OTTAWA — When the Supreme Court rules next year on whether or how the Senate can be reformed or abolished, Canada’s territories could find themselves shut out of the decision.
The Constitutional amending formula at the heart of the Senate case — which requires unanimous support of all provinces or consent of seven provinces representing 50 per cent of the population — does not give Nunavut, Yukon or the Northwest Territories a voice when it comes to changing the document that outlines how Canada is governed.
Counsel for Nunavut and the Northwest Territories appeared before the Supreme Court in November to argue the territories need to be consulted on decisions of Senate reform or abolition. But because Constitutional amendments are involved, such consultation isn’t a given and territorial governments will not get to vote on issues surrounding the Senate’s future.
It’s a reality that rankles Northwest Territories Premier Bob McLeod.
“All Canadians, including those in the Northwest Territories, should have the opportunity to be heard,” he said. “The Northwest Territories should be dealt with as a province.”
McLeod said that “in the interest of fairness” the constitutional amending formula should eventually be changed to give territories — which are gaining province-like powers under devolution — the same clout as provinces in constitutional decisions. But he acknowledges this isn’t likely any time soon.
“It would be hard for a territory of 45,000 people to get all the provinces and Canada to re-open the Constitution. We would have to get a lot of support, we’d have to do a lot of lobbying.”
The Constitution assumes Parliament represents the interests of the territories in constitutional decisions. But in the matter of the Senate, the territories believe the Senate is an important institution that allows northern issues to be brought to Ottawa while the federal government has grown frustrated with the scandal-plagued institution and argue it can be abolished without support of all provinces.
“Talk of abolition, which is the extreme solution being proposed by some provinces, would be disastrous for the three territories because their representation in Parliament would be cut in half from two to one voice in each territory,” said Nunavut Senator Dennis Patterson.
Patterson, who was premier of the Northwest Territories in the early 1980s when the Canadian Constitution was patriated, remembers being “very upset” when the territories weren’t included in the amending formula. He said the Northwest Territories launched an “aggressive campaign” to have the amending formula changed, but that never happened and the issue has lain dormant for decades.
Despite this, Patterson is convinced the territories will be included in upcoming decisions on the Senate’s future.
“I am not too nervous about the amending formula ever actually being employed to the territories detriment,” he said.
Patterson argues that territorial involvement in drafting the 1992 Charlottetown accord — a package of proposed constitutional amendments that was ultimately defeated in a public referendum — has set a convention of territories being involved in constitutional decisions.
But David Schneiderman, a constitutional law expert at University of Toronto, said things aren’t that simple. Constitutional conventions don’t “arise instantaneously” and behaviours need to be repeated over time to be considered constitutional conventions.
“If the feds want to consult the territories before they pass a resolution in Parliament amending the Constitution, they of course can do that and probably should do that. But to say that there’s a legal requirement of consultation is another matter,” he said.
Schneiderman said he doubts the Supreme Court will mandate that territories be consulted in constitutional change because it’s already so difficult to amend the Constitution and the justices will be reluctant to put more impediments in place. But the government could still consult territorial governments if it chooses to.
On amending the constitutional amending formula to include territories, Schneiderman said it certainly won’t happen in his lifetime because of how difficult it is to get provincial agreement on constitutional amendments and because the territories don’t have the power to call for constitutional change.
“They’re not actors, relevant actors – they can’t even trigger the amending formula. The feds or the provinces have to pass a resolution calling on everybody else, all the other relevant actors, to approve an amendment,” he said. “It’s just impossible.”
The Supreme Court of Canada heard arguments in November about what degree of provincial and territorial consent is needed for Senate reform or abolition. A ruling is not expected next year or in early 2015.
Original Article
Source: canada.com/
Author: Andrea Hill
The Constitutional amending formula at the heart of the Senate case — which requires unanimous support of all provinces or consent of seven provinces representing 50 per cent of the population — does not give Nunavut, Yukon or the Northwest Territories a voice when it comes to changing the document that outlines how Canada is governed.
Counsel for Nunavut and the Northwest Territories appeared before the Supreme Court in November to argue the territories need to be consulted on decisions of Senate reform or abolition. But because Constitutional amendments are involved, such consultation isn’t a given and territorial governments will not get to vote on issues surrounding the Senate’s future.
It’s a reality that rankles Northwest Territories Premier Bob McLeod.
“All Canadians, including those in the Northwest Territories, should have the opportunity to be heard,” he said. “The Northwest Territories should be dealt with as a province.”
McLeod said that “in the interest of fairness” the constitutional amending formula should eventually be changed to give territories — which are gaining province-like powers under devolution — the same clout as provinces in constitutional decisions. But he acknowledges this isn’t likely any time soon.
“It would be hard for a territory of 45,000 people to get all the provinces and Canada to re-open the Constitution. We would have to get a lot of support, we’d have to do a lot of lobbying.”
The Constitution assumes Parliament represents the interests of the territories in constitutional decisions. But in the matter of the Senate, the territories believe the Senate is an important institution that allows northern issues to be brought to Ottawa while the federal government has grown frustrated with the scandal-plagued institution and argue it can be abolished without support of all provinces.
“Talk of abolition, which is the extreme solution being proposed by some provinces, would be disastrous for the three territories because their representation in Parliament would be cut in half from two to one voice in each territory,” said Nunavut Senator Dennis Patterson.
Patterson, who was premier of the Northwest Territories in the early 1980s when the Canadian Constitution was patriated, remembers being “very upset” when the territories weren’t included in the amending formula. He said the Northwest Territories launched an “aggressive campaign” to have the amending formula changed, but that never happened and the issue has lain dormant for decades.
Despite this, Patterson is convinced the territories will be included in upcoming decisions on the Senate’s future.
“I am not too nervous about the amending formula ever actually being employed to the territories detriment,” he said.
Patterson argues that territorial involvement in drafting the 1992 Charlottetown accord — a package of proposed constitutional amendments that was ultimately defeated in a public referendum — has set a convention of territories being involved in constitutional decisions.
But David Schneiderman, a constitutional law expert at University of Toronto, said things aren’t that simple. Constitutional conventions don’t “arise instantaneously” and behaviours need to be repeated over time to be considered constitutional conventions.
“If the feds want to consult the territories before they pass a resolution in Parliament amending the Constitution, they of course can do that and probably should do that. But to say that there’s a legal requirement of consultation is another matter,” he said.
Schneiderman said he doubts the Supreme Court will mandate that territories be consulted in constitutional change because it’s already so difficult to amend the Constitution and the justices will be reluctant to put more impediments in place. But the government could still consult territorial governments if it chooses to.
On amending the constitutional amending formula to include territories, Schneiderman said it certainly won’t happen in his lifetime because of how difficult it is to get provincial agreement on constitutional amendments and because the territories don’t have the power to call for constitutional change.
“They’re not actors, relevant actors – they can’t even trigger the amending formula. The feds or the provinces have to pass a resolution calling on everybody else, all the other relevant actors, to approve an amendment,” he said. “It’s just impossible.”
The Supreme Court of Canada heard arguments in November about what degree of provincial and territorial consent is needed for Senate reform or abolition. A ruling is not expected next year or in early 2015.
Original Article
Source: canada.com/
Author: Andrea Hill
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