On January 19, 2016, the Honourable Maryam Monsef, Minister of Democratic Institutions, announced the appointment of first members of the non-partisan panel that is charged with the task of coming up with qualified candidates for Senate vacancies. The panel, which has three federal representatives, two Ontario provincial representatives, two Quebec provincial representatives and two Manitoba provincial representatives, is supposed to come up with five qualified candidates for each Senate vacancy for those three provinces. The recommendations are not binding on the Prime Minister who ultimately submits his choices to the Governor General. The nine members of this initial panel are all eminently qualified. But there is criticism of the process. Some of the criticism has merit.

Last year, when Prime Minister Trudeau announced that he would press ahead with his plans for a non-partisan advisory panel to assist in choosing candidates for the Senate, BC’s Premier, Christy Clark, immediately slammed the proposal. She retorted that BC would not participate. On the same day as the Prime Minister’s announcement, she tweeted that the “Senate has never represented BC’s interests at the national level”. Later, she issued a statement: “[The proposed] changes do not address what’s been wrong with the Senate since the beginning. It has never been designed to represent British Columbians or our interests”.   She has argued that BC is grossly under-represented, only getting 6 seats in the 105 seat Senate, and Mr. Trudeau’s changes would only serve to the Senate to think that it is somehow legitimate and that this would allow it to think that it could make decisions on behalf of the country.  She stated that the Senate does not have that power and should not have it.

Premier Clark is both right and wrong. Furthermore, in my opinion, British Columbia is not the only party that should be seeking structural changes to the Senate. Specifically, I believe that the indigenous peoples of Canada should be included in any discussions involving revisions to the Senate.

British Columbia’s interests are not adequately represented in the Senate at present

Premier Clark is absolutely right about British Columbia being grossly underrepresented today. It has 4.5 million residents or over 13% of the country’s total population. It is the only provincial jurisdiction that is sandwiched between the Pacific Ocean on the West and, after passing over successive mountain ranges, the Rockies on the east. BC arguably constitutes within Canada its own region. Notwithstanding this unique status, BC has only 6 out of 105 senators. Compare that with the situation of the Atlantic provinces. The four Atlantic provinces with an aggregate total of 6.9% of the population hold between them 30 Senate seats (Nova Scotia and New Brunswick 10 each, Newfoundland 6 and PEI 4). Thus, looking at the Senate through the current regional representation lens, Ms. Clark is correct – BC’s interests are not being represented adequately in the Senate.

The Senate does have the power and the duty to make decisions for the country

That being said, Premier Clark is wrong on several fronts. First, she is wrong when she says that the senators do not have the power to make decisions on the part of the country. To the contrary, the senators not only have a power but they have a constitutional duty to provide a second sober thought to legislative instruments coming from the democratically elected House of Commons. When they see amendments that they think are appropriate or necessary, they should amend that the bill and send it back to the House. This has happened many times over almost every parliamentary session. Moreover, if senators consider a legislative bill to be improper or perhaps unconstitutional, the senators have the right and the power to veto such legislation. This has happened in the past as well.

The Supreme Court of Canada has emphasized that the Senate has this constitutional role in several decisions. Premier Clark cannot realistically expect the members of the Senate to ignore the constitutional obligations that they have solemnly promised to uphold. Thus, we must contemplate a future with a Senate and, unless we constitutionally alter the Senate, one of its roles will be to remain an appointed legislative chamber of second sober thought, a decision-making role that its members will make for the whole country.

British Columbia’s representation in the Senate in the past

Premier Clark is also wrong that BC’s interests have never been represented in the Senate. In 1867, there were only four provinces. Ontario and Québec, then as now the most populous provinces in the federation, each got 24 senators and Nova Scotia and New Brunswick each received 12. When BC first entered Confederation, according to the 1871 census, it had a paltry population of 36,247 souls whereas the national population was counted as being about 3.6 million. So it had about 1% of the national population. Nonetheless, BC was initially given 3 seats out the then 77 seat Senate (Manitoba, another new province, received 2. Nova Scotia and New Brunswick each lost 2 seats, all 4 of which were given over to also newly added province PEI, then about three times more populous than BC).  BC’s representation in the Senate in 1871 was excellent given its then rather meagre population base.

In 1905, Alberta and Saskatchewan were carved out of the Northwest Territories. Initially they were each given 4 senators. But in 1915, the Senate’s seat distribution was reviewed and amended to reflect the then prevalent regional realities. This time, the four western provinces were given 6 senators each. The total number of senators was 96. At the time, according to the 1911 census, the most populous western province was Saskatchewan, followed by Manitoba, then British Columbia and finally Alberta.  Their respective percentages of the national population were 6.8, 6.4, 5.4 and 5.2% respectively, for a total of 23.8%. At the time, their collective allocation of Senate seats (24 of 96 or 25% of the Senate seats) was very representative of and appropriate for their regional heft.

That was 100 years ago. Since then, we have added one more province, Newfoundland and Labrador, and given it 6 senators and allocated one senator for each of the three territories. But the basic Senate architecture has not been touched since 1915.

Two points can be taken from this historical review. One is that in the past, the Senate has been reviewed and restructured over time to reflect the regional interests. The other is probably time to revisit the issue – it has been, after all, a full century since a proper rebalancing has been carried out.

What else needs to be considered if we are tackling Senate structure – First Nation representation in the national legislative decision-making

Over the century since the last major Senate restructuring, Canada has evolved. Certainly the regions of the country have morphed. Ones which were dominant in 1867 such as the Maritimes are less dominant now. Others have emerged and become more prominent such as British Columbia. But there is much more to consider in restructuring the Senate than simply re-jigging the provincial allocations.

Canada also underwent a constitutional transformation in 1982.  One hears often about the Charter of Rights and Freedoms, a constitutional document that has fundamentally changed the relationship between the State on one hand and the individual on the other. Another set of rights were constitutionalized at the same time, namely, the aboriginal rights of Canada’s aboriginal peoples. Unlike the Charter of Rights and Freedoms in which there was an express balancing of governmental interests as against the individual rights and freedoms, section 35(1) of the Constitution Act, 1982 which dealt with aboriginal rights was structured differently. It stated simply:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Since 1982, the indigenous peoples of Canada have increasingly had resort to the courts to give effect to these simple words. Most recently, in June 2014, the Supreme Court of Canada released a landmark decision, Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. The Court relied on the 1982 protection afforded by s. 35(1) when the Court expressly recognized and affirmed the existing aboriginal title of the Tsilhqot’in Nation over a large tract of land in British Columbia. Moreover and most importantly, the Court confirmed that this title included the exclusive right to control and manage the occupation and use of the land. This ruling confirming the aboriginal right to control and manage the lands and their peoples is an express acknowledgement of the aboriginal right to self-govern.

There are hundreds of indigenous peoples across this country. While they have not all proven their aboriginal title as the Tsilhqot’in Nation has now done, there is no doubt that many of them will do so in the future. And these indigenous peoples all have rights to control and manage their lands according, presumably, to their aboriginal laws and customs. Thus, there is effectively a third order of government in Canada, one collectively comprised of the indigenous peoples. But, unlike the provinces and territories, this third order of government has no guaranteed representation in Canada’s national legislative bodies.

What needs to be done to the Senate?

The House of Commons is the body that is supposed to be the democratic voice of the people. It is the body that is supposed to reflect the concept of representation of the population. The Supreme Court of Canada has clearly stated that that is not the role of the Senate. Instead, the Supreme Court has outlined three roles for the Senate.

First, the Court has repeated held that the Senate is supposed to be an appointed body where it plays a role of second sober thought, independent of “the electoral process to which members of the House of Commons are subject” and removed from “a partisan political arena that required unremitting consideration of short-term political objectives”.

As well, the Supreme Court has held that the Senate is also supposed to be representative of the regional diversity of Canada. The Court has stated that “[w]hile representation in the House of Commons was proportional to the population of the new Canadian provinces, each region was provided equal representation in the Senate irrespective of population”.  The Court noted that this “was intended to assure the regions that [the regions’] voices would continue to be heard in the legislative process even though they might become minorities within the overall population of Canada”.

The Supreme Court of Canada has also acknowledged yet a third role for the Senate, namely, that of representing those groups not adequately reflected in the membership of the House of Commons. In the 2014 decision of Reference re: Senate Reform, 2014 SCC 32 the Court observed:

Over time, the Senate also came to represent various groups that were under-represented in the House of Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process…

Thus, there is a natural place to locate the guaranteed representation of the interests of Canada’s indigenous peoples in the central legislative decision-making process – the Senate.

The 1915 version of the Senate no longer reflects the Canada of today. It desperately needs a remodelling. It does not adequately reflect the regions of today. And it does not provide for sufficient representation of Canada’s indigenous peoples.

BC is most properly understood as a region all unto its own. Arguably, so too is Alberta. The Atlantic provinces clearly share some regional interests but that does not justify giving them 29% of Senate seats when they are now but one of perhaps six regions (BC, Alberta, Prairies, Ontario, Quebec, Atlantic). Ontario and Québec probably should not hold almost half of the Senate seats when they are but 2 regions. Of course, the territories must also be adequately reflected in the Senate, the North being Canada’s region of the future.

But we should not stop there. Somehow, we need to give a guaranteed legislative voice to reflect the interests of the third order of government, the indigenous peoples, at the national center. A specific number of seats in the Senate should be allocated to the indigenous peoples of Canada to ensure that their concerns and interests are represented at the central legislative decision-making level. Thus, if asked whether the indigenous peoples should be considered to be treated effectively as another one of Canada’s region, I think that we need to respond “yes”.

How do we achieve this new balancing of the Senate

The Liberal government’s proposals cannot accomplish this sort of structural change. To achieve this sort of architectural alteration of the Senate will mean constitutional talks between the federal government, the provinces and territories and the indigenous peoples. The recent Supreme Court of Canada reference on Senate reform made it clear that formal constitutional amendments will be required. So yes, the big bad constitutional bogeyman will have to be faced. There will have to be some giving and taking, some consideration of the national good over regional self-interests, and a heavy dose of political will. It will be hard. But it will not be impossible to achieve.  As Prime Minister Justin Trudeau has repeatedly said during the election campaign, “a better Canada is always possible”. I think that we should prove him right. Let’s make a better Senate for a better Canada.

I remain,

Constitutionally yours,

Arthur Grant