Mr. Speaker, I must admit that I rise to speak to this motion with mixed feelings. On one hand, I have some sympathy for the member for Lanark—Frontenac—Lennox and Addington in his attempt to deal with the issues that arise from those sections in the BNA Act. On the other hand, as we have heard from both the Liberals and the Bloc, I feel that this is not the way to go about making constitutional amendments. I have to indicate that my party supports that sentiment and we will not be supporting the motion.
I want to wear my lawyer's hat for a moment. I have some concerns about whether this motion, if we proceeded with it, is within the exclusive power of this House. We may need to call on a number of constitutional experts to determine that for us. It is not something we can do in this House.
The reality is that even though we would be taking some power away from the federal government were we to proceed with this motion and amend the Constitution accordingly, there is still an issue on the role the provincial governments would play regarding this motion and its effect.
We could say that we are giving up a power, that we are restricting our ability to override provincial legislation. We cannot rule out that there may be some provincial government which, in looking down the road, may say, “At some point maybe we would like the federal government to continue to do that”.
I know that is stretching it a bit. It is the reality in terms of what we may end up with at some point. A provincial government may say, “Wait a minute. We do not want the federal government touching any part of the Constitution, including this part, until we approve of it also, or at least approve of it in an amendment formula that is acceptable to the country as a whole, including the provincial government”.
The other point we have to make when speaking to this type of an approach is to recognize that this part of the Constitution has been used sparingly over the years. The reservation section which we are addressing this evening was last used in 1961. It has been nearly 45 years since it was last used. With regard to the disallowance, 1943 was the last time it was used by the federal government.
In addition, the consensus among constitutional experts would be that at this point in time as this has fallen into disuse and there have been so many changes in our constitutional framework, including the passage of the laws in 1982, and the advance of the role of the Charter of Rights and Freedoms, and the role of the courts to make decisions, all of those advances have rendered these sections no longer constitutionally valid. The end result of this motion if it were to come to fruition would be for naught because these sections no longer apply. They no longer have constitutional validity.
If the federal government attempted to use these sections, I believe our courts, our Supreme Court in particular at this point, would strike the sections down as no longer being valid.
Let me make the additional point that because of what happened in the run up to 1982, the resulting and ongoing concerns by the province of Quebec over amending formulas and changing the BNA Act, and a number of those concerns being shared by other provincial governments, we should not be going anywhere near making amendments, even those that appear, at least on the surface, to be taking power away from the federal government to proect the provinces, even if that is the end result, and I am not entirely convinced it is, we should not be doing this without full involvement and consultation with and the authority of the provincial governments.
It seems to me that if we have learned anything from the 1982 experience it is that we should never go down that road again of making those kinds of decisions where we exclude any significant part of our provincial counterparts.
Based on all those points, it is the position of the NDP that we will not be supporting the motion, that it is simply just not the way to go about constitutional amendment in this country and that it has some very dangerous consequences should we do so.