Read Some Day the Sun Will Shine and Have Not Will Be No More Online
Authors: Brian Peckford
Yours truly,
Cyril Abery
And here is Mr. Penney’s letter to the professors:
10 Inglis Place
St. John’s, NF
A1A 4B7
April 30, 1999
Professors Ted Morton and Barry Cooper
Political Science Department
University of Calgary
Dear Sirs:
Re: November 15, 1999,Article
National Post
Cyril Abery has given me a copy of his letter of April 21, 1999, to you
with respect to the above, which accurately reflects the involvement of the
Newfoundland delegation in the events referred to.
Aside from the issues of fact and the negotiating record set out in Mr.
Abery’s letter, there are two other serious concerns that I have with the
article.
The first is a failure to attempt to contact members of the Newfoundland
negotiating team, such as Cyril Abery or the undersigned, to get the
“first-hand account” rather than rely solely on “other first-hand accounts.”
I would have thought that the only way in which a version of events
can be tested against other versions is to have all
versions available.
The second is the tone, perhaps unintended, of your comment: “Since when
does Newfoundland broker national unity deals?” I read this as an
insinuation that the members of the Newfoundland delegation were either
intellectually incapable of performing such a task, or that we do not have
the necessary status within Confederation to undertake such a role, either
of which is equally offensive.
The Newfoundland delegation played a key role in the entire Patriation
debate, defending the interests of Newfoundland within the context of our
federal system, and the role of the provinces in that system. I am proud of
the part we played, but I am disappointed about the myths which have arisen
about what actually happened and which continue to be supported in articles
such as yours.
Yours truly,
Ronald G. Penney
Thankfully, the two professors responded to Mr. Penney’s letter, one actually
apologizing, sort of. Given that Alberta is often unfairly criticized by the
national media, people from Alberta should not criticize other provinces, and
not specifically Newfoundland, one should note.
University of Calgary
Faculty of Social Sciences
April 30, 1999
Dear Mr. Penney:
Thank you for your letter of 30 April. We appreciate receiving Mr. Abery’s
account and supporting documents. We propose
to undertake
further research and interviews to try to sort out apparent inconsistencies
in the various accounts.
I also want to apologize for the line about Newfoundland brokering unity
deals. It was a cheap shot; similar to the ones Alberta often gets in the
national media. I don’t like them when they are directed at Alberta, so
henceforth I will be careful not to direct them at other provinces.
Sincerely,
Ted Morton
The other letter does not come right out and use the word “apologize.”
University of Calgary
Faculty of Social Sciences
Department of Political Science
May 3, 1999
Mr. Ronald Penney
19 Inglis Place
St. John’s, NFLD
AIA 4L7
Dear Mr. Penney:
Thank you for your faxed letter of 30 April regarding the piece Ted Morton
and I wrote for the
National Post
.
You are, of course, quite correct to insist that we ought to have contacted
all the participants in the original conference. We relied on published
accounts, and Mr. Abery’s notes and other materials he made available were
not published.
Second, there was no intention to cast into doubt the intellectual
resources of the officials of any of the
delegations.
There was (and I speak only for myself) an intention to call into question
the honesty or perhaps the straightforwardness of the prime minister. In my
opinion, he was the most Machiavellian of our prime ministers. Not too long
ago Lloyd Axworthy remarked that he was surprised at the extent of evilness
of the president of Yugoslavia. He clearly underestimated something. I would
submit that the premiers and perhaps their staff underestimated something
with respect to Pierre Trudeau. This is not a matter of intellect (though
Trudeau is very smart) but of integrity. The question of the timing and
significance of Trudeau’s offer of a referendum, for example, has yet to be
explained, at least to my satisfaction.
Perhaps at some future occasion it may be possible to gather together the
participants and compare recollections and interpretations.
In any event, thank you again for writing.
Cordially,
Barry Cooper, FRSC
Professor
There are several things that are of interest to me about this letter. Of
course, there really isn’t an apology, although an acknowledgement that their
research for the article was shoddy given that they failed to contact people who
were actually in the room when the patriation deal was being created. Sadly,
academia feeds off just some facts and a lot of myth and it makes for great
conspiracy theories—lots of articles but poor scholarship. To continue to
advance the proposition of behind-the-scenes manipulation by Trudeau in light of
the evidence of those who actually were participants is really a stretch. And
finally, the so-called “first-hand accounts” phrase has now been clarified as I
mentioned earlier; there was only one account, that of Mr. Romanow, who arrived
on the night of November 4, late and after the agreement had been
completed.
I also responded to the article by writing directly to the
National Post
, who carried it in their April 27, 1999, edition.
Over the years, I have read the views of a number of commentators on the
events surrounding the Patriation of our Constitution. All of them I have
found were either wrong or in some cases incomplete. I kept notes at the
time of this important occasion and in due course I will make them public.
For now, I would like to make a few points concerning the article by Ted
Morton and Barry Cooper ( “Night of the Long Knives: Who Dunnit?”
April 15).
The so-called Peckford Document was prepared by me through the
night of November 4 and presented the next morning at the
breakfast meeting and subsequently to the formal
gathering.
The statement “other first-hand accounts” suggest that
Newfoundland’s role was that of delivering the message, not
creating it, which is untrue. Many of the provincial delegations
discussed through the evening and night various elements that
they thought might be probable compromises.
The statement “‘the Peckford Document’ was decisively
influenced by Romanow, McMurtry, and Chrétien” is untrue. During
that evening and night, ideas being advanced by all the
provincial delegations were discussed, and it was later, in
reviewing the major elements, that the document was
prepared.
The theme of trickery by Prime Minister Trudeau—the theme of
the article—is not how I would characterize the events.
While I agree with Mr. Lougheed that there was no desire
or attempt by the Group of Seven to exclude
Quebec, we should have tried harder to keep Quebec
involved.
A. Brian Peckford
Of course when I say me, I really mean the Newfoundland Delegation,
specifically Minister Gerald Ottenheimer, Deputy Ministers Cyril Abery and
Ronald Penney, and adviser Cabot Martin. A document was prepared by us and
presented on the evening of November 4, first to Alberta, Saskatchewan, and
British Columbia, and then later that evening to PEI and Nova Scotia. The PEI
attorney general contacted Manitoba. The document was finalized, with some
adjustments, in the early morning (1: 00–1: 30 a.m.), presented to eight
provinces at breakfast (New Brunswick and Ontario were not a part of the group),
and then approved by the breakfast meeting to be presented by me to the full
conference later that morning. It was and formed the basis of the Patriation
Agreement.
I was out of the country in February when an article appeared in the
Globe
and Mail
headlined “Senior U. S., Canadian judges spar over judicial
activism.” In that article Judge Binnie made some incorrect remarks about my
position during the constitutional meetings of 1980 and 1981. Luckily, a person
saw the article and sent it to me. I wrote Judge Binnie the following letter on
March 20, 2007:
The Honourable Mr. Justice William Ian Corneil Binnie
Judge
Supreme Court of Canada
301 Wellington Street
Ottawa, Ontario
K1A 0J1
Dear Mr. Binnie:
In an article ( “Senior U. S., Canadian judges spar over judicial
activism”) in the
Globe and Mail
newspaper of Saturday, February 17,
2007, one paragraph says:
Judge Binnie cited an attempt by former Newfoundland Premier Brian
Peckford in the early 1980s to have his province’s right to control
fisheries written in the constitution. When former Prime Minister Pierre
Trudeau asked how he could possibly balance fish against human rights,
he quoted Mr. Peckford as saying, “That’s your problem.”
Now, of course I do not know if this is an accurate quote by the paper of
what you said. However, I have not seen any comment to the paper from you
denying this quote. I assume it to be correct, therefore, and know that if
in fact this is wrong you will be sure to set matters straight.
I have no recollection of us ever meeting. Although you might have been
amongst the bevy of counsel at the federal-provincial Patriation talks, I do
not recall your presence.
I find it very disturbing that you would use such a quote from one party to
an alleged happening without knowing the views of the other party referenced
in the quote. It just might be that the second party may not agree, either
having a totally different version of the conversation or indicating that
such a conversation never occurred.
There were many things said in the heady days of the constitutional
Patriation talks of the early 1980s, in many formal and informal
meetings.
However, at no time do I remember such an exchange with the prime minister
of the time. It was not uncharacteristic of the prime minster to “set up”
such a question to try and make something that was contained in the question
a fact.
For example, at one public forum carried by
national TV, the prime minister had tried to link my constitutional position
with Quebec’s because I had voiced some support for an unrelated Quebec
social program.
I do remember Mr. Trudeau saying that fish swim; hence, it is all about
national and international matters and provincial involvement is out of the
question. Whereupon I retorted, “yes, from offshore Newfoundland to inshore
Newfoundland!” Sometimes legal niceties get in the way of real things.
And if I had to quote some of the things I remember that were said in these
meetings in the cut and thrust of debate, which, I suspect, occurs among
judges in the consideration of a decision, and to say that such comments
represented a given position, then the chance of fruitful debate and
reaching a consensus would be small indeed.
We all knew that it was not a question of a particular federal-provincial
right versus “human rights.” Rather, we understood that the prime minister
and many other parties at the table were desirous of adding to the
constitution in the Patriation process, some advocating a Charter of Rights
and Freedoms and others, at the same time, requesting consideration of other
matters to be changed or added to the Constitution. There were provinces
that were desirous of changes/additions as it related to non-renewable
resources, for example, resulting in the addition of Part V1, Section 92A.
There were other issues like regional disparities and equalization (Part 3,
Section 36) and aboriginal rights (Part 2, Section 35) that were
added.
But even more to the point of the quote, that Newfoundland was entertaining
some kind of strategy of bargaining various rights, let me quote from a
Government of Newfoundland public document dated August 18, 1980, entitled
“Towards the Twenty First Century—Together: The Position of the Government
of Newfoundland Regarding Constitutional Change”:
The entrenchment of democratic rights and
fundamental freedoms is a means of giving explicit constitutional
recognition to the values which have served Canada well. Newfoundland,
therefore, supports a Charter of Rights which will entrench the
democratic and fundamental freedoms of Canadians. (p. 9)
No ifs ands or buts, no bargaining! This was 1980, long before the meetings
and debates among the first ministers took place that led to
the 1982 Constitution Act. So contrary to bargaining rights, the province
was clear from an early date on the Charter, and the federal government had
this document.
It is true that Prime Minister Trudeau was agitated with tiny Newfoundland
vociferously arguing for a realignment of powers in Fisheries, a more
balanced approach to the management of the resource between the two levels
of government. I mean, it is one thing for a number of the provinces to be
arguing for strengthening the Non-Renewable Resources provision, but
Newfoundland on Fisheries and more balanced and joint decision making? That
was quite another! How dare they? It sort of took him off his game plan and
made him cranky. And, of course, add to that the fact that we were seeking
some fairness in hydro transmission and had just discovered oil offshore
that we were saying should be treated the same as if it was on land, and you
have the makings of an exasperated prime minister whose real interests were
Patriation and the Charter. He knew there would be trouble on his western
flank, but on his eastern flank too?!
This leads me to the other equally disturbing part of the quote where you
say I was trying “to have his province’s right to control fisheries written
into the Constitution.” It is hard not to read this as you saying that the
Province was
looking to control the fishery. As you can
tell from the above considerations, the Province was looking for more say
over fisheries matters—a sharing of responsibilities, not control.
The 1980 document already referred to provides a full description of the
Province’s position. It is detailed and too lengthy for this letter.
However, some points must be quoted, all from page 18: “The Government of
Newfoundland is not requesting exclusive provincial legislative jurisdiction
relating to Fisheries. Rather, the proposal requests a sharing of the
legislative jurisdiction.”
Secondly, “the Government of Newfoundland recognizes the legitimate role of
the federal government in many aspects of the fisheries and the degree of
provincial involvement required would not undermine this legitimate federal
involvement.”
And thirdly, “the proposal made would not ‘balkanize’ the fisheries or lead
to over-fishing because the federal government would retain full authority
regarding the conservation of fish stocks.”
I now realize the difficult job of historians, and one of the reasons I
find it necessary to write this letter. While we all know that there is a
time to advance one’s own particular agenda, and that sometimes it may
infringe upon how some view what is the “larger good,” I can assure you that
those involved in the Patriation process knew and understood the local,
provincial, and national perspective and how such weighty matters are an
evolving process and why, in the end, a deal was struck. In my particular
case, even without any changes on fisheries, in the last hours the
Newfoundland delegation that I led made two written proposals that assisted
in the final successful outcome.