SPECIAL REPORT

THE MEECH LAKE DEAL

CHRIS WOOD March 20 1989
SPECIAL REPORT

THE MEECH LAKE DEAL

CHRIS WOOD March 20 1989

On April 30, 1987, Prime Minister Brian Mulroney and the 10 provincial premiers withdrew to the federal government retreat at Meech Lake, Que., north of Ottawa, to consider a constitutional anomaly: the Constitution had been patriated in 1982, but without the approval of Quebec. During four hours of heated discussions, the 11 first ministers hammered out the principles of what was to become known as the Meech Lake accord—proposed constitutional amendments to meet Quebec’s concerns about its status in Confederation. Five weeks later, on June 3, 1987, the same 11 leaders signed the formal accord at the end of a second, 11-hour meeting in Ottawa. But it has not become law. Two new premiers have been elected since then—Manitoba’s Gary Filmon and New Brunswick’s Frank McKenna—and both have serious reservations about the agreement. As a result, they are withholding their provinces’ required ratification. Here are the main provisions of the accord, which is at the centre of Canada ’s constitutional standoff:

QUEBEC

“The Constitution of Canada shall be interpreted in a manner consistent with... the recognition that Quebec constitutes within Canada a distinct society. ”

“The role of the legislature and Government of Quebec to preserve and promote the distinct identity of Quebec... is affirmed. ”

The most contentious phrases of the accord, they appear in an opening statement that recognizes the role of Parliament and the provincial legislatures in preserving Canada's linguistic duality. The section notes that:

“French-speaking Canadians, centred in Quebec but also present elsewhere in Canada,” and “English-speaking Canadians, concentrated outside Quebec but also present in Quebec,” are “a fundamental characteristic of Canada.”

Defenders of the “distinct society” clause argue that it merely reflects the social and political reality of Quebec, one that is acknowledged in several clauses of the 1867 British North America Act, Canada’s founding constitution. They note that distinct qualities of Quebec society include its tradition of civil law, different from the common law procedure of the rest of the country, as well as language.

But its critics say that the legal implications of the phrase “distinct society” are unclear and that the provision could be invoked to override minority language rights enshrined in the 1982 Charter of Rights and Freedoms. Indeed, Manitoba Premier Gary Filmon asked the federal government in January to seek a ruling from the Supreme Court on the relative powers of the charter and the distinct society provision, but federal Intergovernmental Affairs Minister Senator Lowell Murray rejected the request. Still, if the accord becomes law, it will be up to the Supreme Court ultimately to determine the full impact of its provisions.

IMMIGRATION

“The Government of Canada shall, at the request of... any province, negotiate... an agreement relating to immigration... that is appropriate to the needs and circumstances of that province. ”

Ottawa and the provinces have shared power over immigration since the 1867 BNA Act. Since 1971, agreements have been in force between Quebec and the federal government to regulate that shared authority—and to ensure a role for Quebec in choosing potential immigrants who are most likely to assimilate into that province’s French-speaking society. Indeed, most other provinces have also signed immigration agreements with Ottawa—only Ontario, Manitoba and British Columbia have not.

This section of the Meech Lake accord grants limited constitutional status to those agreements, protecting them from capricious change by the federal Parliament. But the federal government maintains the power to set national immigration objectives, such as determining the number of people to be allowed into the country.

THE SENATE

“The person summoned to fill a vacancy in the Senate shall be chosen from among persons whose names have been submitted... by the... province to which the vacancy relates and must be acceptable to the Queen’s Privy Council for Canada. ”

This clause was negotiated into the accord by western premiers who were reluctant to sign a constitutional agreement with no reference to Senate reform, a major issue in the West. It falls considerably short of the demands of campaigners for an elected Senate with equal representation from the 10 provinces. The regional distribution of Senate seats among the 10 provinces and two territories remains unchanged: 24 each for Ontario and Quebec, 10 each for New Brunswick and Nova Scotia, four for Prince Edward Island, six each for the four western provinces and Newfoundland, and two senators representing the two territories. And the federal government would retain the right to appoint senators. But it would have to make its choice from among names supplied by the province where a vacancy occurs. The accord also says that Senate reform will be on the agenda of future constitutional conferences.

Mulroney has already committed the federal government to making Senate appointments according to the Meech Lake formula, but a dispute has arisen over how it may be applied. Alberta Premier Donald Getty has said that his government will hold a provincewide election for a candidate for the existing Alberta vacancy on the Senate, and he will then submit the winner’s name to Ottawa. But Mulroney, for his part, says that only a list of names, preferably at least five, would be acceptable under the terms of Meech Lake.

THE SUPREME COURT

“The court existing under the name of the Supreme Court of Canada is hereby continued as the general court of appeal for Canada. ”

The 1867 BNA Act empowered the federal government to establish a general Appeals Court and in 1875 it used that power. But the Supreme Court remained a creation of the federal Parliament, although the 1982 Constitution Act placed some limits on Ottawa’s power to change its structure without provincial approval. Meech Lake would give the Supreme Court full constitutional status, out of reach of federal government interference.

The accord also entrenches the tradition of reserving three of the nine Supreme Court appointments for Quebecers, in order to ensure the availability of a panel of French-speaking judges familiar with Quebec’s civil law system. It also requires that Ottawa select new Supreme Court judges from lists of jurists provided by the provinces—in the case of Quebec’s three judges, from a list provided by the government of Quebec. But it is silent on the tradition that, of the other six justices, three are to come from Ontario, two from the western provinces and one from the Atlantic provinces.

NATIONAL PROGRAMS

“The Government of Canada shall provide reasonable compensation to... a province that chooses not to participate in a national shared-cost program... established... in an area of exclusive provincial jurisdiction if the province carries on a program... compatible with the national objectives. ”

Federal initiatives in areas in which the BNA Act gives authority to the provinces have long been a sore point between the two levels of government. In instituting such programs as medicare—which operates in the exclusively provincial jurisdiction over health care—Ottawa wielded both a carrot and a stick. Provinces that agree to meet standards set by the federal government receive substantial subsidies. But those that decline to meet the requirements get nothing.

The Meech Lake provision is meant to confirm Ottawa’s right to initiate such programs while limiting its ability to force conditions on reluctant provinces. Any province that opts out of a federal program would be entitled to receive its share of the federal funding for the program—if at the same time it implements an acceptable program of its own.

But the accord does not define what would make a provincial program incompatible with national objectives. As a result, its critics fear that it could become more difficult for future federal governments to enact the equivalent of medicare in other areas under provincial jurisdiction—such as day care, which falls within provincial authority over education and social welfare—in the absence of provincial co-operation.

CONFERENCES AND AMENDMENTS

“A constitutional conference... of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister... at least once each year, commencing in 1988. ”

The accord sets an agenda for further evolution of the Constitution, while changing some of the rules for putting future reforms into effect. Under its terms, the first ministers must meet at least once a year to consider new constitutional amendments. And it stipulates two specific items for consideration: Senate reform, mainly a western concern, and the regulation of the fisheries—an item insisted upon by Newfoundland’s Brian Peckford, who for years campaigned to have jurisdiction over the fisheries, which now belongs to Ottawa, transferred to the provinces. The first annual meeting, contemplated for before the end of 1988, was postponed because of the federal election and will now be held in September of this year.

At the same time, the accord makes it significantly more difficult to change the Constitution. Since 1982, the agreement of all 10 provinces as well as Ottawa has been required to change certain provisions of the Constitution. For most provisions, the requirement is two-thirds of the provinces, as long as they represent 50 per cent of the population. In response to Quebec’s demand for a veto over most forms of constitutional amendment, the accord would substantially broaden the number of changes requiring unanimous approval—effectively giving a veto power to each of the provinces. Included in the subjects that would require unanimous provincial consent: changes to the Supreme Court or the powers and composition of the Senate; and the establishment of new provinces.

The inclusion of the last item is at the root of opposition to the accord by the two northern territories. The elected territorial governments argue that the standard of unanimous provincial consent for the establishment of new provinces will make it virtually impossible for them to attain provincial status.