1980, long before the meetings and debates among the first ministers took place that led to the 1982 Constitution Act. So contrary to bargaining rights, the province was clear from an early date on the Charter, and the federal government had this document.
It is true that Prime Minister Trudeau was agitated with tiny Newfoundland vociferously arguing for a realignment of powers in Fisheries, a more balanced approach to the management of the resource between the two levels of government. I mean, it is one thing for a number of the provinces to be arguing for strengthening the Non-Renewable Resources provision, but Newfoundland on Fisheries and more balanced and joint decision making? That was quite another! How dare they? It sort of took him off his game plan and made him cranky. And, of course, add to that the fact that we were seeking some fairness in hydro transmission and had just discovered oil offshore that we were saying should be treated the same as if it was on land, and you have the makings of an exasperated prime minister whose real interests were Patriation and the Charter. He knew there would be trouble on his western flank, but on his eastern flank too?!
This leads me to the other equally disturbing part of the quote where you say I was trying “to have his province’s right to control fisheries written into the Constitution.” It is hard not to read this as you saying that the Province was looking to control the fishery. As you can tell from the above considerations, the Province was looking for more say over fisheries matters—a sharing of responsibilities, not control. The 1980 document already referred to provides a full description of the Province’s position. It is detailed and too lengthy for this letter. However, some points must be quoted, all from page 18: “The Government of Newfoundland is not requesting exclusive provincial legislative jurisdiction relating to Fisheries. Rather, the proposal requests a sharing of the legislative jurisdiction.”
Secondly, “the Government of Newfoundland recognizes the legitimate role of the federal government in many aspects of the fisheries and the degree of provincial
involvement required would not undermine this legitimate federal involvement.”
And thirdly, “the proposal made would not ‘balkanize’ the fisheries or lead to over-fishing because the federal government would retain full authority regarding the conservation of fish stocks.”
I now realize the difficult job of historians, and one of the reasons I find it necessary to write this letter. While we all know that there is a time to advance one’s own particular agenda, and that sometimes it may infringe upon how some view what is the “larger good,” I can assure you that those involved in the Patriation process knew and understood the local, provincial, and national perspective and how such weighty matters are an evolving process and why, in the end, a deal was struck. In my particular case, even without any changes on fisheries, in the last hours the Newfoundland delegation that I led made two written proposals that assisted in the final successful outcome.
Honourable A. Brian Peckford
Qualicum Beach, BC
Judge Binnie replied on March 28 on Supreme Court of Canada stationary.
Dear Mr. Peckford:
Thank you for your letter referring to an article that appeared in the Globe and Mail on February 17, 2007. The background you provide is most interesting. As you may have gathered, the topic of my conference speech was not at all what the Globe and Mail emphasized. I enclose a copy of what I prepared in advance for the translators.
In 1980 and 1981, I was in Ottawa having been retained to so some work for the Department of Justice on (amongst other things) the Constitutional File. I, therefore, followed with some interest the public discussions. I do recall quite distinctly reading Trudeau’s comment to the effect “How am I supposed to bargain fish against human rights?” reported in (if I recall) the Globe and Mail. I remember it because my wife snorted with amusement when she read it. It certainly sounded like an authentic “Trudeau-ism” and made sense only in the context of Newfoundland’s desire to achieve greater control over the fisheries at the time. It was certainly how I think it was interpreted by many of the lawyers in the federal Department of Justice.
In the debate with Justice Scalia, I wasn’t pretending to address any point of historical controversy. I was responding to Scalia’s argument that “originalism” could be followed without “freezing rights,” because if the people want to “update” a bill of rights they can always do so by constitutional amendment. As you know better than most, constitutional amendment is not a very feasible option in this country. The discussion on that point was brief and quite peripheral to our respective concerns.
Yours sincerely,
Ian Binnie
The Honourable Mr. Justice William Ian Corneil Binnie
Judge, Supreme Court of Canada
301 Wellington Street
Ottawa, Ontario
K1A OJ1
On April 25 I responded to his letter.
Dear Mr. Binnie:
Thank you for your letter dated March 28, 2007.
You mention my letter was undated. I sent the letter by three modes: regular mail, email, and fax. Both the email and fax record the date and hence why in my typing I excluded it.
You say that what was being talked about at the conference was much different than what the Globe and Mail covered. I hope you will tell them so. But, nevertheless, the story did quote you as saying “Judge Binnie cited an attempt by former Newfoundland premier Brian Peckford.”
Thank you for clarifying that you know of no quote from me in response to what you say was a quote from Mr. Trudeau stating: “How am I supposed to bargain fish against human rights?” I take it, given that there is no mention in your response, that you now agree that Newfoundland was not seeking “control” over the fishery.
As described to you in my letter, the Newfoundland position (support of a Charter without conditions) was made quite clear in a public document (published in August) before the meetings in the fall of 1980. Hence, Mr. Trudeau’s statement was a false representation of the situation, slick but inaccurate. It was quite likely a deliberate ploy to denigrate one of the Gang of Eight, which, of course, would gain great favour in many quarters of central Canada at the time. The juxtaposition of fish and human rights sounds so far-fetched to the average person; how outlandish and unreasonable. The press would “lap it up.” In this context, yes, the quote is likely a Trudeau-ism.
It is unfortunate, therefore, in light of the evidence, that, although not uttered, such a type of statement ( “That’s your problem”) is seen by you and, at the time, by members of the federal Department of Justice as reflective of Newfoundland’s response.
In my experience the Globe and Mail newspaper, as a source, is very unreliable, having on two specific occasions carried stories about me (one that had me at one time being president of the Provincial Teachers Association, and the other regarding a free trip I was supposed to have taken on a local airline), both of which were shown to be completely false. And, of course, this very exchange was sparked by a Globe and Mail article that you say “the topic of my conference speech was not at all what the Globe and Mail emphasized.”
There are many other myths (in addition to the two you espouse) circulating about those last days and hours that led to the Constitutional agreement. For example, upon randomly going to a website on constitutional patriation, I note that it talks of only four provinces being involved during the last night. This is false. Seven of the provinces were directly involved that night, and all ten the next morning. And this site talks of providing information to students! The Canadian Encyclopedia website does not record proposals made by Newfoundland at all. Similarly, the book National Deal by Robert Sheppard and Michael Valpy talk of officials meeting on the final night. In fact, four premiers were present.
A. Brian Peckford
The comments of Judge Binnie at the conference referenced in the Globe and Mail article and his statement in his letter are startling, given that they come from a person who held such high office. Even though he states that the Globe and Mail did not carry what he emphasized, he does not deny saying what the paper says, and more galling even when confronted with the evidence of Newfoundland’s position (a written document of August, 1980), one that he should have read, given that he was working with the federal government on the Constitutional File, and further, that he had no evidence that I said what he alleged in the paper—he makes no attempt to acknowledge he was wrong.
Cunningly, he moves from the position of “control” of the fishery in the remarks quoted in the paper to “greater control” in his letter, rather than forthrightly saying he was wrong on the point. Factually, this, too, is wrong; to be utterly accurate, it was going from nearly no control to some control. No small distinction! And it was not Newfoundland’s response, “That’s your problem” at the time, as he continues to suggest. It was a preconceived notion that most federal bureaucrats had about Newfoundland’s position. It was their attitude of Newfoundland’s position, but it was not Newfoundland’s position.
APPENDIX II:
ATLANTIC ACCORD PROVISION
(SECTION 42)—CANADA
NEWFOUNDLAND OFFSHORE DEVELOPMENT FUND
List of Projects and Value
Centre for Earth Resource Research $27,085,000
Offshore Survival Centre $6,315,000
Skills Training Projects $4,500,000
Computer-Aided Engineering Design Centre $1,150,000
Career Development Awards Program $18,000,000
Centre for Offshore and Remote Medicine and Telemedicine $2,883,500
Centre for Cold Ocean Resources Engineering $7,500,000
Centre of Excellence in Marine Signal Processing $7,600,000
Research and Development Block Fund $7,649,965
Offshore Technology Transfer Opportunities Program $5,000,000
Petroleum Training Program $22,600,000
Industrial Infrastructure Planned Program $733,546
Management Training Program Marystown Shipyard Ltd. $1,000
,000
Infrastructure Planning Marystown Shipyard $343,341
Enhancement of Fabrication Facility Marystown Shipyard $40,000,000
Access Road to Cow Head Facility $573,228
Administrative Support Program $1,492,500
Marine Offshore Simulation Training Centre $12,429,810
Segmented Wavemaker Institute for Marine Dynamics $3,500,000
Institute for Social and Economic Research $292,972
Community Information Centre Program Agreement $449,980
Public Legal Information Association of Newfoundland $98,000
Hibernia Onshore Site Development and Engineering $95,000,000
C-Core Modelling Centrifuge Facility $3,556,200
Hibernia Operational Training Program 1 $990,625
Hibernia Operational Training Program 2 $689,220
Vinland Industries Ltd. $1,793,095