The Fulton-Favreau Formula In New Brunswick
William F. Ryan, Q.C.*
The Fulton-Favreau formula was approved by the New Bruns-
wick Legislature without dissenting vote on March 16, 1965.1 The
Honourable Louis J. Robichaud, Premier and Attorney General, in
introducing the resolution said of the formula: “It is not necessarily
perfect, but it is the best formula that thus far ten Attorneys Gen-
eral with the Attorney General of Canada, the Minister of Justice,
and ten Premiers with the Prime Minister of Canada were able to
agree upon unanimously.”‘2 The motion was seconded in a short speech
by the Honourab’e Daniel A. Riley, Chairman of the New Bruns-
wick Hydro-Electric Power Commission. 3 No other government sup-
porter participated in the debate.
The leader of the opposition, C. B. Sherwood, saw in the formula
a possible threat to the authority of the Dominion. “I am not”, he
said, “in favour of the decentralization.., of federal authority when
it is so obvious, Mr. Speaker, that New Brunswick’s future well-
being is closely tied to a very vigorous central government with
aggressive policies for national and regional development. ‘4 Though
neither the Conservative leader nor any of the six other Conserva-
tive members who spoke on the resolution voted against it, each had
criticisms and reservations. The power to delegate authority from
the Dominion to groups of provinces was questioned; it was argued
that the requirement of unanimous provincial consent for amend-
ment of provincial powers would impose a constitutional strait-
jacket; there were technical criticisms of the recommended amending
* Dean of the Faculty of Law, The University of New Brunswick.
1 The operative portion of the resolution read:
“Be it Resolved that the Legislative Assembly of the Province of New Bruns-
wick approve the formula as set forth in the proposed enactment for amending
the Constitution of Canada, and consent to its being brought into force in the
manner proposed, and that a copy of this resolution certified by the Clerk of
the Legislative Assembly be transmitted to the Rt. Hon. The Prime Minister of
Canada.”Synoptio Report of the Proceedings of the Third Session of the forty-
fifth Legislative Assembly of the Province of New Brunswick, session of 1965,
volume 1, p. 372.
2 Ibid., p. 380.
3 Ibid., pp. 380 and 381.
4 Ibid., p. 398.
No. 4]
F.-F. FORMULA IN NEW-BRUNSWICK
procedures; several speakers confessed a lack of technical compe-
tence to debate the intricacies of the formula, and protested against
inadequate opportunity for study.5 Mr. Sherwood wound up for the
opposition by saying: “I have to draw the conclusion that reason-
able men have sat around the conference tables for a lengthy period
of time and have come up with a solution even though it may not
be an entirely satisfactory solution. ‘ ‘6 The Conservatives supported
the principle that Canada should determine its future constitutional
7
changes.
News coverage seemed reasonab:y adequate. The Saint John
Telegraph-Journal, the daily with the widest provincial circulation,
gave editorial support.8
A New Brunswick critic of Fulton-Favreau was George A. Mc-
Allister, Professor of Constitutional Law in the Faculty of Law of
The University of New Brunswick. In a sharply worded messsage
published in the Financial Post,9 he condemned the formula in these
terms:
The repatriation formula as presently conceived should be rejected cate-
gorically. It compounds any reasonable notion of fundamental provincial
rights; it exacts an unwarranted requirement in unanimity; it could preclude
the development of national standaids sought by a preponderance of the
nation or desirable in the context of Quebec.
The delegation proposal is defective in the restricted provincial powers
subject to it. The very absence of a similar restriction of federal powers
is clearly fatal; apart from fragmentation and other possibilities, it
is
unthinkable, for example, that laws touching civil rights and citizenship,
which hinge on federal powers, should not be excepted. The total formula
(and it has other serious defects) should be submitted to critical examination.
Responsibility rests squarely and inexorably with the Prime Minister and
the provincial premiers to provide for that examination and to undertake
their own indispensable reappraisal of their respective responsibilities for
national progress.
The present formula is an arrangement for walking backwards into the
future; it shows in significant areas little regard for Canada as a nation,
for the maintenance of federal principles, or for the role of the central
government.
Public interest in the issue was sparse. Fulton-Favreau came and
went with little impact on the provincial consciousness.
5 Ibid., pp. 381 to 401.
6Ibid., p. 400.
7 Ibid., p. 401.
8 The Telegraph-Journal, September 4, 1964, p. 4.
0 The Financial Post, November 7, 1964, p. 7.
