Mr. Speaker, the debate concerns chapter 5 of the Constitution Act, 1982, which is addressed to constituent power, the ultimate source of constitutional power in the state.
It is an area in which there is an absence of compelling or binding precedents or practice. It is proper therefore for Parliament to attempt to lay down constitutional ground rules as to what is involved and what is not involved.
The first of these, of course, is that what Parliament says in a constitutional debate, unlike the position Parliament views in ordinary legislation, amounts to travaux préparatoires, authoritative sources regarding what Parliament intended, which are controlling on the courts in their approach to that matter.
Whether this is, as presented, a section 43 matter involving only Parliament and one other province is a matter for Parliament to decide, not the province, and that it is judicially reviewable as such by the courts.
Further, it is a mandate to Parliament in the sense of both chambers under chapter 5 of the Constitution, not to the cabinet, not to the Prime Minister.
I have argued, as members would be aware, for the attrition of the Senate's powers over the House as an unappointed body in other areas, but it is difficult to deny in the case of an act adopted as recently as the Constitution Act, 1982 that the Senate does not have full power equal to that of the House in this matter.
I reiterate that Parliament is not a rubber stamp for a proposal submitted by a provincial legislature. It is no mere ministerial one to follow up the wishes of provincial legislatures. Parliament has full political discretion in exercising its role to accept, to reject or to send back to the province with suggestions of desirable amendments that the province should make to obtain Parliament's approval.
I stress again that Parliament in approaching its role is aware of the principle of economy in the use of power which is applicable as much to constitutional matters as to military matters.
There is an obligation on a province approaching Parliament to exhaust the ordinary political processes within the province before escalating to a constitutional amendment which it would ask Parliament to adopt.
Parliament in this case is limiting itself to the facts presented by the provincial legislature of Newfoundland. It is a Newfoundland situation, and Parliament's decision to approve or not to approve the project of resolution should be understood in that context.
In particular, it should be taken in the context of chapter 5 of whole of the Constitution Act, 1982. It sets out various procedures for amending the Constitution with different degrees of difficulty in the procedures of amendment which are intended to correspond to the seriousness or otherwise of the proposals concerned.
Since section 43-based amendments are limited to the province or provinces actually approaching Parliament, Parliament in responding and carrying forward a proposal for an amendment is limiting itself to those provinces. What we are saying is no precedent in constitutional legal terms is created from this disposition that might apply to other provinces not represented as parties to the action. Section 43-based constitutional amendments have no application to any other than the particular moving parties concerned.
I suggested earlier when the matter first arose in political arenas that there might be merits in obtaining an advisory opinion from the Supreme Court that would address itself to the issues on which I have spoken. However, an advisory opinion can of course be a prior opinion, or a subsequent one if questions of doubt or interpretation arise. After the adoption of the present resolution, they could properly be referred to the Supreme Court for an advisory opinion.
In approaching this matter I am very sensitive to the principles of federal comity, that is to say the particular obligations of good faith and mutual trust and respect that link provinces and the federal government in a federal system such as ours.
I have already spoken of the prior obligation of a province to exhaust the ordinary political processes before approaching us for a constitutional amendment. The federal Parliament, in responding to a provincial request, will bear in mind what the late Mr. Justice Frankfurter of the United States Supreme Court said about the duty of the federal government, in exercise of federal comity, to defer to a province even if on particular facts the federal government might have chosen to act otherwise in the legislation that is involved.
It is in that spirit that we approach this resolution. I have taken note of the fact that representations have been made to many members of the House by individual voters in Newfoundland on this question. We do take in mind the fact that the premier of Newfoundland has met with us and has given assurances that he will, in the application of this resolution of amendment, if it is adopted, negotiate and deal with people within his province.
Federal comity works two ways. It is a reciprocal obligation, and we take very seriously the assurances given by the premier of
Newfoundland who is well known and respected as a distinguished former member of the House.
I am acting on the basis of these assurances, and also my awareness that the application under section 43 cannot, in constitutional law terms, extend beyond the project submitted by the province of Newfoundland that it does not constitute a constitutional legal precedent for other cases and that, in particular, it can have no constitutional application to parties not represented before the Parliament in this proposal. It cannot touch fundamental rights or other matters. It would require other amending procedures with extraordinary majorities and processes not present in the relatively simple section 43 application.
Therefore, it is on that basis and having expressed these views which, as travaux préparatoires, do indicate an intent of Parliament and which we would expect the courts, as a co-ordinate institution, to respect that I am prepared to support the resolution.