K. Regional Veto Legislation

Author:Patrick J. Monahan - Byron Shaw

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The operation of the amending procedure has been made significantly more difficult by the enactment in 1996 of the Regional Veto Act.73This Act prohibits any minister of the Crown from proposing a resolution for a constitutional amendment unless the consent of certain provinces has been obtained. The provinces that must consent are Ontario; Quebec; British Columbia; at least two of the Atlantic provinces that have at least 50 percent of the combined population of the Atlantic provinces; and at least two of the three prairie provinces that have at least 50 percent of the combined population of the prairie provinces. Because Alberta at present has over 50 percent of the population of the three prairie provinces, its consent must be obtained in order to satisfy the latter requirement. The manner in which this provincial consent must be manifested is not specified in the Act. Presumably, however, the requirements of the Act should be read in light of the general procedures for constitutional amendments set out in Part V, which require resolutions of the provincial legislatures.

The Regional Veto Act was enacted to fulfil the commitment made by Prime Minister Chrétien during the 1995 Quebec referendum campaign to secure a veto for Quebec over any future constitutional change. The effectiveness of the statute depends on the fact that the approval of the House of Commons is necessary for any constitutional amendment under section 38 or 42. The statute lends this federal veto to the provinces whose consent is required, thus indirectly securing a veto for those provinces.74However, the Act is not an amendment to the Constitution of Canada and, as an ordinary federal statute, is theoretically subject to repeal or amendment by a subsequent Parliament.

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Section 1 of the Regional Veto Act states that it does not apply to constitutional amendments in cases where a province may exercise a veto under section 41 or 43, or where a province has a right of dissent under section 38(3).75Thus, the main effect of the Act will be in relation to amendments under section 38(1) where no right of dissent is permitted. This would include amendments under section 42(1), which mandates recourse to section 38(1), as well as other constitutional amendments where there is no derogation from provincial powers. While such amendments can continue to be enacted with the consent of seven provinces, the effect of the Act is to raise the population requirement...

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