Cameron – Territories and Senate Reform

Our Yukon correspondent, Kirk Cameron, on Senate reform and why the territories and Aboriginal peoples deserve a seat at the constitutional table.

Before the Supreme Court of Canada is the question of whither the Senate… The federal government has asked that Court to bring some clarity to a number of critical questions that could very well result in fundamental altering of our national institutional framework: can Parliament set rules for election of Senators; can Parliament unilaterally set term limits for Senators; can Parliament unilaterally remove the archaic requirement that Senators own $4,000 in property in the Province (territory) for which they have been appointed; and, not to be forgotten, can the Senate be abolished using the Constitution’s 7/50 amendment rule?

All questions (perhaps with the exception of the $4,000 non-issue) are most interesting on their face, but there are a couple of other intriguing questions that have been put before the Court through interventions by two territories (the Government of the Northwest Territories and the Government of Nunavut) and one member of the Upper House, Senator Serge Joyal (Quebec).

Regarding Senate abolition, the GNWT argued that neither a 7/50 amendment (Parliament plus the legislatures of 7 provinces holding 50 % of the population of Canada must support a Constitutional amendment) or unanimous consent of the provincial legislatures to abolish the Red Chamber are sufficient. The position the NWT brought before the learned Justices is that the federal government has a responsibility to “consult, consider and represent” interests of NWT citizens, and one presumes that NWT would agree that this should likewise apply to the other two territories (NWT factum).

Senator Joyal added an additional “wrinkle” to the abolition question by arguing that unanimous consent is not enough given the very unique relationship between Aboriginal peoples of Canada and our Constitutional framework; they, too, must be engaged in the process of consent in some manner.

It is hoped that the Supreme Court of Canada gives some careful consideration to these two arguments. I have suggested elsewhere that the territories have a constitutional status within our nation that elevates them beyond just “departments of the federal government”, which in the early days of the history of the territories one could argue they were. They are nascent provinces.

And, if you don’t agree with me, take a read of a couple of territorial Supreme Court rulings where the same conclusion is reached. In Policy Options (March 2000) “There is a northern Crown” (by yours truly…) I note that “In 1986, the Yukon Supreme Court stated that the Yukon is not a “department of the federal Parliament, or of the federal government,” and it went on to refer to the Yukon as an “‘infant province’ with most but not all the attributes of a true province.” Complimenting this Yukon Supreme Court observation, the article focuses on a decision of the Supreme Court of the Northwest Territories (January 14, 1999, Ruling of the Supreme Court of the Northwest Territories between Donald Morin and Anne Crawford, Conflict of Interest Commissioner for the Northwest Territories, Ruling on a preliminary jurisdictional issue as to the applicability of parliamentary privilege to these proceedings) wherein Justice Vertes reasons that the “Assembly has a history and tradition. It looks like, acts like, and has all the attributes of a ‘legislature’ in the traditional sense of that term.” He goes on to say “it has long been recognized that the territorial assemblies, whether of the Northwest Territories or the Yukon, are not acting as agents or delegates of the federal Parliament when legislating within their sphere of powers. In this sense they have a sovereign-like legislative character” (p. 18).

One more small, but illuminating point here is, consistent with a vision of territories as “provinces in the making”, that in 1975 Parliament gave to Yukon and the NWT (1999 for Nunavut) one Senator each!

One compelling argument brought by Prince Edward Island to the Supreme Court of Canada in the reference case is the notion that the Senate is the “provinces’ house”. Mr. Spencer Campbell, representing PEI, stated that “[we] feel that our house is under renovation without our consent. We feel like we have something going on and we have no say or control if this interpretation is approved.”

So, if we agree that the territories are something more than just creatures of the federal government, something akin to provinces in the making, and that the Senate is more the provinces’ house bringing regional perspective to the business before Parliament, then the question brought to the Supreme Court by GNWT and GN must be given careful attention by the Justices.

And, then there is Senator Joyal’s observation regarding Aboriginal involvement. Considerable effort was expended by Canada’s Aboriginal groups in arguing their way into the Canadian constitutional framework (witness Constitution Act, 1982, s. 35!). They also argued successfully for greater changes that, if either the Meech Lake Constitutional Accord (1987) or, moreso, the Charlottetown Constitutional Accord (1992) had been approved, would have meant increased involvement and recognition for Aboriginal peoples and self-government within the Canadian Constitutional fold. In addition, for many years now the Supreme Court has, as have lesser Courts, given great care and attention to grievances brought to it by Aboriginal peoples in Canada. One can, therefore, expect that the Court will give some thought to the argument made by Senator Joyal.

All in all, we find ourselves at a most interesting juncture in Canadian Constitutional history. With thoughts of removing the one regionally-focused body, the Senate, from the national institutional framework, and skewed representation in the Commons due to the “first past the post” electoral system, we are potentially moving further away from a national framework that Canadians from all across Canada (including the North) see as representing their interests.

Until we clearly understand the far reaching implications of our actions, let’s leave the Senate alone. And, if we do get into the “great debate” that may ensue depending on the outcome of the Supreme Court’s deliberations, we can only hope that the three territories and our aboriginal population will have a significant role in that debate. We can only hope.

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