1. The territorial governments of the Yukon and the Northwest Territories, together with Members of Parliament from the territories and many other witnesses, have criticized the 1987 Accord on the following grounds:
Surely this is a rule fit for an exclusive gentlemen's club, not for a democratic society. Decades from now the territories could be a million strong, but still be blackballed from the club for perhaps no reason other than that the south needed the north's oil;
(Penikett submission, p. 1)
(b) it is not entirely clear whether the Governor General retains the authority to appoint territorial Senators under section 24 of the Constitution Act, 1867 without the participation of the provinces;
(c) qualified territorial residents should have the opportunity of being considered for appointment to the Supreme Court of Canada without having to be nominated by a province;
(d) northern Canadians should have a say in constitutional and other matters by allowing territorial government leaders to participate in First Ministers' Conferences on issues that directly affect them.
2. The territorial governments have initiated court action against the federal government claiming that the process by which the 1987 Constitutional Accord was reached, and the Accord itself, both violate the legal and Charter rights of northerners. The Yukon claim was filed May 27, 1987. The federal government moved to strike out the claim as disclosing no reasonable cause of action. In effect Ottawa argued that there was no need for a trial because even if everything alleged on behalf of the Yukon was true (which was, of course, denied), nevertheless in law the Yukon was not entitled to the relief it sought from the court. The federal government's argument was not wholly successful. By decision dated August 11, 1987, Mr. Justice, D.C. McDonald of the Supreme Court of the Yukon Territory determined that two parts of the Yukon claim would be allowed to proceed to trial. These two allegations are that:
... which if proved might possibly result in the court making a declaration that a common law duty of fairness existed, that such a duty was based on legitimate expectations created by the course of past dealing between the Government of Canada and the elected members of the Yukon Territorial Council, and that that duty was breached. Of course all I am saying is that it is not clear that there is not a reasonable cause of action or claim. This conclusion should in no way be interpreted as a statement that there is on this ground a right to the relief claimed against the respondents and in particular against the Prime Minister of Canada;
(Judgement, p. 55)
(2) the judgement also held that the signing of the Accord by the federal government could possibly be a breach of an alleged duty to act in the best interests of the citizens of the Yukon. On this point Mr. Justice McDonald said:
I prefer not to express any opinion as to the likelihood of the Petitioners succeeding in establishing their claim that the Government of Canada owes a fiduciary obligation which could be justiciable and the subject of a declaration that there has been a breach of the duty... It suffices to say that it is not clear to me that, even assuming that upon the hearing of the Petition the only facts proved were those few facts stated in the affidavit from which I have quoted, the claim would fail;
(Judgement, p. 66)
3. In addition, Mr. Justice McDonald held at page 37 of his judgement that while a purported exercise of the procedure to amend the Constitution of Canada is subject Charter review, the mere signing of the 1987 Constitutional Accord by First Ministers is not sufficient to invoke the Court's jurisdiction because the Accord as such has no legal effect on anyone's legal rights. However,
If the amendment is approved by resolutions of the requisite bodies and is proclaimed by the Governor General, there is no doubt in my mind that a Petition or other appropriate initiating court document alleging inconsistency between the provisions of which the Petitioners complain and sec. 7 and 15 of the Charter would be one that would be "justiciable".
(Judgement, p. 45)
In other words, at that time the Court would entertain a Charter challenge to amendments if such a case is brought.
4. The federal government has launched an appeal against the decision of Mr. Justice McDonald and is seeking to have the Yukon Court of Appeal reverse the lower court judge and strike out the Yukon action without a trial.
5. At the present time, of course, each of the territories is governed by a legislative assembly that operates on a similar basis to the provincial legislatures. There is a Cabinet system and the Commissioner of each territory, notwithstanding the sweeping powers conferred on him by federal legislation, in practice functions in a manner analagous to that of a supercharged provincial Lieutenant Governor. The legislative and executive jurisdiction of the territorial governments is much less than that of a province and the powers are in any event not "entrenched". In other words, the powers of the territorial governments can be modified or taken away at any time by an ordinary statute of the Parliament of Canada.
6. Mr. Michael Ballantyne, Minister of Justice for the Northwest Territories, told us:
The Legislatures and Governments of the Northwest Territories and the Yukon are not glorified municipal institutions. They legislate in respect of taxation, in respect of the administration of justice, in respect of municipal institutions, in respect of corporations, businesses, trades, industries. These legislatures exercise their authorities over an area as large as India.
However, he added:
there seems to survive in some provincial governments and in the Government of Canada an attitude that the territories are still a colony of Canada.
(Ballantyne, p. 8:49,50)
7. Mr. Willard Phelps, Leader of the Opposition in the Yukon, put the case for further devolution of government powers this way:
... how does an average Yukoner with a valid complaint regarding government ever begin to effectively lobby the huge and remote bureaucracy in Ottawa?... In a country with the size and diversity of Canada, proximity to the people being served is important. As one former Commissioner of the Yukon Territory said: "You can't drive a team of horses with reins 3,000 miles long".
(Phelps submission, pp. 56)
8. The federal government seems to agree that the territorial government should take on more and more responsibilities in relation to local matters as circumstances permit until ultimately provincial status is achieved. But when: the real question is one of timing. Gordon Robertson, former Clerk of the Privy Council, told us that in his view provincehood is at least many years in the future:
The other problem I have seen referred to is that the provision for unanimous consent for the creation of new provinces will make it impossible, or virtually impossible, to establish provinces in the north. I myself do not consider that is important at all. I was commissioner of the Northwest Territories for 10 years. I think I understand quite well the situation in the north, the problems of the north and the difficulties with which they have to deal.
I am perfectly confident that a northern province, a province north of 60 degrees, could not finance on any arrangement that would be acceptable or possible for federalprovincial relations... The grant the northern territories get in lieu of equalization provides a payment to the northern territories that is proportionately far in excess of what any province gets under equalization. And I do not think the circumstances that make the north so different are going to change.
So I do not myself think it is in the realm of reality to think it is important that the possibility of creating a northern province has been made more difficult.
9. In their submissions to the Joint Committee both territorial governments conceded that the creation of a new province would
(2) alter fiscal relations among governments,
and that existing provinces therefore have some justification for demanding unanimity on provincial status in relation to these limited matters. However, they believe that the principle of provincial unanimity does not require that every province should have a veto over other aspects of "provincial status". These are of concern only to the federal government and the territories themselves, such as further devolution of executive and legislative power from the federal government to the territorial governments.
10. The territorial governments pointed out to us that there is ample precedent for creating a province that does not have all of the attributes of existing provinces. When Alberta and Saskatchewan became provinces in 1905, their natural resources were not transferred to them but remained with the. federal government. This was unlike the legal position in the older provinces. This "qualification" on their provincehood remained until the Natural Resource Transfer Agreements were embodied in the Constitution Act, 1930.
11. Indeed the history of Canada shows a patchwork of different arrangements in the creation of new provinces. Section 146 of the Constitution Act, 1867 contemplated the admission of the rest of British North America. In the case of British Columbia, Prince Edward Island and Newfoundland, it was provided that each could be admitted by Imperial Order in Council at the request of the legislature of the particular colony. In the case of the territories of Rupert's Land and the North Western Territory, it was provided that the request would have to be made by the Parliament of Canada. In none of these cases did existing provinces participate in making the decision.
12. In 1870, the procedure established by section 146 was employed to admit the huge territories of Rupert's Land and the North Western Territory to Canada. In the same year, immediately following the admission of the territories, the federal Parliament, by ordinary statute, created the province of Manitoba out of part of Rupert's Land. At that time, the population of Manitoba was 25,228. The Constitution Act, 1871 conferred on the federal Parliament the power to create provinces out of federal territories and gave the federal Parliament full legislative authority over all federal territories.
13. After the passage of the Manitoba Act in 1870, what was left of Rupert's Land and the NorthWestern Territory was renamed the Northwest Territories and, in 1898, in response to the population increase caused by the gold rush, the Yukon Territory was carved out of the Northwest Territories and formed into a separate territory. In 1905, the provinces of Alberta with a population of 73,022 and Saskatchewan with a population of 91,279 were created out of the Northwest Territories and their government was provided for by federal statute. The Yukon and Northwest Territories now have a combined population of about 80,000.
14. In 1949, Newfoundland entered Confederation at the request of the Parliament of Canada. It is suggested that the then Prime Minister of Canada, Mr. Louis St. Laurent, deliberately refrained from consulting the provinces because he feared Quebec might use the opportunity to seek the annexation of Labrador.
15. The territorial representatives acknowledged to the Committee that the "rules of the game" were fundamentally altered by the Constitution Act, 1982 and that their real problem is with the 1982 amendments not the 1987 amendments. By the Constitution Act, 1982 the creation of new provinces, and the extension of existing provinces into the territories, requires the concurrence of Parliament and at least seven provinces having half the population of all the provinces. The proposed change in 1987 would impose a requirement of unanimity. Tony Penikett, Government Leader in the Yukon, told us:
Why are the rules being changed for new provinces? What was wrong with the method by which the present ten joined confederation? Prior to 1982, the door was open to us. Since 1982, it has been shut. Now in 1987, it has been barred.
(Penikett submission, p. 1)
While the imposition of a unanimity requirement makes obtaining provincial status that much harder, even the most enthusiastic territorial witness did not suggest that provincehood could be achieved in the near future, even under the 1982 formula or, for that matter, under the 1871 procedure where new provinces sprang into existence on the sole authority of Parliament. The concern is for the future. It is feared that what was merely difficult will now become virtually impossible.
16. It would be superfluous to repeat here the discussion about northern appointments in Chapter 8 (the Supreme Court of Canada) and Chapter 9 (the Senate). We believe every Canadian should have the opportunity to be appointed to a leading role in national institutions and we have dealt with the need to facilitate the appointment of qualified northerners in those chapters. In this connection we note the observation of Senator Lowell Murray in his testimony on August 4, 1987:
Mr. Chairman, I do not see how citizens are being discriminated against in any way. Citizens of the territories are eligible to be appointed to the Senate, and qualified citizens of the territories are also eligible to be appointed to the Supreme Court of Canada, but the territorial governments do not sit at federalprovincial constitutional conferences, in terms of having a role in the amending formula, for example. The fact of the matter is that their constitutional evolution has not proceeded to the point that they have the status or the powers or privileges of provinces, and I cannot but give that direct answer to your question.
As already indicated, we think provincial governments are unlikely to make it a practice to reach outside their borders to nominate someone from another jurisdiction. Some of their own constituents might see such a gesture as did Maître Fortier, Q.C.:
I deplore, for example, the fact that the Yukon and the Northwest Territories are not granted the right to propose candidates for the Supreme Court of Canada and the Senate. A simple oversight? Would that have been a stumbling block? I do not know.
However, Maître Fortier goes on to add:
My uneasiness in that respect, as well as in respect of certain other points, does not require immediate amendments to the Langevin Accord. The dynamics that led to the 1987 Accord must not be compromised.
17. The Joint Committee is of the view that the legitimate interests of the provinces (equalization payments and participation in the amendment formula) are not necessarily inconsistent with protection of the legitimate expectations of northerners for greater home rule in local matters. Existing provinces are conceded by the territorial governments to have a legitimate concern about the amending formula and possible dilution of equalization payments, but what interest do they have in whether the Yukon government exercises legislative authority under a federal statute, which can be unilaterally altered by Parliament at any time, or under section 92 of the Constitution Act, 1867? The transfer of power to the Yukon would take away some authority from the federal government but not from any of the provinces.
18. We were told by Senator Lowell Murray that at least some of the provinces are extremely jealous of the "trappings of provincehood", and oppose even giving the opportunity to territorial governments to nominate residents as Senators or qualified residents to fill a vacancy on the Supreme Court of Canada.
19. The principle of the "equality of the provinces" is important but it can be carried too far if it imposes artificial and unnecessary constraints on the natural development of an important part of the country and disadvantages the people who live there.
20. As explained in Chapter 9, we think it likely that the Governor General continue to appoint territorial Senators under section 24 of the Constitution Act without provincial participation. This should be clarified.
21. It is further our view that the territorial government should be permitted to nominate qualified judges and lawyers from the territories for consideration for appointment to the Supreme Court of Canada. The fact that this is not contemplated in the proposed section 101C is anomalous and we have not heard any reasonable justification for it.
22. With respect to the more difficult question of accommodating the legitimate interest of the existing provinces without unfairly prejudicing the development of the North, it appears to us that a good deal of work remains to be done on at least the following matters;
(b) a better definition of those government functions that really only involve the people of the North, the territorial governments and the federal government;
(c) consideration of a constitutional structure to permit the continued evolution of the territories in the areas defined in (b) while preserving the unanimity in the matters referred to in (a);
(d) a clearer definition of fiscal and resourcesharing arrangements necessary to support provincialtype government in the North;
(e) consideration of how provincialtype governments in the North would accommodate aboriginal selfgovernment, e.g., whether the aspirations of aboriginal and nonaboriginal northerners could be accommodated in a single government structure in the Yukon and in the Northwest Territories; and
(f) consideration of the best means to facilitate gradual acquisition of provincial-type powers and responsibilities by governments in the Yukon and the Northwest Territories.
It would appear from the evidence that we have heard that not all of these matters have been addressed in the necessary detail to allow decisions to be made by First Ministers at this time.
23. The leaders of the territorial government did not suggest that they believed that the territories were ready for provincial status now. Mr. Tony Penikett, Yukon Government Leader, told us:
The Yukon and the NWT are not, of course, provinces now. Nor do we seek provincial status at this time. Few people in the Yukon and the NWT would argue that we have reached the point where provincial status makes sense. We know keenly our limitations: our small dispersed population, our limited economic base, our underdeveloped transportation system.
(Penikett submission, p. 13)
24. In these circumstances we do not believe it would be justified to recommend rejection of the 1987 Constitutional Accord on the basis of the failure of First Ministers to deal with a highly complex matter that goes well beyond the 1987 Constitutional Accord and that is not ripe for determination.
25. We do, however, recommend that the steps referred to in paragraph 21 be pursued with vigour and that the results of the preparatory work on bringing the northern territories to provincetype status entrenched in the Constitution, be presented to First Ministers no later than April 17, 1990.
26. The two other matters which cause us concern in this connection, namely:
(a) clarification of the appointment procedure for Senators to represent the territories and
(b) a procedure to permit the territorial governments to recommend qualified northern residents for appointment to the Supreme Court of Canada
should be placed on the agenda of the next First Ministers' Conference on constitutional matters in 1988.