Read Some Day the Sun Will Shine and Have Not Will Be No More Online
Authors: Brian Peckford
No answer was received from the prime minister to this request.
Further frustrating our efforts at this moment was the other matter referred to
in the telexâthe SIU case. This case before the court would necessitate the
jurisdiction of offshore being considered, up to then not before the courts. The
federal government's refusal to agree with us, to have this court case deferred
until negotiations were completed, blatantly demonstrated that the federal
government was really not serious in dealing up front with us on the
issue.
Obviously, we were left with no choice but to take serious action; hence, on
February 18, 1982, we referred the case of jurisdiction to the province's
highest court, the Court of Appeal.
We had to show just how serious we were on this, and we held out hope that such
an action may put sufficient pressure on the federal government that they would
return to the negotiating table. But the federal government went about its
business of undermining our position with two federal government actions quickly
following one another: first, on March 2, 1982, the federal government and the
Government of Nova Scotia signed an offshore deal; then on March 5, 1982, the
federal government requested that we agree to suspend our Court of Appeal
reference and go directly to the Supreme Court of Canada for a decision. We
immediately rejected this request. Our minister of Justice, Gerald Ottenheimer,
responded to Jean Chrétien, then federal Attorney General for Canada.
The Government of Newfoundland cannot accept your proposal that the
question referred to the appeal division of the Supreme Court of
Newfoundland be referred immediately to the Supreme Court of Canada. The
effect of acceding to your request would be to pre-empt the appeal division
of the Supreme Court of Newfoundland of the opportunity of giving its
judgment on this matter.
The Government of Newfoundland is of the firm conviction
that the people of Newfoundland have the right to a decision by the highest
court of the province on a matter so vital to the future of the province.
Furthermore, the government is of the opinion that the Supreme Court of
Canada should have the benefit of the judgment of the appeal division of the
Supreme Court of Newfoundland before it renders its decision.
These were uncertain times, to say the least, and this tussle over offshore
resources was intensifying. A lot had happened in three short years: the
Constitution talks, the court references concerning the Churchill Falls
contract, and the economic recessionâall bearing down on a very financially
fragile government.
We knew by now that two of our three big issues were in jeopardy: our aim to
get greater fisheries through the constitutional talks had failed, and the court
references relating to the infamous Churchill Falls contract were
problematic.
However, our third issue, the offshore, was still in play. Given the federal
government's recent blatant moves to pressure us, I had to do something to
strengthen my hand and keep the momentum in the face of this formidable
adversary.
I called an election on April 6, 1982, to ask for a new mandate to negotiate
regarding the offshore. The people responded, giving me and the party a great
victory and increasing our majority in the 52-seat legislature from 33 seats
to 44 seats. Surely this mandate would affect the federal government's approach
and bring them back to the negotiating table.
Well, no!
The federal response was swift. On May 19, 1982, they unilaterally referred the
offshore issue to the Supreme Court of Canada. The same day I responded: “The
Government of Newfoundland is shocked beyond comprehension by this arrogant and
cowardly act.” I went on to refer to the January 25 proposal that was never
answered.
Given that the federal government refused to respond to our
January 25 proposal and the fact that it was unclear what answer the court
would give to the SIU case earlier this year, this government embarked upon
two specific courses of action to protect the vital interests of the people
of Newfoundland and Labrador: 1) we referred the matter to the Supreme Court
of Newfoundland, 2) we called an election on the issue to get the views of
the people of the province.
We now find that the Government of Canada is blatantly ignoring these two
actions. Never before has a federal government ignored the legitimate rights
of the Supreme Court of a province to adjudicate on a matter of such
importance to the province. Never before has a federal government so
arrogantly dismissed the expression of opinion of a people of a province on
an issue which so greatly affects them.
We appealed to the legislature for a unanimous resolution condemning the action
of the federal government and to call on them to return to the negotiating table
based on the proposals put forward by the province. The legislature passed the
resolution unanimously. Additionally, we cancelled a ceremony celebrating the
new Constitution and called for a “day of mourning.” We also called on our five
Liberal MPs and our senators for their support, and also the two federal party
leaders, Mr. Clark and Mr. Broadbent.
A note of some significant merit at this time was the support of Liberal
Senator Eric Cookâno small decision for a man who had been a Liberal all his
life. Bill Marshall had this to say on the matter:
By far the sharpest criticism was levied by Senator Eric Cook in his
address to the Senate several days after the federal reference when he
resigned from
the Liberal caucus over it, and sat throughout
his remaining days in the Senate as an Independent. He scorned Prime
Minister Trudeau and Justice Minister Chrétien for acting with “great
impropriety” and their show of “shocking discourtesy and complete lack of
statesmanship.” He pointed out that the move dealt “a severe blow to the
public perception of the Supreme Court of Newfoundland,” whilst observing
if these two lawyers had had any real experience of practising before the
courts, they would have had second thoughts before treating with contempt
one of the Superior courts of the nation.
Not unusual, the national media had a hard time understanding Newfoundland's
position, even though it was put in writing in the clearest terms; they seemed
to favour the federal position, which was factually contradictory. Puzzling
indeed!
This lack of understanding is perhaps best exemplified by the contents of the
most watched national TV news show of the day,
The Journal
, with Barbara
Frum. Ms. Frum interviewed Mr. Chrétien (no one from the Newfoundland side was
present, of course) concerning the offshore matter. But the facts were not
provided, forcing me to write Ms. Frum on May 21, 1982:
You failed to mention in your questioning two points:
You left unchallenged Mr. Chrétien's contention that Newfoundland went to
court first. For the record, the federal government enlarged the SIU case
before a federal court to include ownership of the offshore, forcing
Newfoundland to refer the matter to the Supreme Court of Newfoundland.
Secondly, no mention was made of our January 25Â proposal that was presented
to the federal government, to which no reply has yet been received. If a
prompt resolution is what the federal
government wants,
negotiation using this proposal can be much quicker than court
reference.
Meanwhile, the Nova Scotia agreement and the federal government's unilateral
reference to the Supreme Court kept the pressure on us notwithstanding our great
election victory.
There were many who thought we should accept a Nova Scotiaâ type deal. However,
we refused to accept a deal that did not reflect real management and revenue
sharingâand that was the Nova Scotia deal.
On July 2, 1982, I wrote the prime minister on the offshore following up on a
discussion I had with him on June 30 at a First Ministers Conference on the
economy at Sussex Drive.
I pointed out to him the major issues consisted of real management and revenue
sharing. I went on to explain why the Nova Scotia deal was inadequate and sought
a meeting with him to see if we could come up with a basis to start negotiations
again. In the letter I said, “In order to determine if the basis of a settlement
is possible, I propose that we meet privately, without publicity, to pursue this
matter in the very near future.”
The prime minister's answer was disappointing, trying to claim that I was
softening my approach to the permanence issue, and deflecting the request for a
meeting between us. I responded and still requested a meeting between us for
July 10, 1982.
Without a definite meeting date with the prime minister, I nevertheless agreed
with the prime minister's suggestion of having the Energy ministers meet and
review the issue. This occurred over the next few months, culminating in a
September 2, 1982, federal proposal, which failed to address our positions of
management and revenue sharing. I then met with the prime minister to ascertain
whether this was the federal government's final position.
On October 6, 1982, I reported to the people of the province in a province-wide
address:
It is with deep regret that I report to you that we did not resolve the
basic differences that would make
possible an agreement that
was fair and reasonable to Newfoundland. The federal government is
determined and will not change its position that it alone must manage and
control the offshore. The federal government will not sign an agreement that
will give Newfoundland a real say in managing these resources. The federal
government insists that Newfoundland would only have an advisory role.
Sadly, it had taken seven months for the federal government to respond to our
January 25 proposalâa response that was almost a total rejection of our
reasonable positions, and of even greater import the response was contrary to
the prime minister's earlier public statements.
It was always a mystery to me how five provinces could manage their oil and gas
resources, and Newfoundland, once a self-governing dominion of the Commonwealth
who brought the oil and resources with them into Confederation, was then to be
refused the same management rights. We then suspended all talks with the federal
government on this issue.
Needless to say, the federal government put on a powerful PR campaign to sell
its proposal in the province, touting erroneously that we would get 100% of the
revenues but conveniently ignoring the equalization revenues we would lose at
the same time.
These were tough and difficult moments both for the Cabinet and the caucus. You
knew what some were no doubt thinking and whispering. Had we gone too far?
Should we now get the best deal we can? Is the Nova Scotia deal that bad? It was
natural that “battle weariness” would settle in. It was at this time that we
took a poll to gauge the mood of the people on the issue. What resulted was
something like this: “You have fought the good fight; it is time to settle, get
the best deal you can, and sign.” I don't know now how many people I shared this
with at the time, but I am sure it was only a few. It would have been political
dynamite to have shared such information widely.
Then, prominent voices began to take issue with our ongoing
offshore position. In October the Opposition Leader, Stephen Neary, rejected
our position while remaining ambiguous on whether he supported our
January 25 proposal or the federal proposal of September 2. Then there was
prominent businessman Harry Steele, part-owner of the regional airline Eastern
Provincial Airways, blaming the bad economic situation of the time on the
impasse over offshore, even though Nova Scotia, which had signed a deal, saw its
unemployment rate rise as much as Newfoundland's, and Canada's rose by even a
larger amount. And then there was a new publication of the time called “This
Week,” which criticized the government for issuing pamphlets explaining the
offshore proposals.
Late fall of 1982 saw the prime minister shuffle his Cabinet; lo and behold, we
got a new federal Energy minister, Jean Chrétien. Very soon he began making
positive verbal comments about the offshore, indicating that there was federal
flexibility and that he thought a deal could be forged between the two
governments, one that could be different than the Nova Scotia agreement. Of
course, we were very skeptical given the recent history and, therefore,
approached these new federal statements with great caution.
The pressure was enormous for the province to get a deal, and now here was the
federal government again, making these so-called positive noises. It was
decided, therefore, that Mr. Marshall and Mr. Chrétien would meet to explore
whether there were grounds to begin serious bargaining. In a bizarre twist, Mr.
Chrétien insisted from the start that these talks would not be a formal exchange
of written positions; rather, the two ministers would talk and just keep notes.
In an unpublished paper he had written giving his recollections on the talks
leading up to the Atlantic Accord (and which he shared with me), Bill Marshall
explains:
The second overt sign of Trudeauite aversion to confirm in writing federal
seriousness of intent in negotiations came from Jean Chrétien when talks
resumed following him replacing Marc Lalonde in December of 1982. We had
been lured into the
second round on the promise of a deal
different than the one accepted by Nova Scotia. At the outset of the
Chrétien talks, I was not only assured the promise would be fulfilled, but
also led to believe our revenue and management aspirations could be fully
accommodated.