CANADA/SPECIAL REPORT

CANADA’S ANSWER

A LAST-MINUTE DEAL WOULD CHANGE THE NATION-BUT WILL QUEBEC SAY YES?

MARY JANIGAN,NANCY WOOD July 20 1992
CANADA/SPECIAL REPORT

CANADA’S ANSWER

A LAST-MINUTE DEAL WOULD CHANGE THE NATION-BUT WILL QUEBEC SAY YES?

MARY JANIGAN,NANCY WOOD July 20 1992

CANADA’S ANSWER

CANADA/SPECIAL REPORT

A LAST-MINUTE DEAL WOULD CHANGE THE NATION-BUT WILL QUEBEC SAY YES?

Just hours after the Meech Lake accord unravelled in June, 1990, a weary and embattled Robert Bourassa rose in the National Assembly to issue a defiant challenge. The Quebec premier declared that he would no longer sit at the negotiating table with other government leaders. Quebec had set its conditions for constitutional change—but that accord had just collapsed amid a furious national debate. Now, Bourassa said, it was up to English Canada to come up with a package of its own proposals. “What does Canada want?” Bourassa asked. Last week, the other nine provincial premiers and federal Constitutional Affairs Minister Joe Clark proudly announced that they had agreed on a wide-ranging plan for constitutional change. After 12 hours of intense negotiation, which capped almost four months of meetings, a beaming Clark proclaimed: “Today, I think Canada has answered.” Replied Bourassa two days later: “The multilateral process resulted in offers—and we rejoice in that fact.”

What Canada—or at least English Canada— wants, according to the premiers and Clark, is startling change. An elected Senate would replace the appointed upper house and each province would have an equal number of seats, regardless of population. Natives would govern themselves in a manner yet to be determined. The new Constitution would declare an end to provincial barriers to the movement of goods, services, people and investment capital—although there would be a substantial number of exemptions. There would be stronger guarantees that Ottawa and the richer provinces would continue to subsidize the poorer provinces. Each province would be able to block further changes to the Senate and the Supreme Court—meeting Bourassa’s demand for a Que-

bec veto by extending it to all provinces. And any province that wanted more power in certain fields, such as manpower training, could negotiate an agreement to get that power from the federal government.

But it is far from clear that Quebec is willing to accept what the rest of Canada wants. While the other premiers did try to meet Quebec’s original demands, they also endorsed many concepts, such as a strong Senate with equal representation from each province, that Quebec has traditionally opposed. Last week, Bourassa claimed that parts of the proposal would be difficult to sell to Quebecers, and he described certain aspects as confusing and troubling, particularly the plan to reduce Quebec’s presence in the Senate while giving the upper

chamber the power to overturn Commons legislation. He also indicated that Quebec needed an incentive—perhaps the offer of new powers—to return to negotiations. “We want certain clarifications,” he told reporters. “These are not final offers, they are provisional.”

In response, politicians across the nation warned that changes would have to be minor. They said that the intricate package was the result of delicate negotiations and complex trade-offs: any major shift in one area could cause the whole deal to collapse. Alberta Intergovernmental Affairs Minister James Horsman, for one, reacted with politely veiled horror to Bourassa’s claim that the package was still open for change. “We have gone through a

very elaborate process and I do not think there is much—if any—room for alteration of any of the aspects,” he said. “We have been at the table for almost four months arguing over how many angels can dance on the head of a pin. These are things one cannot contemplate repeating.” Even Ontario Premier Bob Rae, who shared many of Quebec’s concerns throughout the negotiations, appeared unwilling to countenance major changes. Declared Rae: “We can talk. We just cannot reopen the whole thing.” Faced with apparently irreconcilable differ-

ences between Quebec and the other provinces, Ottawa stalled for time. With the consent of the opposition Liberals and the New Democrats, it postponed plans to recall Parliament on July 15 to examine the package. Instead, late last week, Prime Minister Brian Mulroney announced that federal officials would work to clarify the proposals with provincial officials in preparation for a private meeting of the first ministers. Federal officials, in turn, speculated that the meeting would not occur until late July.

But Ottawa is concerned that there is little room left in which to manoeuvre. When the negotiations concluded, many premiers emphasized that they had already gone as far as they could towards satisfying their colleagues’ demands. Indeed, several of the participants said that the deal, as written, merely met their minimum requirements. Said B.C. Premier

Michael Harcourt: “It is a good package, but a compromise package. No one gets everything they want.”

In the face of those hardened positions, Ottawa has few carrots that it can offer to attract Quebec back to the negotiations. If Quebec insists on major Senate changes, senior federal officials told Maclean’s, the fragile consensus among the other provinces will likely fall apart. Still, there are two key areas where concessions appear possible: Ottawa could offer additional federal powers in fields such as family policy and energy to the provinces, and the Constitution could be amended to answer Quebec’s demand that all provinces must approve the creation of new provinces.

If those concessions are insufficient—and the accord collapses—Ottawa would likely present its own proposals to Parliament. Some federal strategists would clearly welcome that opportunity because it would allow Ottawa to craft a proposal that is better tailored to Quebec’s needs. As well, senior federal officials are still smarting over Clark’s decision to accept watered-down proposals to reduce interprovincial trade barriers. But a decision to act unilaterally would carry significant risks: above all, it would be difficult for the other nine provinces to accept a new federal package, because it would be seen as a rejection of their own hard-won deal. Said a key federal strategist: “If worse comes to worst, the feds are going to have to go out on a limb and put forward their own package. That option is made more difficult by the agreement we have now.”

In fact, the final legal text of the agreement could take three to five months to hammer out. If its substance remains intact, however, it _ would radically alter the landscape of I Canadian politics. Some changes:

I THE SENATE

Five years from now, voters might be handed two ballots when they enter the polling booth—one for the House of Commons and a separate one for the Senate. The new Senate would have eight representatives from each province and two each from the Northwest Territories and the Yukon. As well, an unspecified number of seats, possibly eight, would be reserved for aboriginal groups, bringing the potential total to 92. Those numbers would represent a substantial reduction in seats for Ontario and Quebec, which have 24 seats each in the present 104-seat Senate.

The proposed Senate is designed to appease western Canadians, who feel that the current parliamentary system benefits Central Canada. A simple majority of senators could defeat House of Commons legislation that affects the taxation of natural resources. That provision responds to western demands that the new Senate should have the power to block any

THE PROPOSED TRIPLE E SENATE IS A POTENTIAL DEAL BREAKER

future attempt to impose policies similar to the National Energy Program—the controversial 1980 federal plan that levied heavy taxes on oil and gas revenues.

The reformed Senate could also defeat Commons legislation in other areas, but only with a majority of 70 per cent. In a further and highly unusual twist, a vote by 60 per cent to 70 per cent of the senators against a Commons bill would trigger a joint sitting of the two bodies. The combined membership of those two chambers—more than 400 politicians—would then vote on the matter, with a simple majority being sufficient for victory.

The method of electing the new senators would also be radically different. It is not clear if voters would select a single senator for a riding—or select all eight senators for the province. In either case, rather than selecting a single candidate, voters would be asked to rank candidates in order of preference. The candidate—or candidates—with the highest overall approval would win.

The proposed Senate has already sparked fierce debate. University of Calgary dean of graduate studies David Bercuson has strongly advocated an elected, equal and effective Senate because “the interests of minorities are

protected to some degree from the raw power of the majority.” Although he described the overall proposal as a “fairly good compromise,” he ridiculed the method of election as “a wingy idea.”

In contrast, Quebec Senator Gérald Beaudoin, a constitutional expert, dismissed the entire proposal because, he said, it would result in constant warfare between the Commons and the Senate. He pointed out that it will give only 17 per cent of the seats to Quebec and Ontario, even though they represent more than 60 per cent of the population. Said Beaudoin: “I was really surprised that Ontario went along with this Senate offer. If Quebec comes back to the negotiating table, there have to be some new solutions.” For his part, Premier Bourassa indicated that Quebec might be more amenable to an equal Senate if it had the power only to delay—not reject—legislation. But that idea is clearly unacceptable to some western provinces and Newfoundland.

HOUSE OF COMMONS

In exchange for giving each province equal representation in the Senate, the 295-seat Commons would be expanded to better reflect the populations of the larger provinces. Ontario would gain 10 seats, British Columbia and Quebec would gain three seats each and Alberta would gain one.

ECONOMIC UNION

The proposals to strengthen Canada’s economic union have a tangled history. Ottawa signalled its desire to dismantle the more than 500 interprovincial trade barriers in September, 1991, as part of a far-reaching series of constitutional proposals. As talks dragged on through the winter, Ottawa and the provinces agreed to handle that section with a simple political agreement because the constitutional package had become unwieldy. But last month, when it became clear that the more streamlined version contained little for the federal government, Finance Minister Donald Mazankowski angrily intervened and demanded that Clark obtain constitutional guarantees to help the economy.

Although Clark complied, senior federal officials still consider the agreement to be far too weak to be of much value. Currently, the Constitution prevents provinces from imposing tariffs on goods from other provinces, but does nothing to prevent the erection of nontariff barriers such as preferential purchase practices. The new proposal allows so many exemptions that federal officials are deeply concerned that the list actually reinforces trade restrictions—because it gives constitutional status to 13 different kinds of barriers. “At this point, it would be better to drop it,” said one official. He added that the exemptions were largely in

response to the concerns of Saskatchewan Premier Roy Romanow, who has heatedly opposed the economic union proposals because they could severely restrict a provincial government’s ability to use subsidies to attract industries. Federal officials believe that Romanow simply outmanoeuvred Clark.

EQUALIZATION

After months of intense lobbying by the poorer provinces, the premiers proudly announced that they had extracted stronger guarantees of federal equalization payments for the poorer provinces. Those payments are designed to ensure that government services and programs in the poorer provinces are comparable to those offered in richer areas. But critics say that the new provisions fail to take into account taxpayers’ ability to pay. University of Alberta economist Paul Boothe, for one, warned that provincial politicians who were dissatisfied with the level of equalization payments might be able to take the federal government to court. “Does that mean that the courts will decide what is an adequate level of public services?” asked Boothe. “We should flesh out this proposal with legislation rather than allow it to be determined in unexpected ways by the courts.”

CONSTITUTIONAL VETO

Since Confederation, Quebec has maintained that it should have a veto over constitutional change because Canada, in its view, is a pact between two founding nations—French and English. However, there is no such veto in constitutional law. Under the proposals, Quebec would finally gain that veto—but so would every

other province. And the power would apply only to changes to the Supreme Court and to the Senate. The English-Canadian premiers have so far rejected another key Quebec demand—that

it be allowed to block the creation of new provinces.

NATIVE RIGHTS

In 1990, natives played a key role in defeating the Meech Lake accord, arguing that the document ignored their interests. In contrast, native leaders have been full participants in many of the most recent negotiating sessions. Last month, it appeared that native groups had won a resounding victory: the Constitution would recognize their inherent right to selfgovernment and, more important, it would guarantee equalization payments to pay for it. But last week, as provincial and federal officials voiced their concern over how much power natives would get and how much those arrangements would cost Canadian taxpayers, the deal was significantly watered down. Provinces promised to fund native self-govemment—but they refused to put that commitment in the Constitution. Still, Assembly of First Nations National

Chief Ovide Mercredi emerged from the sessions with two thumbs up, indicating his pleasure that recognition of the aboriginal right of self-government remained in the package. Said

Mercredi: “We have moved from nothing in the Constitution to fundamental reforms that recognize the inherent right of our people to govern themselves.”

DIVISION OF POWERS

The proposal recognizes the provinces’ exclusive jurisdiction over six areas, including mining and tourism. As well, it declares that labormarket training and culture, with the exception of such key cultural agencies as the CBC, should become fields of exclusive provincial jurisdiction. Last week, Bourassa indicated that the proposals did not go far enough: “We see that there is clearly an opening in the federal proposals for the [Quebec] government to control human development.” That vast field could cover many things—but it is an area where Ottawa could make concessions.

Ottawa must now determine how much common ground exists between Quebec and its provincial partners. While it might appear that the simplest solution would be to give more powers to Quebec to secure its agreement, that compromise is likely to be unpopular in English Canada. Warned the University of Calgary’s Bercuson: “I think the negotiators have already gone even further than most Canadians are comfortable with—they gave in because they were just tired of it.” In the end, Ottawa must confront two visions of the nation: what English Canada wants and what Quebec wants. The task now is to determine if any constitutional package can ever accommodate those two strikingly different dreams.

MARY JANIGAN

NANCY WOOD