On December 5, 2003 the provincial premiers gathered in Charlottetown to finalize the mandate and structure for the Council of the Federation, a new mechanism designed to improve intergovernmental relations. In order to explore the new Council, the Institute of Intergovernmental Relations (IIGR) at Queen’s University and the Institute for Research on Public Policy (irpp.org) in Montreal have published a series of essays by leading experts on federalism and public policy. The papers are intended for journalists, policy-makers and the public.
A Short Path to Revitalized Federalism
Tom Kent (January 2004)
Counsel for Canadian Federalism: Aboriginal Governments and the Council of the Federation
Frances Abele and Michael J. Prince (November 2003)
Some Personal Reflections on the Council of the Federation
Bob Rae (November 2003)
Getting Things Done in the Federation: Do We Need New Rules for an Old Game?
Douglas M. Brown (October 2003)
The Council of the Federation: From a Defensive to a Partnership Approach | French version | Reply to comments (in French)
André Burelle (October 2003)
The Council of the Federation: Conflict and Complementarity with Canada’s Democratic Reform Agenda
Roger Gibbins (October 2003)
Managing Interdependencies in the Canadian Federation: Lessons from the Social Union Framework Agreement
Harvey Lazar (October 2003)
The Health Council of Canada Proposal in light of the Council of the Federation
Gregory P. Marchildon (October 2003)
Council of the Federation: An Idea Whose Time has Come
J. Peter Meekison (October 2003)
The End of a Model? Quebec and the Council of the Federation
Alain Noël (October 2003)
Quebec and Interprovincial Discussion and Consultation | French version
Claude Ryan (October 2003)
Expanding the Partnership: The Proposed Council of the Federation and the Challenge of Glocalization
Hamish Telford (October 2003)
Intergovernmental Councils in Federations
Ronald L. Watts (October 2003)
Tom Kent (January 2004)
The thesis of this paper is that an elected Senate is an urgent need, too important to remain undone because federal and provincial politicians cannot agree on the constitutional amendment required for full reform. There is another way. If the Prime Minister really wants to reduce Canada’s democratic deficit, he should forgo his patronage power to make Senate appointments. Legislation could provide for federally-organized elections to fill Senate vacancies. The nature of the Senate would be changed quite quickly if the legislation authorized early pensions for present appointees who create vacancies by retiring before – say, up to ten years before – the mandatory age 75.
Senate reform has been long needed, but it is given urgency by the recent decision of provincial and territorial Premiers to establish their “Council of the Federation”, billed to “revitalize the Canadian federation and build a new era of constructive and cooperative federalism”.
That grand purpose requires not one reform but at least two. There is need, certainly, to secure better collaboration among the provincial governments and between them and the federal government. The Premiers’ Council will no doubt help in the first respect. But in relation to national affairs it is, in itself, an assertion of power without responsibility. Federalism will be weakened, not strengthened, unless the Council is soon accompanied by a method of ensuring that effective representation of Canada’s diversities is brought to bear within the internal working of the federal government.
The two needs – better federal-provincial collaboration, more effective democracy within the federal government – are distinct, but frequently confused in one prescription. Some of the fathers of confederation, Sir John A. Macdonald particularly, wanted their new country to be as much as possible a unitary state – like Britain, like France also. They could not altogether avoid the federal model next door, but they made the second chamber of the legislature, the Senate, as much as possible like the British House of Lords – appointed, not elected. The BNA Act gave a nod to the principles of federalism by identifying Senators by province of residence. That was and is all. They are the creatures of Prime Ministerial will, without credentials as democratic representatives of any kind from any place. Those who are somebodies, at least on Parliament Hill, owe that status to their personal qualities, not to geographical identity.
That was the design. The constitution provides no hedging of authority at the centre by chosen representatives of regions. For most of its first century, this peculiarity of Canadian federalism had little practical significance. In the looser politics of those days, federal parties produced regional barons for Ottawa. Saskatchewan needed no voice in addition to Jimmy Gardiner’s. Since 1968, however, we have moved into the era of the political party as a machine obedient to an emperor, to Prime Minister Pierre Trudeau or Brian Mulroney, Jean Chrétien or Paul Martin. Backbenchers may mutter about their constituents’ concerns, but no one thinks that they can (or will, under Mr. Martin) bend party policy on anything that matters to the PMO. Some Ministers may still count as regional bosses in the distribution of patronage, but for little else outside their portfolios. They are anyway depreciated by their numbers in a Cabinet inflated far beyond effectiveness. With Ministers so depreciated and Senators rootless, regional viewpoints have minimal place in the Ottawa process of decision- making.
Public affairs do not tolerate vacuums. If regional vie wpoints are not articulated where federal policy is formed, they will be brought to bear on it from outside. Provincial Premiers have shown themselves increasingly eager and adept in the role. Their publics have come to expect it of them. And federal polit ics have bent with the wind. The weaknesses of opposition parties have magnified Premiers as the federal government’s significant adversaries. The decisive debates on national policy are now less in Parliament than in the public exchanges between federal and provincial leaders. Many commentators have long labeled this executive federalism. Unfortunately, it is no more genuine federalism than it is responsible, accountable democracy.
Federalism is more than the division of jurisdiction between two orders of government. The regional diversities that call for the division call equally for assurance that the diverse viewpoints receive balanced consideration in the making of national policies. For the balance to be real and visible, regional presences need to be directly incorporated within the country’s central institutions. Hence the representative second chamber of other federations. Its absence, the substitution of patronage for election, has always been a flaw in Canada’s constitutional structure. Now, in the circumstances of the twenty-first century, it is developing the look of a fatal flaw. It invites a worsening federal-provincial confusion that increasingly inhibits national policy serving the interests of all Canadians.
The democratic deficit is plani . As long as we are without elected Senators, provincial politicians will assume more power for which they have no democratic mandate. Their elections are fought on provincial, not national, issues. A Premier is elected to run the business of the province, not for his or her views on national affairs. There have been, certainly, Premiers who acted with fully responsible understanding of the national interest. Premiers John Robarts and William Davis of Ontario are two of the conspicuous examples. But their statesmanship is a bonus, not a product of our institutions. It contrasts with the more frequent pressing of particular political interests. It is the democratic deficit in Ottawa, not their own qualifications and mandates, that gives Premiers claim to act as national politicians.
Nevertheless, the claim is now real and will become increasingly effective if Ottawa remains stuck in its present ways. Federal and provincial responsibilities have been becoming more interdependent for decades. Necessity has ruled practice. But attitudes have been slower to change. Executive federalism has been seen as only a modest qualification to the centralization of the war and early postwar years; there would be longer, more contested negotiations, but the feds could always come out on top.
That assumption has been reflected in Ottawa’s frequent take-it-or-leave-it stance. It has become increasingly unproductive. Unless there is reform in Ottawa, and soon, brave words will not save federal capacity for leadership from decline. More and more, policies for all of Canada will be settled by negotiations in which provincial governments have the stronger hand.
This shifting of power has been too gradual for the media to take much notice, but it is likely to continue because it is inherent in the dynamics of an asymmetrical relationship. The asymmetry is that the federal government has more at stake, more to lose politically, than the provinces. Most provinces may be relatively puny in resources, but in the court of public opinion they have the strength of ten. They have only to put an issue on the table, to complain about federal policy or lack of it, and Ottawa is on the defensive. The issue may be in either jurisdiction, but it becomes of national concern, potentially affecting what people think of the federal government, how they will vote next time.
Ottawa politicians, on the other hand, rarely have any significant influence on the internal politics of a particular province, certainly not on the electoral fates of provincialgovernments in general. The disparity in bargaining power is plain. The federal government needs agreement with the provinces. It gets most of the blame if meetings end in disagreement. On most matters most of the provinces have little, politically, to lose. They can just blame the feds at once, instead of spending a little time digesting a federal concession before returning to the attack.
Federal politicians have two ways to counter the superior bargaining strength of the provinces. One is not to bargain, to act unilaterally and talk, if at all, afterwards. That may work on the particular issue. The permanent consequence is the mounting resentment and distrust that makes provincial officials and politicians, almost without regard to party affiliation, ha rder bargainers on the next occasion.
For example, in 1995 the federal government not only made large, sudden cuts in its transfers to the provinces; worse, it unilaterally replaced what had been funding commitments by the arbitrary CHST. The immediate outcome, the ending of federal deficits, was a triumph. But Ottawa’s subsequent dealings with the provinces have been continual retreats. Far from the intended further cutting of transfers, they have had to be largely restored – without, in the play of public opinion, saving the federal politicians from getting much of the blame for medicare woes transferred to them.
The other federal countervail is even more conspicuously short-term than unilateral action. It is money, usually in exchange for what are bille d as provincial concessions. Agreeing to pay more to the provinces enables the Prime Minister to proclaim before the TV cameras his prowess in settling things. Mr. Chrétien did it before the 2000 election and again early in 2003. In fact, he settled nothing. The effect, far from keeping the provinces bought, has been to sharpen their appetites for the next occasion.
The accumulating consequence is to weaken the role and the resources of the federal government. There was a period, in the aftermath of war-time centralization, when this was the right direction of change. It has now gone dangerously far. It is continuing in a period when clear national leadership is crucial to sustaining Canadian identity in an ever more interdependent world. It is a trend th at must now be arrested. It can be, if the new Prime Minister is prepared to fight another deficit: the lack of democracy within his own party.
Mr. Martin’s path to power has as yet only strengthened the public image of the Liberal party as a top-down, tightly controlled, centrally directed Ottawa machine. That image will not be changed by picking a few names from peripheral provinces, a Frank McKenna or whoever, to come from safe ridings to lubricate the machine. They may secure some patronage goodies for their areas. They will not remove the well-based perception that, in the making of major policies, the viewpoints that count are those of the centre, of Ottawa with Toronto and Montreal.
There is, however, a clear way to revitalize federalism by making federal politics more representative. That will be done to only very minor extent by the changes within the House of Commons that Mr. Martin talks about. MPs will, and should, continue to come to Ottawa as party people, to sustain or oppose the government of the day. Democratic federalism calls for additional representation. It means that Canadians should be able to elect also people who go to Ottawa primarily as spokespersons for all the people of their communities, able to inject regional viewpoints directly into the consideration of national policies. Democratic federalism requires, in short, an effective Senate. It means replacing appointment by election.
The present Senate is indefensible. In public opinion the question is whether it should be reformedor abolished. The pretext for doing neither is the requirement for a constitutional amendment, and on that politicians are, since the Charlottetown referendum, gun-shy.
It is true that, without such an amendment, the Senate cannot be abolished, nor can it be immediately and comprehensively reformed. But it can, within a few years, operate as an elected assembly. Mr. Martin has only to give up this patronage power.
The constitution provides that the Prime Minister, in effect, fills a vacant Senate seat by appointing – subject to minimal qualifications such as being 30 years old – whoever he wants. How he should make his choice is not defined. To legislate on that is entirely within the competence of Parliament. A simple provision would require that the person “summoned” to the Senate be the successful candidate in an election arranged for the purpose.
There is precedent. Alberta onc e embarrassed Ottawa by staging, with municipal elections, a vote on who Albertans would like to fill a Senate vacancy. That was, of course, a deliberate invasion of federal jurisdiction; the Senate is a place in the Parliament of Canada. But the democratic point was well made. Federal legislation should replace patronage by election.
The most effective way – giving, in the current jargon, maximum transparency – would be an Act of Parliament instituting Senate Day, for elections to all seats that had become vacant over a previous twelve-month period. For the sake of illustration, if Senate Day were fixed as the last Thursday in April, time for campaigning could be provided by polls for the seats vacant on March 1s t.
While there would no doubt be party candidates, the electoral process should be designed to encourage independents broadly representative of provincial opinion, rather than particular causes. For that reason there would be quite low limits to election expenses, and they could be reimbursed by Elections Canada for candidates who registered a significant number of endorsations.
The significant number would necessarily vary with provincial population. A desirable refinement would be to establish Senatorial sub- divisions. From the beginning, Quebec’s Senate seats were divided among districts, and that model might now be adopted for all provinces, PEI perhaps excepted. By that means, cities would gain the direct representation in Ottawa that they sorely need.
Admittedly, that element of the reform would be a hard sell among MPs, who claim to be representatives of their ridings, serving all their constituents. Most do so, on specific problems. But everyone knows that on significant policies they are bound to their party lines. A different kind of representation through the Senate would be warmly popular, particularly in the cities. It could lead to a significant re-balancing of the influences that shape national policy.
Change will not come immediately with the legislation. However, on January 1st 2004 there were, in addition to 2 vacancies, 11 Senators aged 74 and therefore required to retire this year. There will be a further 11 vacancies in the following two years. By then, certainly, the democratic breeze would be enough to change the character of the Senate.
The breeze could be strengthened. Of the Senators in place on New Year’s Day, 62 were aged 65 and over. To change the terms of present incumbents would be objectionable, but the legislation could reasonably provide that presently appointed Senators who choose to retire at 65 or later will receive the same pension as if they remained for their full entitlement. The advent of elections might then be considerably accelerated. For the future, elected Senators could be appointed for fixed terms, rather than to a certain age.
Nevertheless, the proposed legislation would fall short, even when its effects are fully mature, of the ideal Senate reform. That has sometimes been identified with equality of provincial representation. For provinces as different in size as Ontario and Prince Edward Island, this would be neither defensible in principle nor acceptable in public opinion. Certainly, however, some realignment is required.
The most complete reform would accompany conversion of the House of Commons from the first-past-the-post electoral system to proportional representation. In that case Senators would be essential in the role of “our person in Ottawa” regardless of party; they would be appropriately elected from single-member constituencies by transferable voting, so that the successful candidate is the one most acceptable to a majority of voters.
When thorough reform becomes possible, the powers of the Senate will no doubt be redefined. In theory they are at present almost the same as those of the House of Commons. In practice they cannot be exercised by a body without electoral authority. A reformed Senate would have authority, but the government’s responsibility to “Parliament” cannot be a responsibility to two, separately elected chambers. There can be only one place where the government stands or falls, and that must be the House of Commons, designed to mirror national opinion. A Senate mirroring regional viewpoints would contribute importantly to the discussion of all public affairs. It could initiate legislation. It could propose changes to legislation passed by the Commons. But in the last analysis it must be the Commons that prevails, its legislation passing even if a majority of the Senate disagrees.
In sum, legislation can be only partial reform. The ideal requires a constitutional amendment. But we will wait a long time for that. Substantial improvement is practicable meanwhile. And it has become urgent. The creation of the Council of the Federation should be recognized in Ottawa as a wake-up call.
From the provincial viewpoint, the Council is a constructive modernization of the machinery for collaboration that federalism requires. The feds have no grounds for complaint or opposition. The Council is cause for concern if, but only if, there is no corresponding modernization on the federal government’s part, if it still fails to ensure that regional viewpoints are directly represented within Ottawa. That can be readily done, can be seen to be done, by instituting elections to the Senate. If it is not done, if the provinces’ Council stands by itself while federal governance remains unchanged, the Prime Minister will have only himself to blame for the outcome: for further strengthening of provincial power and progressive weakening of the Canadian national state.
That is not what most Canadians wish, or indeed what most of their politicians intend. On the contrary, the tensions of a closer world make more coherence in our federalism more than ever critical to our national identity. The obstacle is not in the provinces. It is not in the diversities of our regions. It lies in the poverty of democratic involvement in our national politics. They would be significantly enriched by Senate elections. If the Prime Minister is serious in wishing “to bring regional concerns and issues to the heart of the national government”, legislation to replace patronage by polling is the significant action that he can take now.
Frances Abele and Michael J. Prince (November 2003)
Aboriginal peoples anticipate and desire a process for continuing the historical work of Confederation. Their goal is not to undo the Canadian federation; their goal is to complete it…. The goal is the realization for everyone in Canada of the principles upon which the Constitution and the treaties both rest, that is, a genuinely participatory and democratic society made up of peoples who have chosen freely to confederate.1
Introduction: Aboriginal Peoples as Political Collectivities
Aboriginal and treaty rights are pillars of Canada’s constitutional order. Along with parliamentary government, federalism and the Charter of Rights and Freedoms, they are a permanent feature of Canadian history and democratic government. Canada’s evolving Aboriginal governments are one expression of Aboriginal and treaty rights, and they must be taken into account in any new thinking about improving federalism through the formation of a Council of the Federation. In this short essay, we consider a few practical ways in which Aboriginal peoples might be included in the Council of the Federation.
Our analysis proceeds as follows: we first sketch the constitutional basis of Aboriginal peoples as political collectivities in contemporary Canada; we then raise some concerns about the Council of the Federation, as proposed so far, from the standpoint of Aboriginal self- determination and the inherent right to self- government; next, we briefly make the case for Aboriginal representation in Canadian executive federalism; after that we offer three reform options for strengthening the role of Aboriginal political organizations within Canada’s network of intergovernmental relations; in short, counsel for building new relationships in Canadian federalism.
Aboriginal and treaty rights are recognized in the Constitution Act, 1982 and are further elaborated in a series of Supreme Court of Canada decisions. Aboriginal peoples’ constitutional rights underlie much of federal and provincial policy with respect to indigenous peoples. One expression of this is the grand commitment that has been made to the negotiation of modern treaties. Nearly thirty years of negotiation in Labrador, Quebec, Nunavut, Northwest Territories, Yukon and British Columbia has produced a series of agreements between indigenous collectivities and the Crown (in right both of federal and provincial governments). One of the consequences of these negotiations and other processes has been the establishment of a wonderfully varied range of Aboriginal governments. The new public governments being built in Nunavut and Nunavik are a consequence of Inuit activism, but they equally represent and serve all of the residents of those territories, regardless of ethnicity. In the Northwest Territories and Yukon, modern treaties are gradually reshaping territorial government, producing forms of democratic government more decentralized and arguably more complex than those in any other parts of Canada. Over six hundred mostly very small, ethnically exclusive governments represent First Nations in Canada. There is considerable evolution in these governments, as they assume more responsibilities and wrestle with finding institutional means to be accountable, effective and democratic. As modern treaty negotiations continue, more new governments are being created, with varying institutional connections to other Canadian governments.2
At the same time as these essentially territorially based new governments are being created, Aboriginal people are also joining the general Canadian trend toward leaving the countryside to live in cities. In 1951, just seven per cent of Aboriginal people in Canada lived in cities; by 2001 over one-half of the people who responded to the census were urban dwellers. Many of the Aboriginal people living in cities are part of larger, territorially based natio ns or peoples, located elsewhere. But some, and we believe an increasing number, are truly urban, with distant or non-existent ties to a home reserve, community or territory. In principle at least, all of the Aboriginal people living in cities have the same right to self-government as Aboriginal people living anywhere else in Canada, though certainly some may choose not to exercise it. At the moment, it is quite unclear what forms of self-government may evolve in cities.3
The situation of Aboriginal peoples as collectivities in Canada is thus reasonably clear, constitutionally and legally, and enormously complex, fluid and variable in practice. Democratization of Canada’s relations with the descendents of the collectivities who originally occupied what is now our common land has been a long time coming, and the process is nowhere complete.
Concerns about the Council of the Federation
What does the proposed Council of the Federation mean for Aboriginal peoples and their relations to federal, provincial and territorial governments? Will the Council help or hinder the pathways toward Aboriginal and treaty rights and the realization of self-determination?
From the perspective of Aboriginal rights and self-government, a number of concerns can be made about the proposed Council of the Federation.
Together, these points convey a model of what Aboriginal-Canadian state relations are, and what they might be and might not be in the future. Our assessment is that the proposed Council of the Federation implies a view of Aboriginal self- determination as mini-municipalities. This is in contrast to other models that view Aboriginal self-determination as a third order of government or as sovereign communities with nation-to- nation rela tions with the Canadian federation. As it stands, the logic behind the proposed Council offers few, if any, intergovernmental spaces for the exercise of self-government in Canadian federalism. 4
Buttressed by theConstitution Act, 1982, various court decis ions are challenging the vision of Indigenous communities as merely modified municipal institutions. The accumulating jurisprudence is giving significant support to the notion of Aboriginal governance as an inherent right that must be institutionalized as a third order of government within the Canadian federation. 5
The case for Aboriginal representation in Canadian executive federalism
Given this situation, we believe, and have argued this elsewhere, that there should be an effort to entrench some form of representation of Aboriginal peoples in the institutions of executive federalism.6 First,wethinkthatignoring Aboriginal governments in the reform of federal institutions is contrary to the spirit of the treaties, the constitution and much federal, provincial and territorial policy. In short, it would be wrong – undemocratic and unfair– to do this.
Second, ignoring Aboriginal governments in the reform of federal institutions is not prudent in the long run. Aboriginal political activism over the last thirty years has proven effective in influencing the high politics of Canada, whether one thinks of the successful lobby for constitutional recognition of Aboriginal and treaty rights, the formation of the new territory of Nunavut, or the initiative of the very long process of modern treaty negotiation to resolve outstanding land rights in over half of Canada.
Third, directly engaging national Aboriginal organizations and leaders in structures such as the Council of the Federation is an important step, along with other institutional and constitutional measures, toward equalizing the power imbalances that prevail between Aboriginal communities and their governments, and federal, provincial and, to some extent, territorial governments. Such shared structures, while striving to bridge differences – always a challenging task – can be a place for respectful dialogue, accommodation, and the coexistence of peoples in Canada.7
Fourth, and perhaps most importantly of all, ignoring Aboriginal governments in the reform of federal institutions is monumentally unrealistic. The new governments being formed require the same degree of policy discussion, policy and program negotiation and fiscal stability, as do other Canadian governments. They will gain access to these things only after some practical way has been found to integrate them into the great governing system of the country, known as federalism. Until Aboriginal governments have access to federalism and can operate on the same basis as other governments, they will be handicapped in fulfilling their mission as Canadian governments.
How might Aboriginal governments participate in a new Council of the Federation?
A number of considerations must be noted as we develop an answer to this question:
While these considerations might appear to argue for a postponement of any consideration of the question of how Aboriginal governments might be represented in Canadian federalism, we do not draw this conclusion. Leaving Aboriginal governments out of reforms to executive federalism and to the reform of fiscal federalism that might follow risks stalling and at worst undermining positive developmental processes now underway. Existing Aboriginal governments require participation in executive federalism for the same reasons other governme nts do: they need an opportunity for policy coordination, development of a sense of common understanding and common cause. And they require now the other benefits of federalism, especially fiscal stability and shared risk.
Truly revitalizing Canada’s Federation
Rather than avoidance or deferral, we argue for an experimental approach to finding a means to represent Aboriginal governments in the Council of the Federation. This spirit of experimentation would match the empirical reality. New forms of Aboriginal government and new Aboriginal-Canada institutional relationships are being developed with imagination and vitality, as we speak. Consideration of any potential role for Aboriginal governments in the federation might also have a salutary effect on the entire process of federal institution reform, which does tend to become mired in old battles, resentments and dilemmas.
Here are three options that are practical and non-constitutional reforms, offered for general consideration:
1. Consultation with the existing Aboriginal peak associations
One product of the massive mobilization of Aboriginal people in Canada in the period since the Second World War has been the creation of entrenched, articulate organizations to represent their interests on a Canada -wide basis. The Assembly of First Nations (AFN) represents status Indians mainly on reserve; Inuit Tapirisat of Canada represent the Inuit on Nunavut, Nunavik and Labrador; the Métis National Council; the Congress of Aboriginal Peoples representing non-status Indians; the Native Women’s Association of Canada, whose members include status and non -status First Nations women; and, quite recently, the Pauktuutit Inuit Women’s Association representing Inuit women. Only the AFN explicitly represents Aboriginal governments: it is a federation of band governments. The other peak associations are federations of regional political organizations.
This model is basically a continuation of past practice, which has seen the peak associations drawn into federal-provincial-territorial conferences dating from those that preceded the constitutional patriation in 1982 , whenever issues warranted. The practice has often been honoured in the breach (the peak Aboriginal associations were left out of Meech Lake, with disastrous cons equences, and left out of the creation of the Social Union Framework Agreement although involved in some of its implementation).
The Council of the Federation presents a new opportunity in which to formally engage these peak Aboriginal associations with the provincial and territorial leaders and governments. The Council could meet with the leaders of the six peak Aboriginal associations annually. The Council could also establish a secretariat to support meetings between federal/provincial/territorial ministers responsible for Aboriginal affairs and the national Aboriginal leaders.
2. Representation of a Council of Aboriginal Peoples on the Council of the Federation
This model envisions the creation of a new institution, a Council of Aboriginal Peoples, comprised of members elected from the general population of Aboriginal people. This idea is comparable to somewhat different proposals in the Charlottetown Accord and in the final report of Royal Commission on Aboriginal Peoples.8 Electing individuals from across Canada to such a body would be quite a radical step, and would undercut the Aboriginal organizations. One variant of this option could be a mixed Council, with some representation from existing organizations and some directly elected people. Either model sets up a separate Aboriginal Council that would have to be then written into the Council of the Federation. It would be an aggregating device.
3. Protocols between Canadian and Aboriginal governments, associations or councils
Along with forming the Council of the Federation, the Premiers plan to establish protocols for interacting with the federal government. This proposal for a code of intergovernmental conduct could easily be enlarged, and should be, to address protocols with Aboriginal governments, organizations or any new council if established. The basis for such a protocol can be found in the 1997 consensus statement among national Aboriginal leaders of a framework for discussion on relationships between federal, provincial and territorial governments and Aboriginal governments and peoples. In addition, over the last five to ten years, emergent practices are apparent on the place of national Aboriginal organizations within intergovernmental relations.9 These protocols and practices represent an avenue for strengthening the role of Aboriginal political organizations within Canada’s network of intergovernmental relations, in other words, government-to- government-to-government working relationships.
Discussion of the Council of the Federation provides an occasion to offer counsel on Canadian federalism. To r ecognizing that Aboriginal peoples have an inherent right to self – determination is to restructur e the jurisdictional nature of Canadian federalism as well as the institutional nature of intergovernmental relations. In that spirit, we have suggested some directions for strengthening the participatory and democratic nature of the federation for Aboriginal peoples in this country. A truly fulsome approach to cooperative federalism needs to recognize the reality of Aboriginal and treaty rights in Canada and to promote a meaningful and respectful dialogue between and among federal, provincial, territorial and Aboriginal governments. The Council of the Federation can be one way, amon g many others, to advance the dialogue and work with Aboriginal governments toward improving the well-being of communities and achieving self-determination.
Bob Rae (November 2003)
Canada’s constitution, like that of every federation, has its strengths and weaknesses. Looking back now at the debates before 1867, the issue of intergovernmental relations received short shrift. Macdonald, who could be described as a “reluctant federalist” at best, insisted on an appointed Senate as a way to ensure federal primacy. The civil war in the United States, which had so dramatically traumatized the federation to the south, created a vital context for the Canadian discussion. From the power of disallowance to the strong “peace, order and good government” clause, to the federal control of the Senate, there was no question as to how the balance was to be tipped: the Canadian federation was to have a strong, even a predominant, centre. The provinces powers were to be seen as local in nature.
Macdonald had not counted on the potent combination of his former law partner, Oliver Mowat, and the Privy Council in London. Arguing Ontario’s (and the other provinces) case for nearly thirty years, Mowat insisted that the provinces had full powers in their areas of sovereignty, and that the federation was a union of equals. These arguments were largely persuasive and, with the exception of war-time Canada’s constitution has recognized a substantial degree of autonomy and power for the provinces in their areas of jurisdiction.
The last fifty years has seen the federal government expanding its sphere of influence through the use of the spending power, most notably through transfers in the fields of health, higher education and social services, and then finding the need to retrench these expenditures because of the higher deficits of the period after 1975. The provinces were happy to receive the generous transfers of the 1950s and the 1960s, which paid for the dramatic expansion of higher education and hospital and medical care. By the same token, the unilateral nature of the cutbacks of the 1970s, 80s, and 90s created a deep sense of grievance, which has lasted to the present day. I well remember Tommy Douglas’s speeches in the House of Commons in 1978 on the subject of the Established Programs Financing Act.
It was no accident that Mowat was the architect of the first premiers conference in Quebec City in 1886. The Senate was not able to function as a “house of the provinces.” A key weakness of the 1867 British North America Act was thus revealed, and our politicians have been wrestling with it ever since. No institutions were created which allowed regional and provincial concerns to be settled at the centre. The result has been a series of innovations: at times, strong regional and provincial Cabinet Ministers with the ear and confidence of the Prime Minister, at other times, the wooing of regional political parties, like the Progressives of the 1920s or, more recently, Social Credit and Reform. None of these has effectively restored the issue.
A whole slue of intergovernmental and sectoral administrative arrangements has marked the era since the 1950s. So too the federal provincial political conference, from first ministers on down, has become a notable feature of the political landscape. We are all familiar with the endless sessions that marked the patriation of the constitution and, the Meech Lake and, Charlottetown Accords. But they have their counterpart in numerous discussions on non-constitutional subjects.
When I became premier of Ontario in the fall of 1990, the country was recovering from the dramatic failure to effect the Meech Lake constitutional reforms. I attended my first premiers meeting in the summer of 1991, and it was there that I learned something of the background and ambiance of this uniquely Canadian institution. A separate meeting for premiers and their families was established in the 1960s as a way for these first ministers to get together informally, to share experiences, and to allow for a relaxed social occasion where families could get to know one another. It was not, at the outset, supposed to be an event with a heavy political agenda.
By the time I got there in 1991, the institution had evolved. Families still came, but there was a formal agenda, and part of the meeting was televised. Extensive discussions were held among staff long before the meeting about the wording of the post-conference communiqué. The press were critical of any “off the record”, “closed door” sessions (the no-no’s of the post Meech world). The result was a series of formal speeches for the home audience of each premier.
The dynamic of intergovernmental meetings was naturally transformed by the intensity of the discussions that preceded the Charlottetown Accord in 1991 and 1992. Prime Minister Mulroney made some effort to get people together to talk about the economy before his retirement, but this was scuttled by deep arguments over federal cutbacks in transfers. Jean Chrétien’s first federal-provincial meeting in December of 1993 was a success: he wanted to spend money on infrastructure and agreed to the idea of Team Canada, giving the premiers and the provinces a role in joint trade promotion.
The intensity of the experiences of Meech and Charlottetown created a strong esprit de corps among the premiers, reinforced by the unprecedented, and shared, challenge of the fiscal deficits of the 1990s. I well remember a late night session with premiers Romanow, Filmon, Harcourt and McKenna on our common difficulties, and the sense that Canadians had had enough of endless bickering about constitutional formulas and were looking for more effective ways of dealing with economic and fiscal problems.
When Daniel Johnson succeeded Robert Bourassa as Premier of Quebec in 1994, he raised the idea of a Council of the Federation. In essence it would take the informal annual gathering of premiers and give their meetings and deliberations more structure, back-up, and weight. The proposal was endorsed by the premiers in Toronto at their summer conference in 1994, but the electoral victory of the PQ in that same year meant that any thought of practical reform went into the deep-freeze. It has taken the return of the Liberals to power in Quebec in 2003 to resurrect the idea.
In the meantime, the early honeymoon of the Chrétien government has been replaced by the usual fin de regime pointing of fingers. The federal government decided in 1995 to take billions out of transfers to the provinces, and to continue the discrimination against Ontario, Alberta and British Columbia through the so- called “cap on CAP”. This cap continued for four more years and was subsequently estimated to have cost Ontario over 10 billion dollars. It poisoned the well of post 1993 goodwill. At the same time the election of the PQ in Quebec in 1994 and the Harris Tories in Ontario in 1995 had their own effect in changing the federal- provincial chemistry.
The result has been predictable: a steady deterioration in federal-provincial relations, for which both sides have to bear some responsibility. The federal government points to the agreement on the Social Union, the sea- change in the federal budget balance, and significant increases in health transfers in recent years as a sign of its good faith, and expresses bewilderment at what it sees as the contrived indignation of the provinces. For their part, the provinces point to a systemic pattern of under- funding, particularly for health care, since the mid-1990s (but really since 1977), and the complete unpredictability of federal behaviour. Talk of new funding – for daycare, for urban infrastructure – fills them with great foreboding as they contemplate yet another round of politically driven funding followed by a swing of retrenchment. The Social Union Framework Agreement, they say, is an empty shell.
A new Prime Minister and several new provincial governments, particularly in Quebec and Ontario, are creating a sense that change is possible once again. Hence the interest in Premier Charest’s proposal for a Council of the Federation.
The premiers have to be careful, however, about believing their own rhetoric. The evidence strongly suggests that Canadians are reluctant to take sides in federal-provincial disputes, and do not share their governments’ preoccupations with who has what jurisdiction. Even in Quebec, they hold leaders collectively accountable for the efficient running of programs and delivery of services.
Dalton McGuinty’s initial reaction that he wants to avoid a “provincial gang-up” is wise. The Annual Premiers’ Conference, particularly in the late 1990s, was nothing more than a highly ritualized commentary and denunciation of how the federal government should do its job. No doubt the weak and fractious nature of the federal opposition made the premiers feel some obligation to fill the vacuum, and there was always some basis for the grousing, but grousing it was and the Canadian public was not particularly impressed.
All of which takes us back to Charlottetown in 1992, and even 1867. If we had been able to make the Senate an effective voice of regional concerns, on either occasion we would not be where we are. But that didn’t happen. Hence the premiers’ meetings, and the Council of the Federations. If it were wise, the federal government would welcome the latter idea, and then figure out how to make federal-provincial diplomacy more effective. It would not be a revolutionary move, but it could be a practical idea to make the federation work better.
But we should look at other federations, like Germany, and see the risks of gridlock and too little respect for jurisdictional division of powers. Everyone needs to proceed with a keen sense that the common goal is greater efficiency and more public support.
Douglas M. Brown (October 2003)
Last July, Canada’s provincial and territorial leaders, meeting in Charlottetown, adopted what they called a “plan to revitalize the Canadian federation and build a new era of constructive and cooperative federalism”. The centerpiece of the five-point plan is the creation of a “Council of the Federation” – endorsing at least part of the original proposal put forward by Jean Charest, the newly elected Premier of Quebec. The council will comprise of the leaders of the thirteen Canadian provincial and territorial governments (hereafter I will call them Premiers). It will meet on a regular basis, and other provincial-territorial councils, such as those for health or finances, will report to it. Also under the umbrella of the Council will be a new secretariat for information and cooperation on fiscal imbalance. The new Council will not include the federal prime minister as a member, but rather would meet annually with the federal PM, following a jointly prepared agenda and co- chaired by the prime minister and the chair of the Council. In addition to agreeing on the need for these structured meetings, the Premiers also called for new procedures for consultation on federal appointments, for the devolution of powers to the territories, and for the establishment of federal-provincial-territorial (FPT) protocols of conduct.
In sum, the Premiers plan to beef up existing institutions and develop new ground rules for intergovernmental relations. These changes hold the promise of substantial improvement of relations among the provinces and territories, and between them and the federal government. Whether the promise is met depends on how much real reform is achieved. The communiqué of the Charlottetown meeting is light on detail and vague on important design issues that will have to be addressed. The Premiers agreed to have the first meeting of the Council in Quebec on October 24, 2003, where they may well agree on more details. How far they get then and in the coming months will turn on their ability to overcome some significant obstacles to reforming the mechanics of our intergovernmental relationships in Canada. The provincial and territorial premiers seem divided on just how much reform is needed or desirable. And Canadians are likely to be somewhat cynical: they have seen such proposals come and go –including the ambitious constitutional reforms debated in Charlottetown eleven years ago.
How serious are the Premiers about reform of intergovernmental relations, or is this just window dressing in preparation for a new federal government after Paul Martin takes the reins? Should Canadians support reform of intergovernmental relations, and to what extent are new rules and new institutions necessary? Are our provincial, territorial and federal governments prepared to give up some of their autonomy to undertake the “pooled sovereignty” that might be required for such new arrangements to make a difference? This paper addresses these questions. First I discuss why we need intergovernmental relations at all in the Canadian federation – the ongoing paradox of interdependence in a system of carefully divided jurisdictions. Second, I review the nature of the informal institutions and norms that have governed our relationships to now. Third I outline some key constraints to strengthening intergovernmental relations, and how they are based in fundamentally competitive political values that will be hard to overcome, if indeed we want to do so. Last, I examine some specific reforms being proposed and other ones that would be needed if we really want more effective mechanisms for joint decision-making.
The Paradox of Federalism: Why Do We Need Intergovernmental Relations at All?
Intergovernmental relations arise naturally from the logic and design of federal systems of government. The genius of federal constitutions is that they allow for unity across a large territory and among diverse societies, by dividing governance between the union and its regional political communities –what we in Canada call our federal and provincial (and territorial) governments. The provinces take care of more local concerns or those more specifically tailored to their local society, and are fully sovereign in legislative and executive terms within the confines of their constitutional jurisdiction. The federal government is also fully sovereign in its legislative and executive functions as defined by the constitution. Democracy is thus compound, with a certain amount of creative competition and redundancy to be expected and encouraged among provinces and between them and the federal government.1
But at the heart of all federal systems is the paradox that federalism is designed, as the late Daniel Elazar put it, for both “self-rule and shared rule”.2 The self-rule consists of the separate and independent spheres of jurisdiction. The shared rule consists of the participation and representation of the regions or provinces in the federal or national government such as in the upper house or Senate of the federal parliament. It is also seen in some powers being essentially shared between the federal and provincial governments. The shared rule aspect of the federal principle is weakly developed in Canada but strong in most other federations.
Our original constitution passed into law in 1867 did its best to avoid explicit concurrent jurisdiction in the new Canadian federation. There were some key exceptions from the beginning, such as agriculture and immigration. Also, federal and provincial taxation powers are nearly the same, so that unless the governments coordinate their tax policies, a tax jungle can take place. And in the area of criminal law, the federal Parliament is responsible for the content of the criminal code, while the provinces are responsible for administering it.
As time went on, and the role of government expanded, many more areas of law-making and public policy tended to overlap. The chief example is social programs, which are mainly the responsibility of the provinces, but the federal government assumes a role in the development of common national entitlements, such as for health care and social assistance.
In Canada as in other advanced federal systems, especially since the end of the Second World War, we have seen a complex of intergovernmental relations emerge to deal with the growing interdependence of governance. These relations, which cover practically all fields of policy, are particularly extensive in fiscal arrangements (tax sharing and intergovernmental grants), social programs, economic and regional development, the environment and international trade. These relationships can be horizontal, i.e. among the constituent units in a federation (states, provinces, cantons, etc.) or vertical, i.e. between the federal government and the provinces, or both. Whether one places more emphasis on interprovincial versus federal-provincial cooperation depends a lot on how much direct federal involvement is desirable or necessary to get things done jointly.
Newer federal systems such as Germany have incorporated into their constitutions specific institutions to deal with intergovernmental relations because they could predict the heavy weight they would bear. But Canada’s much older constitution did not foresee such a need, and has of course proven very difficult to reform. Instead Canada has had a more gradual evolution of institutions and processes to deal with intergovernmental management. These have been rather ad-hoc and informal, placing clear limits on what they achieve in terms of joint decision-making and the execution of shared responsibilities. In fact, Canada today has among the least formalized intergovernmental relations of all the federations.
“Intergovernmental” is also a term that some use to describe the detailed governance of managing interdependence among nation-states. The United Nations and its many allied agencies are essentially intergovernmental, in that they depend on the agreement and funding of their constituent members to get things done. In the past twenty years we have also seen the development of major supranational institutions, most notably the European Union, that have raised the standard for how nation-states can pool their sovereignty to achieve joint goals.
These trends at the international level have two consequences for intergovernmental relations in Canada. First they provide some important models for ways in which our machinery of intergovernmental relations could be made more effective. Second, and more importantly, the evolving institutions of global governance are both cause and effect of a broader trend of multilevel governance. What this means is that the interdependence among governments within our federation that has been growing in the past century is now extended, through globalization and regional integration, to governing agencies beyond our borders. Increasingly what our governments deal with when they meet is not just domestic, national issues, but ones with broader international and global implications. The tidy distinction between domestic and foreign is gone, probably forever. Canada’s ability to deal with issues such as softwood lumber, cross-border security, the Kyoto Accord, agricultural trade, SARS, and a host of others, depends on carefully meshed federal-provincial and international interactions. In this complex world there is much intergovernmental business to be done. The question remains: is the old way of doing things up to the task.
Executive Federalism in Canada: Getting Things Done In Spite of Ourselves?
Among federations there are significant differences in the institutions and underlying ethos of intergovernmental relations. These form a continuum between maximum independence and maximum interdependence. At the one pole governments retain their autonomy and interact in a competitive way. If coordination occurs at all, it is through the unseen hand of a political market. At the other pole, government actions are so intermeshed as to allow no independent freedom of action. This can occur in a vertical arrangement with provinces doing what the federal government demands because they have no choice. Or there can be a more horizontal “joint decision trap” – a phrase used by German political scientist Fritz Scharpf to describe the rules for some policy fields in the German federal system, where no government can act unless all of them agree to do so.3
Canada’s federal system is tilted more than most towards the competitive and more independent end of the spectrum. Ours is a relatively decentralized system, with more room for competition –among provinces, and between provinces/territories and the federal government – than would be tolerable elsewhere. This is despite the original plan of the founders of the federation for a more centralized system. They did not foresee the growth of provincial power and influence that arose from the courts’ protection of their jurisdiction, from the increasing scope of social and economic programs under provincial control, or from the continuing support that Canadians would give to strong provincial governments (especially but not confined to, Quebec). As noted already, the classic division of powers in our federation has weakened as interdependence has grown. But what has not weakened has been the propensity for competition among governments, and the jealous protection of jurisdiction and autonomy at both levels.
Our governments can act together when there is a very strong consensus. Academics have labeled the characteristic style of such actions as “executive federalism”. It is a direct result of the marriage between federalism and the British model of parliamentary government where the executive is embedded in the legislative branch, and where the Government that commands majority support in parliament can pass and execute laws and generally run the business of government with awesome, centralized control. Recent analysis of the Canadian version of the Westminster model emphasizes that our prime ministers (even without the cabinet) are becoming increasingly powerful actors – a pattern that holds true for the provincial governments too.4
Thus when the Prime Minister and Premiers do have the political will to reach agreement on a course of action, no matter how complicated, they are generally able to do so. Executive federalism has a long list of achievements, including the joint programs and fiscal arrangements that built the welfare state; extensive collaboration in regional development and trade promotion; a degree of success in constitutional reform such as in 1981-82; and so on. But there have also been major failures and protracted periods of conflict, such as over energy policy in the 1970s and 80s, and the Meech Lake and Charlottetown Accords. 5
The high profile successes and failures of executive federalism obscure the extensive everyday relations among governments in Canada, occurring in meetings not of the first ministers, but in over 20 councils of ministers (e.g. health, finance, social services, agriculture, environment, etc.), and in an elaborate substructure of mirror deputy-minister councils, sub-committees, task forces and the like. There is also constant communication by phone, email, and formal correspondence. For the most part all of this activity has a useful purpose and achieves its goals of relatively low level cooperation: exchange of views and information and much mutual attempt at persuasion. However, when intergovernmental relations attempt to reach an outcome that is more ambitious, such as a joint policy or coordinated program of action, the constraints and values in our system kick in to limit what can be achieved.
The Constraints on Co-Decision
If our history is that our governments have an occasional ability to achieve intergovernmental results of some substance, why can’t we be more confident that this can occur more consistently, and be less contingent on the alignment of unusual political forces? Three main constraints prevent more systematic success. First and most significant is the continuing strong political culture of autonomy and competition. A major rationale for the Canadian federation has been the protection of a national French-speaking minority and the preservation of the autonomy of provincial communities. Over time this rationale has been strengthened, particularly against the competing rationale of Canadian nation-building, by court judgments preserving provincial jurisdiction and by the success of the provincial governments in sustaining electoral support for their role. Indeed, as a result of the tension between provincial and national communities, and between Quebec and the rest of Canada, Canadians seem more tolerant of conflict and seem to recognize it as the price to be paid for diversity. The tension extends to intergovernmental relations. Not only are they an arena for the working out of differing visions of the country, but also the goals, means and style of relations becomes part of the contested ground of Canadian federalism.
The second major constraint is institutional, rooted in the working rules of our intergovernmental relations.6 Partly because our nineteenth century constitution did not foresee the need, and partly because of the competition values just described, Canadian governments do not have well developed machinery for making collective decisions. There is no entrenched constitutional or legal provision for intergovernmental bodies; and no formal decision rules for the ad-hoc and informal mechanisms that exist.7 In the absence of their formal establishment, relations are ad-hoc and rudimentary. The provinces chafe at the lack of regularly scheduled meetings with the federal government, which can take place only with federal consent, and the sometimes shallow nature of consultation. Agendas are often set unilaterally. For its part the federal government often sees such meetings as merely “fed- bashing”, and not efforts to make genuine compromises for joint action. When governments meet, decisions are usually taken, if at all, by consensus only, which tends to produce lowest common denominator outcomes (one reason why intergovernmental communiqués are so anodyne). And on some major decisions the convention is unanimity, so that all it takes is one party to disagree for action to be delayed or denied. Another consequence of the lack of legal formality is that intergovernmental agreements generally remain political accords only. They can be changed at will by either party, or ignored as both parties wish, and often do not survive an election. On the whole, these rules –or rather the lack of more effective working rules – create continuing disincentives to achieve collaborative results.
The third constraint, linked to the previous two, is democratic. Executive federalism as practiced in Canada and elsewhere is, by definition and structure, executive-dominated.8
It tends to be secretive and bureaucratic, and as an extension of executive government, keeps the legislatures at bay. As a result, the politics of intergovernmental relations, especially the most visible relations among first ministers, suffer from defective accountability and representation. Where complicated intergovernmental agreements result in shared responsibility, direct accountability is blurred. Or in a context such as health care, where no one disputes shared responsibility but where agreement is hard to achieve, the public witnesses the debilitating spectacle of competitive blaming. Representation is also at issue, particularly for highly symbolic issues such as constitutional negotiations, where the concentration of decision-making among first ministers alone is perceived as a problem.
In fact in most policy fields intergovernmental relations must co-exist with a broad set of processes in which the public has increasing input to policy formation –whether that is through stakeholder consultation, interest group lobbying, polls and focus groups, or legislative committees and caucuses. It is not surprising that when governments face the complicated task of maintaining these kinds of consultative processes simultaneously with an intergovernmental process, the alternatives of dropping the latter and going it alone or of achieving more limited goals becomes very attractive indeed. Thus the democratic rationale for avoiding intergovernmental outcomes is reinforced by a broader administrative rationale. Inevitably governments prefer to deal directly with their own electorates through unilateral actions designed for them alone rather than through complex intergovernmental arrangements.
How Can We Move Forward?
So we come to recent calls for reform. The Premiers announcement in July has its origins in the position of the Quebec Liberal Party (QLP) before the last Quebec election, and in general trends in federal and interprovincial relations during the Chrétien era. The QLP issued a paper in October 2001 calling for a new federalism “de concertation et de cooperation”9, consisting of a better effort to manage global interdependence, a respect for the federal spirit (i.e. respect for provincial jurisdiction), a better fiscal balance between the federal and provincial governments, and more concerted interprovincial cooperation. The paper also called for a new Council of the Federation as a permanent forum for collaboration among the federal partners, presumably including the federal government. Its task would be to coordinate intergovernmental relations in such areas as internal trade, social union, broad economic management and international relations. The Council would be backed up by a permanent Secretariat-General, with three sub-secretariats.
The QLP position, now apparently the official policy of the Government of Quebec, marks an important point of departure. By taking the lead on the reform of intergovernmental relations, Quebec signals a renewed interest in federalism. By emphasizing interprovincial as much as federal-provincial relations, it reinforces the trend since 1995 for greater interprovincial collaboration for its own sake, as well as to strengthen a common front with respect to Ottawa. And while not forgetting the traditional constitutional positions of Quebec, the new position adopts the conventional wisdom that nonconstitutional reform is the better way to proceed.
There have also been calls for reform outside Quebec. The Premiers of New Brunswick and Alberta called for a renewed collaboration in early 2003, as did the recent report of the Newfoundland and Labrador Royal Commission on Our Place in Canada released in July. In surveying recent trends in intergovernmental relations in Canada, the latter concluded that the current federal government no longer seems interested in cooperative approaches, in regular intergovernmental exchange and in reaching national (i.e. federal and provincial) consensus. The report recommends “more organized and regularly scheduled First Ministers’ meetings for a better functioning federation”.10 Also in September 2003 the Canada West Foundation issued a report The West in Canada: An Action Plan to Address Regional Discontent, which endorsed the proposed Council of the Federation, and urged the federal government to engage with it, including through an annual first ministers conference, with provincial and territorial input to the conference agenda and format.11
Thus the Premiers current initiative responds to some strong advocacy coming from Quebec, the Atlantic Provinces and the West, for a fresh start at more cooperative federalism. It also comes consciously at the end of the Chrétien era, anticipating new federal leadership under Paul Martin. The Chrétien governments, in reaction to fatigue with constitutional politics after 1992, and faced in any case with the withdrawal of Quebec from many intergovernmental forums, put less emphasis on formal first ministers meetings. The Prime Minister has preferred more informal gatherings such as the Team Canada missions abroad, or short meetings on specific issues such as health care. Ironically, the Chrétien approach to avoid formal first ministers conferences contributed to the strengthening of the Annual Premiers Conference. The provinces now expect that a federal government led by Paul Martin will have a greater appetite for more elaborate intergovernmental institutions.
As governments put flesh on the bones of their proposals in the coming weeks a number of issues will need to be addressed. First, which governments will in fact be included in the Council? Apart from the provinces and territories, should the federal government also join? What about the idea of larger cities or other municipalities being represented? And what about aboriginal governments? The larger the potential mandate, the more players will seek to be involved.
Second, how elaborate should the institutional structure be? Should the Council oversee and have reporting to it other intergovernmental forums? Should it have an independent secretariat? The Premiers have already agreed to a Quebec-based secretariat for the next two years to deal with fiscal balance issues. But many premiers seem to dislike the idea of an independent bureaucracy to manage intergovernmental collaboration. They have certainly resisted creating such new structures up to now.
Third, should governments be considering intergovernmental institutions that can truly achieve regular co-decision? What form would that take? Emerging practice elsewhere suggests that federal systems such as Canada do need to adopt a process of “pooling sovereignty” to respond substantively to increasing interdependence and to have effective multilevel governance. The ingredients of that process could vary12, but might include such reforms as:
Of course, getting agreement to proceed with these sorts of changes would involve the very same unreformed rules of intergovernmental relations that one is trying to change, with all of the constraints noted above. Thus it seems unlikely that such reforms would be adopted quickly or across the board, but they could be tried in selected policy fields first, for example in the Agreement on Internal Trade, or the Social Union Framework.
The realist might well conclude that little will come of such ideas. The Council of the Federation may become nothing more than a continuation of the Annual Premiers’ Conference by another name. Alternatively, federal engagement could return practice to the Mulroney era when annual first ministers’ conferences were the norm – but no more. Canadians and their governments may not be ready for European-style co-decision. They may continue to fear joint decision traps, where any kind of locked-in decision process will erode their autonomy.
Yet if reform is only cosmetic, the default position will continue to be competitive federalism. This will not be good enough to manage the complexities of interdependence in the world of global and regional integration. Whether the issue is a national plan for dealing with climate change and greenhouse gas emissions; negotiating deeper regulatory integration in North America; handling a continuing series of global public health threats – Canada will fall further behind if it does not have the capacity to participate effectively in multilevel governance.
Our political culture with its incentives for competition and partisan conflict, and the preference for direct accountability to one’s own electorate, will not wither away. There is a chance, however, that a new generation of political leadership could adopt a fresh, cooperative approach. Wariness about the increased bureaucratization and potentially reduced democratic transparency of stronger intergovernmental mechanisms is justified, but it can be tempered by building in stronger accountability features to specific intergovernmental forums, agreements and other instruments. To conclude, a window of opportunity is opening for Canadian intergovernmental relations. Some of the old rules of the game could be changed to improve our ability to get things done in the federation. If the past is any guide, that window will not stay open for long. It is time for careful consideration of the options and forward movement to make the system work better for everybody.
André Burelle (October 2003)
Jean Charest’s proposal to create a Council of the Federation, approved in principle by the premiers of the provinces and territories at their annual conference in Charlottetown last July, leaves unanswered the whole question of the goals and specific character they want to assign to this new institution.1
An Interprovincial “Containment” Strategy
In its most benign form, the Council of the Federation sketched out in Charlottetown could be merely a formalizing of the Annual Premiers’ Conferences that have been held for decades, and the consecration of the essentially defensive mission of these meetings in reaction to the unitary and domineering federalism as practised by Ottawa.
With a permanent secretariat and better equipped working groups, like the one that will be examining the fiscal imbalance between the federation’s two orders of government, such a council would lend more intellectual and political weight to the traditional demands of the provinces and territories in their fight against the “take-it- or-leave-it” federalism à la Jean Chrétien. However, such a council would in fact only be a more dignified version of the “ganging-up” and “fed-bashing” strategy that has already been deployed without much success by the provinces for too many years.
In trying to make marginal changes to the management of the federation without calling into question the very nature of the unitary and domineering federalism practised by Ottawa, this council would only be a de facto recognition of a vision of Canada that fosters a sense of alienation in the Western and Atlantic provinces and that nearly led to the secession of Quebec in the October 1995 referendum.
This vision, promoted by Trudeau, Chrétien and company, is that of a civic “one-nation” Canada, subject to a “national” charter of rights and freedoms, allergic to the collective rights of the country’s founding peoples, and served by a federal system that pits thirteen “junior” governments against one “senior” government responsible for ensuring that the “national” interest prevails over the parochialism of the provinces and territories. In this conception of Canada, “national sovereignty” belongs entirely to the “Canadian people” who give Ottawa the exclusive responsibility of ensuring the greater good of the nation and guaranteeing equal rights tocitizensacrossthecountry.2 These responsibilities confer on the Canadian Parliament a right, indeed a duty, to interfere in the fields of provincial jurisdiction through its spending power.
It was this form of federalism that brought upon the provinces the drastic cuts in social transfers unilaterally imposed by Mr. Martin in 1995. It was this form of federalism that prevented the provinces from even considering user fees or the involvement of the private sector to try to contain the costs of their health care systems. It was this form of federalism that threatened to impose sanctions on Alberta and British Columbia for failing to comply with the standards established by the Canada Health Act and the Canada Assistance Plan. It was this form of federalism that excluded the provinces from the “Axworthy Reform” and the Romanow Commission, two federal initiatives aimed at regulating the exercise of provincial powers in social policy.
This unitary and domineering federalism based on “nation building” through Ottawa’s spending power has a pervasive effect on attitudes. It accounts for the contempt for the provinces held by many federal elected officials and public servants, as well as the submissive attitude of the small provinces compelled to eat out of the hand of the central government. It leads to a general shirking of responsibility by the provincial governments, which have become accustomed to demanding and spending federal funds for which they do not have to tax their taxpayers. It drives such a dyed-in-the-wool federalist as Claude Ryan to advocate for Quebec “the unconditional right to opt out with full 3 financial compensation” on social union matters. Lastly, it encourages Canadians to see Ottawa as the father and generous provider of social programs, even though these programs were first established in Saskatchewan under T.C. Douglas, and despite the fact that Ottawa now only contributes marginally to the financing of health care and social assistance programs, the cost of which falls more and more heavily on the shoulders of the provinces.4
It was against this type of domineering federalism that the provincial and ter ritorial premiers rebelled after the cuts announced in the first Martin budget. And it was this form of federalism that they suggested be replaced with management, “on a true partnership basis,” of the Canadian social union, in the courageous brief of the Ministerial Council on Social Policy Reform and Renewal, published in December 1995. However, it was this type of federalism that they ended up accepting by signing the Social Union Framework Agreement with Ottawa on February 4, 1999 in which all the provinces, except Quebec, literally consented to being put into trusteeship in exchange for a tiny share of the money that the federal government had taken away from them with Brian Mulroney’s “cap on CAP” and the Chrétien government’s unilateral cuts in socialtransfers.5
A Responsible A ffirmation of Sovereignty and Partnership
The Pelletier Report,6 from which Mr. Charest drew his inspiration in Charlottetown, offers provincial and territorial premiers a new opportunity to translate into action their will to rebuild the Canadian union on a “true partnership basis.” But to do this, they will have to go beyond the strictly defensive strategy that they have been content to follow until now, and make the Council of the Federation, which they have decided to set up, an instrument of effective and responsible affirmation of the sovereignty of the provinces in their sphere of constitutional jurisdiction.
In order to shield them once and for all from Ottawa’s unilateral funding cuts, Mr. Charest proposes that the provinces recover the tax points that are rightfully theirs in order to exercise their sovereign powers in the areas of health, education and social welfare. He also requests that the federal government refrain from intervening directly in these areas and that it focus instead on increasing its unconditional equalization payments to help the poorer provinces provide social services comparable to those of the richer provinces.
In this respect, Mr. Charest’s views concur with those of the Commission on Fiscal Imbalance, chaired by Yves Séguin, his current minister of finance, who, in 2002, recommended “the elimination of the CHST and its replacement by a new division of tax room, because of the assured and predictable nature of the source of funds to which the provinces would have access, its unconditional nature and the greater accountability that would result.”7 All the premiers followed suit in Charlottetown. But if Mr. Charest and his provincial colleagues want to be taken seriously, they will have to demonstrate to all Canadians that the provinces can guarantee through their own means the integrity of social programs that is currently ensured by the federal spending power. It seems to me that there is only one credible way for the premiers to convince Ottawa to withdraw into its unconditional equalization payments while being assured that social services of “comparable quality” will be delivered across the country. They must create an interprovincial Council of the Federation, empowered to jointly decide on the common goals and minimum constraints that the provinces will impose on themselves in order to ensure the coherence of the Canadian social union. They must also commit to publishing an annual report and comparative analysis in which the provinces that do not comply with these standards would be exposed.8
Once they have demonstated unequivocally their ability to discipline themselves, the provinces could eventually open the door of “their” Council to the federal government. They could then officially broaden the Council’s mandate to give Canada the institutional tool for interprovincial and federal-provincial coordination and codecision that it needs to manage interdependence between the two orders of government while respecting the sovereign powers of both.
With this new partnership instrument Canada would be better equipped to deal with the growing number of problems, which extend beyond the provincial, national and even international borders and require a joint and coordinated exercise of the sovereign powers of both orders of government. These problems relate, inter alia, to the environment, immigration, transportation, telecommunications and macro-management of the Canadian economic union. With this new tool, the federal government would also be in a better position to co-opt the provinces and thus negotiate with more legitimacy the numerous international treaties that, in the ongoing context of globalization, it is called upon to sign in the fields of provincial jurisdiction.
More importantly, however, once it is reassured about its own integrity, thanks to the provinces’ willingness to assume their fair share of responsibilities in the overall management of the country, Canada could more easily renew, and at the same time modernize, the “multinational” federalism established by the Fathers of Confederation in 1867.
A Necessary ‘Global Rebalancing’ of the Canadian Federation
It was in order to return to the origins of this “multinational” federalism, while modernizing it and opening it up to the Aboriginal peoples, that the research group that I led at the Federal- Provincial Relations Office in Montreal proposed, after the failure of the Meech Accord, an overall rebalancing of the Canadian federation based on the following logic:
in exchange for
To compensate for the “asymmetric decentralization” implied by a Swiss style “multinational” Canada, the Pepin-Robarts Commission had already put forward the idea of a Council of the Federation that could ensure the coherence of the Canadian union. However, this council, modelled after the German Bundesrat, just like the House of the Provinces suggested in Claude Ryan’s Beige Paper, brought into question the very existence of the current Senate. This seemed and still seems impossible after the failure of the Meech Accord.
This is why our proposal was to transform the First Ministers’ Conferences into a Council of the Federation. These conferences have the advantage of already existing, they come under customary right and their role can be changed without opening the constitutional Pandora’s box. 10 And to make this new Council of First Ministers a responsible and transparent coordination instrument, we suggested that it be empowered by the country’s legislatures, through the signing of a Pact on the Canadian Economic and Social Union,11 to manage issues, through codecision with unanimity or qualified majority coordination, between the provinces themselves, on the one hand, and between the provinces and the federal government, on the other.
What seemed and still strikes me as modern and federative in the European model of codecision is that it allows:
To implement this type of European-style coordination, we proposed that codecision be subject to decision rules unanimously agreed to by the federation’s partners. As an example, the following could serve as a basis of negotiation. The qualified or weighted majority in the areas of exclusive provincial jurisdiction could be determined by the following formula: Ontario, Quebec and British Columbia, 1 vote = 10; Alberta, Saskatchewan and Manitoba, 1 vote = 8; New Brunswick, Nova Scotia, Newfoundland and Prince Edward Island, 1 vote = 5. The total required to obtain the qualified majority would be 55 out of 74,12 which would prevent large provinces from forming a coalition against the others and vice versa. The qualified majority in the areas of shared jurisdiction could take many forms, including the following: Ottawa, 1 vote = 30; Ontario, Quebec and British Columbia, 1 vote = 10; Alberta, Saskatchewan and Manitoba, 1 vote = 8; New Brunswick, Nova Scotia, Newfoundland and Prince Edward Island, 1 vote = 5. The total required to obtain the qualified majority would be 75 out of 104, which would prevent the provinces from imposing their will on the federal government but would also prevent Ottawa from forming a coalition with the large provinces in order to impose its views on the medium- and small-sized provinces or vice versa.13
The obligation to establish decisional rules with unanimity would allow Quebec to require unanimity in areas that directly affect its cultural identity and to practise codecision with a qualified majority in all cases where it doe s not require a right of veto. This would turn out to be more frequent than we think, if codecision does not focus on finicky standards but rather on a flexible coordination and harmonization framework. An example would be the provinces’ commitment to harmonize, through mutual recognition and with the obligation to produce results, the health care services, social services and diplomas that they grant across the Canadian union. Another example would be the codecision by the provinces and the federal government on a number of common goals and constraints that all governments undertake to abide by in order to harmonize their fiscal policies and make them complementary instead of competitive.
The Pelletier Report and the QLP Action Plan
This kind of globalreba lancing of Canadian federalism based on the right to distinctness and to localautonomy of federated communities compensated for by a joint reinforcement of the Canadian union was adopted by the QLP under Daniel Johnson in 1996 in a report called Recognition and Interdependence. And the same underlying logic is found in the Pelletier Report and the QLP Action Plan, which Mr. Charest drew on in Charlottetown.
As a first step, the QLP Action Plan suggests to the rest of Canada that an administrative reform of the federation be carried out to ensure full respect of the autonomy of the two orders of government; a reduction of the fiscal imbalance through a transfer of tax points to the provinces and readjustment of equalization payments; a responsible joint management of the Canadian economic and social union through a Council of the Federation; and the conclusion of three agreements in areas of shared jurisdiction — communications, the environment and international relations.
However, what is envisaged in a second round by the QLP Action Plan — and this is seldom mentioned in the ROC, or even in Quebec — is the following, and I quote:
With very few exceptions, all the demands formulated by Robert Bourassa during the negotiations of the Meech Lake and Charlottetown accords are repeated on this list, but with two major differences. First, Mr. Bourassa made the signing of the Meech Lake Accord a precondition to the negotiation of the Canada round aimed at strengthening the Canadian union. Second, although he had discussed this matter in 1984, Mr. Bourassa never officially tabled the idea of a Council of the Federation empowered to ensure joint management of the federation through codecision.15
In my view, Mr. Charest is demonstrating a laudable but unwise and even reckless openness by not demanding any political guarantee that he will be granted the equivalent of the Meech Lake Accord in exchange for the partnership-based strengthening of the federation tabled by him in Charlottetown. And that is likely to be his undoing. Because without this minimum guarantee from the ROC, Quebecers will refuse to consider the interprovincial and federal- provincial partnership proposed by Mr. Charest. Already in Ottawa, the Council of the Federation that he is trying to implement is being considered as simply a lobby by provinces and territories to obtain new fiscal resources. If these attempts to reduce the Council of the Federation to a powerless and irresponsible institution are successful, chances are that Quebec will withdraw into its traditional reflex of unconditional opting out with full compensation. And that will spell the end of any negotiation based on the “right to distinctness compensated by a partnership-based management of interdependence,” as proposed by the Pelletier Report in order to sign an honourable constitutional peace with the rest of Canada.
Without being overly optimistic, it is my hope that the provinces will use the creation of the interprovincial Council of the Federation agreed upon in Charlottetown to truly regain their status as sovereign partners of the federation. Only once they have shed their image of “junior governments” will they be able to open the door to a federal-provincial council operating on a “true partnership basis,” and thus allow Canada to reconcile the right to cultural distinctness of its founding peoples with a joint management of the interdependence between governments that lives up to the spirit of our times.
Roger Gibbins (October 2003)
The objective of this short paper is to explore the potential impact of a new Council of the Federation (hereafter the Council) on Canada’s democratic reform agenda. Given that the Council has yet to be created and the reform agenda itself is embryonic, there is necessarily a good deal of conjecture in the analysis that follows. Nonetheless, the potential impact merits a careful look before we go too far down the path of embracing the new Council. Movement in this direction may be more attractive if it complements the movement for democratic reform, and less attractive if it will potentially weaken or derail that movement.
Let me begin, then, by sketching in the two sides of this relationship. First, the Council. At the time of writing, it is by no means clear what form the Council will take. For the sake of argument I will assume that the Council:
In short, I am assuming that a Council will be formed, that it will reduce some of the friction within intergovernmental relations, but that its impact on federal governance will be relatively modest. It will be an evolutionary rather than a revolutionary change in Canadian political life.
Now, others may assume a more robust Council, and indeed this may happen over time. However, given the limited constitutional space within which the Council can operate, the great difficulty in constructing a decision-rule other than unanimous consent, and the problems in operating effectively when constrained by the need for unanimous consent, it seems safer to assume that the Council will start small, and that its evolution into something more grandiose will be both slow and uncertain.
Next, what do I mean by the democratic reform agenda? At present there are at least three components to this agenda:
Even when taken together, these three do not constitute a reform agenda that is particularly radical or sweeping. Nonetheless, it does address a growing discontent that Canadians appear to have with the political status quo, and particularly with the increasing concentration of power within the national government. Modest it may be, but it’s the best we’ve got. The question, then, is what impact might the new Council of the Federation have on this agenda?
Perhaps the first point to stress is that a new Council is unlikely to have much direct impact on either regional discontent or more general public discontent with the state of democratic governance. Canadians have a limited appetite for intergovernmentalism, and are unlikely to storm the barricades shouting “give me more intergovernmentalism, or give me death!” (Indeed, they are more likely to equate more intergovernmentalism with death.) We can expect, therefore, that the Council will have a low public profile, and will stir little public interest much less excitement. In reaching this conclusion, I have drawn from the public’s response to the Social Union Framework Agreement (SUFA), which was designed in part to demonstrate to Canadians that the federal system could be reformed without changing the constitution. It is fair to conclude, however, that SUFA has failed to build a public audience or constituency. While it may be reshaping the nature of intergovernmental relations in important ways (and I stress may), SUFA is off the radar screen for any but the most attentive publics.
It would thus be a mistake the see the Council as an alternative to the democratic reform of parliamentary institutions and electoral politics. It would be a stretch indeed to argue that further inflating the place of intergovernmentalism in Canadian political life will strengthen the bonds between individual Canadians and their elected representatives. However, if the Council is not an alternative, the question is whether it will facilitate or impede the democratic reform agenda. If we assume that a new Council will have little if any public profile and interest, does this mean that it will leave the democratic reform agenda untouched? Here I would argue that some indirect effects may be significant if the Council changes the incentive structures for political elites relative to the democratic reform agenda. To explore this point, let’s turn briefly to the specific components of the democratic reform agenda.
House of Commons reform
Former Prime Minister Pierre Trudeau’s intemperate description of MPs as a bunch of nobodies once they left the Hill has not been fundamentally challenged in recent decades. In fact, their importance even within the House of Commons has been further eroded by the growing concentration of legislative and executive power in the hands of the prime minister and his office (the PMO), and by the sizable impact of the courts on Canadian public policy. In this context, the emergence of the Council can be seen as a further emasculation of the House. To the degree that the Council emerges as a policy player in its own right, something that remains to be seen, the House will emerge as the loser in the zero-sum game of political influence. Important decisions, or at least those saved from the courts, will move even more to the realm of intergovernmental relations, leaving the House with little to do apart from the formalities of ratification.
Will this threat provoke any defensive response? Here the best guess is that the Council will heighten the interest of MPs in reform of the House, for if they fail to move on a reform agenda both they and the House will slide even further towards political irrelevance. The Council can only be seen as a competitor, and MPs are likely to respond. It is less clear, however, whether the cabinet and prime minister will share this response. Will they also seek to shore up the reputation and role of the House, seeking to make it an effective counterweight to the growing power of intergovernmentalism? Or will the political executive have enough on its plate dealing with the Council, and therefore lose interest in pursuing the complexities of parliamentary reform? Given that successful parliamentary reform will weaken cabinet and prime ministerial control, it may be seen as a problem by political executives dealing with more coordinated provincial government challenges coming through the Council.
On balance, the impact of the Council of the Federation on House of Commons reform may be a wash. While the proponents of parliamentary reform will have mor e ammunition for their case, the proponents of the status quo will also be able to argue that it is not appropriate to weaken the federal executive at a time of increased challenge from provincial governments. The tipping point will be established by how the future prime minister weighs the tradeoffs between reforming Parliament, on the one hand, and improving intergovernmental relations, on the other. Undoubtedly the Council itself will do everything possible to tip the balance towards the latter option.
The supporters of electoral reform are unlikely to see a new Council as an effective alternative to their own agenda. Indeed, the Council is at best irrelevant to those who are trying to strengthen the electoral voice of citizens. Fair Vote Canada, for instance, will not fold its tents and silently steal away once the Council takes hold. But, is there a chance that the successful establishment of the Council could diminish the interest of political elites in electoral reform? Might they conclude that improved intergovernmental relations weakens the case for electoral reform?
One might make this argument if there was any reason to believe that those same elites – federal and provincial governments, MPs and members of provincial legislatures – had any interest in the first place in electoral reform. Apart from the striking exception of the Government of British Columbia, there is little interest to weaken. Here it is also important to stress that virtually all of the action on the electoral reform front is taking place in the provinces; there is no evidence of any enthusiasm for electoral reform among MPs or for that matter the national parties. The future of the movement for electoral reform will be determined largely by the British Columbia initiative, and this will not be derailed by the Council’s creation. It would appear, then, that both the dynamics of and potential for electoral reform will not be significantly affected by the new Council.
Will individuals in western Canada, the current hotbed of the movement for Senate reform, see the new Council as an effective and/or desirable alternative to Senate reform? Here it is first important to note that western Canadians see their provincial premiers as their primary voice in national affairs; when a 2003 Canada West Foundation survey asked 3200 western Canadian respondents “who best speaks for your province in national politics,” 40% cited their premier compared to 3% for the prime minister, 24% MPs from the province, and 12% for federal opposition parties (15% felt that no one spoke for their province in national affairs). However, even given this predisposition, it is unlikely that many western Canadians will see greater intergovernmentalism as an effective or appealing alternative to Senate reform. Such reform, after all, is targeted to strengthen the regional voice within Parliament. Thus the Senate reform debate is only loosely connected to steps that might be taken to improve intergovernmental relations.
At the same time, the interest of both the provincial and federal political executives in Senate reform may be weakened by the creation of the Council. Provincial governments may see the Council as the avenue they need to increase their voice in national affairs, and may see a revitalized Senate as both unnecessary and as a potential rival to the Council, which of course it would be. In fact, one might well argue that there is not enough room in Dodge City for both the Council and a revitalized Senate, that at root they represent conflicting models of federal governance. As for the federal executive, the Council itself will do more than enough to make life more difficult for the federal government, and thus there may be little interest in adding to the difficulty by pursuing Senate reform. Federal officials may fear that with the Council they will be managing with one hand tied behind their back, and with Senate reform both hands would be tied.
Thus while the creation of the Council is unlikely to undercut public enthusiasm for Senate reform, it may well undercut the interest of political elites, a level of interest that has been tepid at best. Here I would suggest that the impact on political elites is by far the most worrying for the proponents of Senate reform.
How, then, do we make sense of the potential impact of the new Council of the Federation on the democratic reform agenda? On balance, the Council is unlikely to seriously erode public interest in democratic reform, although here we should also note that such interest currently stops well short of being incendiary. At the same time, the Council is likely to have greater impact on the incentive structures of political elites. My guess is that it will dampen enthusiasm across the board for Senate reform while providing modest additional impetus to House of Commons reform. If this latter reform does not occur, then the Council will contribute to the further marginalization of MPs and the House. Finally, the Council will be unlikely to have a significant impact on the electoral reform debate, which may be just as well given the exceptionally long odds that the proponents of electoral reform already face.
Do these effects, modest and uncertain as they are, argue against the creation of the Council of the Federation? The simple answer is no. They do suggest, however, that proponents of the democratic reform agenda should assess how the political terrain on which they operate will be affected by the Council. While the overall case for reform is not seriously weakened, arguments for reform must take into effect the likely impact of the Council. Nonetheless, supporters of the democratic reform agenda should not see the Council as a threat. At the margins, if only at the margins, it may even be an asset.
Harvey Lazar (October 2003)
Framing the Question
At their July 2003 annual meeting, the thirteen provincial and territorial premiers announced that they were creating a new Council of the Federation to provide “leadership in tackling the issues that matter to Canadians and are crucial to the future of the country.” The members of the Council are the premiers themselves and they committed to meeting “on a regular basis” with a view to strengthening provincial and territorial collaboration. The premiers also declared that they would focus initially on areas of common interest such as health care and internal trade as well as fiscal imbalance.
The premiers have been meeting every summer for over four decades. And while their annual get-together was once relatively light fare, over the last decade the Annual Premiers’ Conference has played a more significant role in national leadership. In recent years, moreover, premiers have been meeting more often than once a year as required by the enhanced level of activity that they have generated amongst their ministers and officials. One question that arises, therefore, is whether the Council of the Federation initiative is anything more than the Annual Premiers’ Conference under a new name. Is it old wine in a new bottle? Or is it something genuinely new and different in the governing of the federation?
Heavily influenced by Quebec premier Jean Charest’s proposals, the premiers’ July announcement presented the Council concept as one component of a “plan” to “revitalize” the federation and “build a new era of constructive and cooperative federalism for Canadians.” At that time, the premiers, amongst other things, also called for annual first ministers’ meetings, an enhanced consultative role for the provinces and territories in key federal appointments, and “protocols of conduct” to guide the behaviour of all governments in their relations with one another to avoid unilateral actions. When put into this wider context, the Council of the Federation is seemingly intended to move the federation to a more collaborative set of relations between federal, provincial, and territorial governments.
What then are the prospects that the premiers’ init iative will make a difference in the governance of the federation? And what kind of difference should be expected or is desired? Indeed, what do the premiers mean by “collaboration”? This is one of a series of articles that seeks to shed some light on these questions and does so by focusing on the record of federal-provincial-territorial (FPT) collaboration under the provisions of the 1999 Social Union Framework Agreement (SUFA). That agreement, signed by Ottawa, all provinces except Quebec, and the two older territories, calls for “mutual respect among orders of government and a willingness to work more closely together to meet the needs of Canadians.” The agreement covers many of the issues that a Council of the Federation will presumably deal with, including health care and other social programs, as well as some aspects of the financial arrangements related to those social programs. Writing about SUFA about three years ago, I suggested that “if implemented effectively, it offers the promise of better social policy (in the sense of more coherent and better- informed policy), more effective management of the federation and a better functioning democracy. The question that requires consideration, therefore, is whether it will fulfill these promises.” 1
Now that we have four and half years of experience under SUFA, how should Canadians assess its record? What lessons have been learned from this instrument of intergovernmental collaboration? And what do these lessons suggest about the future prospects for a Council of the Federation?
Assessing SUFA: Impact and roadblocks
Let’s begin by recalling that SUFA is mainly about the process of governing — how governments should relate to one another and to citizens in the making of social policy. It has a section on principles and another on “mobility within Canada” (sections 1 and 2). Almost all of the rest is about how governments are to behave. Section 3, for instance, concentrates on “public accountability and transparency,” section 4 on governments “working in partnership for Canadians,” section 5 on the role of the “federal spending power,” and section 6 on “dispute avoidance and resolution.” Section 7 called for a review of the agreement and its implementation after three years (now completed). 2
What has been SUFA’s impact? First, it has had little effect to date on the content of social policy. The main area of public debate in social policy in recent years ha s had to do with publicly insured health care (its funding, scope, quality and timeliness). I do not know of a single analyst outside of government who would argue that the intergovernmental content of the health accords reached by first ministers since 1999 have been significantly influenced by SUFA. An exception to this general point about the content of social policy has to do with mobility policy, where there seems to have been genuine progress in improving the ability of workers to move between provinces. But as already noted, mobility is the only policy issue dealt with directly by SUFA itself.
Second, and more troubling, is that there is little public evidence that the process of making social policy has itself been substantially altered. For example, in the last two FPT health accords (2000 and 2003), the federal prime minister acted in a largely unila teral manner with respect to the amount of additional federal funding and the purposes for which that money should be spent. (The role of provinces seems to have been largely confined to saying “yes” or “no” to the amount and negotiating for enhanced flexibility on how it might be spent.) Where SUFA may have made a difference is in the still evolving accountability provisions in health care. Even there the slow pace of action by governments in fulfilling their accountability commitments (e.g. jointly agreed comparable indicators for public reporting, a new Health Council) speaks to the belief among some provinces that these FPT exercises were not sufficiently collaborative. This concern is perhaps best summed up in the understated language of the FPT Ministerial Council on Social Policy Renewal earlier this year when it observed in its report that “government to government consultation can be improved.”3
To be sure, it inevitably takes time to turn the ship of state around and get governments to do business differently. In line departments, such as those responsible for health, social service and labour markets, insiders often argue that business is being conducted in a way that is increasingly respectful of SUFA’s provisions. The recent intergovernmental review of SUFA pointed to the early childhood development and National Child Benefit files as examples of effective SUFA implementation, and others have suggested that recent social housing initiatives are a further illustration of an effective SUFA- like process.4 While it is hard to know whether these unquestionably collaborative initiatives would have been equally collaborative in the absence of SUFA, the fact that such claims emanate from a range of governments lends plausibility to this view.5
Nonetheless, it is difficult to conclude that there has been an improved climate in Canadian intergovernmental relations since 1999, especially in relation to files that involve large amounts of money. The federal government’s approach to major federal cash transfers to provinces continues to be largely unilateral, based on Ottawa’s judgment of what it can afford, tempered by its sense of what the public believes to be fair. While the federal government may be in technical compliance with its SUFA commitments to consult at least one year prior to making significant changes in funding, and other limitations on the use of the federal spending power, its “take it or leave it” approach to financial negotiations with the provinces on health care is difficult to reconcile with the SUFA language of mutual respect. I am also not aware of any meaningful federal-provincial discussion regarding the Canada Health Transfer that is supposed to be established by March 31, 2004.
Five significant roadblocks have stood in the way of SUFA fulfilling its potential. One stems from the very process that led to SUFA. The agreement was the result of a provincial initiative that had its origins in the 1995 federal budget. In that budget, finance minister Paul Martin announced major reductions in cash transfers to the provinces for social programs, including health. The provinces believed that they had been unfairly singled out in the federal spending cutbacks. The initiative that they subsequently launched eventually culminated in SUFA. While this initiative involved an expressed desire to improve FPT collaboration, provinces also attempted to negotiate some fairly stringent restrictions on the federal government’s use of its spending power and new procedures for managing disputes. When Ottawa came to the negotiating table, however, it was able to water down provincial demands relating to the spending power and it had its own set of demands (including those related to mobility and accountability provisions). The main point here is that provincialand federal governments had different objectives when they agreed to SUFA. These differences, while understandable, in effect mean that there is still to this day an ongoing negotiation among governments as to what SUFA means and how it should be implemented.
A second and related roadblock relates to the large differences of opinion that remain between the federal government and the provinces concerning the fairness of the intergovernmental fiscal arrangements that underpin FPT partnerships on social programs. The provinces perceive that there is a vertical fiscal imbalance that unduly favours Ottawa. This means that provinces believe Ottawa collects far more tax revenue than it needs relative to its expenditure responsibilities leaving too little tax room for provinces in respect of their more onerous obligations. Ottawa disputes this view pointing, for example, to recent provincial tax reductions and the fact that provinces have the constitutional authority to tax all of the most lucrative tax bases. Provinces also complain that they are exposed to more downside risk when the economy weakens than is appropriate. These disputes affect the attitudes of both orders of government in their implementation of SUFA.6
Third, there is a fundamental dispute about the role of the FPT Ministerial Council on Social Policy Renewal in overseeing the way SUFA works. The federal government sees this Council as playing a modest role, reporting on trends and best practices with the serious work of improving social programs remaining the responsibility of sector ministers. A number of provinces would prefer that the Ministerial Council exercise a much larger leadership role, including the setting of priorities for social policy. There is nothing in SUFA that assigns such a substantial role to the Ministerial Council and Ottawa, perhaps correctly, fears that the provincial approach would reduce its freedom of action beyond the modest restrictions now inherent in the agreement. (This is an example of the ongoing negotiation about the nature SUFA referred to above.) The federal government also worries that such an approach would unduly hamper the freedom of action of sector ministers. The result has been an impasse about “whole -of- government coordination” that has made it difficult for the Ministerial Council to agree on whether and when to meet and what to discuss. From 2000 to 2003, therefore, it met only once (in person) due mainly to the ongoing wrangle about its appropriate role.7 This problem, it is worth adding, is similar to the difficulties in effecting overall FPT coordination in respect of the Agreement on Internal Trade.
Fourth, until 2003, FPT governments have differed strongly about how to implement the dispute avoidance and resolution provisions of section 6 of SUFA.
The fifth roadblock has to do with the fact that SUFA has no public profile even though the agreement calls on governments to “ensure effective mechanisms for Canadians to participate in developing social priorities and reviewing outcomes.” Moreover, when there are improvements in the content of social programs, as has been the case in relation to child benefits and early childhood development over the last couple of years, the public announcements understandably focus on the substance of the new arrangements, not on the intergovernmental process through which these improvements are reached. The lack of visibility of SUFA to the public takes the pressure off of governments in making the agreement function as effectively as it might.
These obstacles are above and beyond the usual factors that can divide governments such as differences in interest, wealth, ideology, party affiliation, and personality. As a result, and as already noted, during its more than four years in place, SUFA has had at best a modest record (if that) of improving FPT relations in the making of social policy. It has also done little to improve governments’ record of involving citizen organizations effectively in the FPT decision making process.
Is SUFA then a flop and, if so, what might this imply for the potentially more ambitious Council of the Federation? For those who may have had high hopes of an early payoff from SUFA in terms of either improved intergovernmental relations or better social policy, the word “flop” may be a reasonable assessment of its impact.
But for those who understood that SUFA required all governments to change voluntarily long-established and deeply ingrained modes of behaviour, it is still much too soon to conclude that SUFA is a failed experiment. There was never strong reason to expect that signatures on a piece of paper would alter entrenched modes of intergovernmental behaviour quickly. But if governments proceeded in good faith, then gradually there might be some improvements. Indeed, the three-year review of SUFA has led the FPT Ministerial Council on Social Policy Renewal to make recommendations for some clarifications to SUFA processes that could conceivably bring about such improvements.
Perhaps the last point to be made about SUFA is that enhanced intergovernmental collaboration, as called for by that agreement, is not necessarily synonymous with more harmonious intergovernmental relations. Collaboration suggests that governments have come to recognize their interdependence in certain areas and that they are willing to attempt to work together because of that interdependence. Working together does not mean, however, that governments will somehow magically reach agreement. As noted above, governments may come at issues with different interests, ideologies, party affiliations, and personalities. Indeed, differences among governments are normal and intergovernmental conflict can be constructive when it exposes competing ideas to public deliberation. In any case, conflict among governments almost always precedes agreement. In this sense, conflict and cooperation are not opposites but rather go hand- in-hand. Consequently, for those who believe that intergovernmental conflict is inherently undesirable, it is better to minimize areas of FPT collaboration and to have governments act as independently of one another as is practicable (what has been referred to as “disentanglement”). In this sense, interdependence and independence are the true opposites and not cooperation and conflict. SUFA recognizes that interdependence among orders of government is substantial and therefore provides a framework both for intergovernmental joint action (collaboration) as well as dispute avoidance and conflict resolution.
Lessons from and Implications of SUFA for a Council of the Federation
Like SUFA, the Council of the Federation is ostensibly intended to influence intergovernmental behaviour. The composition of the Council of the Federation and of SUFA differs, however, in three respects. First, the Council is a more senior body, being made up of heads of government (not the case for SUFA). Second, as initially proposed by the Annual Premiers’ Conference, the Council is to be an inter-provincial/territorial (or “horizontal”) body, not a FPT (“vertical”) organization, whereas SUFA is a vertical arrangement. This is a crucial difference. However, the 2001 Pelletier report proposed that the Council should have a vertical dimension as well as a horizontal one. 8 Whether or not provinces and territories will invite the federal government to join the Council when Paul Martin becomes prime minister, for the time being the horizontal dimension is what is to be implemented. Finally, Quebec did not sign SUFA and the Quebec Liberal Party signaled when it was in opposition that it too would not have signed the deal that was on the table. In contrast, Quebec is not only to be a member of the Council of the Federation but is its leading proponent. From the viewpoint of federation management and leadership, this too is a huge difference.
Taking account of these differences, what might Canadians expect from a Council of the Federation bearing in mind the SUFA experience? There is no simple answer to this question. One thing that can be said, though, is that to the extent that the Council remains a horizontal body, it will acquire significance relative to the status quo only if the participating provincial and territorial governments are willing, from time to time, to pool their sovereignty and act jointly. For instance, a soon-to-be-published analysis of the Annual Premiers’ Conference makes clear that this body does not serve as a vehicle for joint inter- provincial/territorial joint action. 9 Instead, almost all of its efforts are focused on developing common positions for discussion and negotiation with the federal government.
Are there items and issues where it might make sense for provinces, either all ten or smaller groups, to act jointly and independently of the federal government? The answer is assuredly “yes.” Provinces might find it efficient and less costly, for example, to create a single body to purchase pharmaceuticals for their varying drug programs. Or they might find it cost-effective to jointly develop tests to measure student achievement (an area they have worked on over the years through the horizontal Council of Ministers of Education of Canada). These types of measures could be especially useful to smaller provinces while in no way derogating from the needs of the larger ones. In such examples, an opting-in mechanism could allow some provinces and territories to participate while those that were not interested could stay out.
A horizontal council could also focus on inter-provincial learning and promoting best practices. As well, it might also serve as a spur to removing internal restrictions on inter- provincial trade, investment, and labour. But this would only be the case if the Council had the power to impose its will on recalcitrant provinces through an agreed set of voting rules (say, two-thirds of the provinces representing some minimum share of the population).
While the most obvious way to enforce voting rules would be through a constitutional amendment, an alternative would be for all provincial legislatures to enact ‘mirror’ legislation that sets out their commitment to an inter-provincially negotiated set of voting rules (rules that might differ from one type of issue to another as is the case for the European Union). While a provincial legislature could always exercise its sovereignty and amend its legislation so that it was no longer subject to the voting rules, there would be lots of political pressure on such a province to think twice, or three times, before scuttling its participation in the negotiated rules of the game. If provinces were to negotiate such a set of rules, this would create the possibility of national action through provinces acting alone. Such action could affect the dynamics of the federation and perhaps over time help make the federal-provincial relationship a more equal partnership.
However, notwithstandin g some exceptions, there is little in the history of the Annual Premiers’, the Council of Maritime/Atlantic Premiers, or the Western Premiers’ Conference to suggest that provinces are interested in inter- provincial collaboration in a substantial way.
There is much more evidence in their record to indicate that they would use a “horizontal” mechanism largely as a way of developing common positions to put to Ottawa. Or as seen from the federal perspective, it might well be a place where provinces plan their strategies to “gang up” on Ottawa. If this were to be its role, then it is hard to see any value-added relative to the status quo, since the Annual Premiers’ Conference already does the job.
This brings us to the idea of the Council as a vertical body even though this is not the proposal that the provinces and territories now have on the table. If Mr. Martin were offered and were to accept such an invitation, we would have a FPT body with the same composition as the SUFA except for two crucial things. Quebec would be in. And representation would be at the level of heads of government.
What might we expect in that case? First, as just seen, SUFA teaches us that new intergovernmental arrangements and institutions do not lead automatically to new modes of behaviour. Creating a FPT Council of the Federation would not therefore move Canada inexorably toward a new era of FPT harmony. Second, any adjustments and improvements in behaviour that might occur are likely to be gradual. Third, SUFA’s biggest failings have come where large sums of funding are being negotiated. This is not surprising as money issues generally entail a ‘zero sum’ game (where one side’s gain is another’s loss). There is no reason to think that a new institution would make financial negotiations much easier. SUFA is more effective, however, where money issues are settled and policy and program content are being developed. This is often a ‘positive sum’ game that enables both parties to see gains and a Council of the Federation could reinforce these kinds of gains. Finally, there is bound to be controversy about the extent of the role of citizens and interest groups in the functioning of the Council and related questions of accountability, as there is under SUFA.
The case for a FPT Council of the Federation should not be based on the hope of achieving intergovernmental harmony (“peace in our time”) but on the fact that the world continues to shrink with the result that interdependencies are growing. For example, one area where interdependencies are flourishing is across international borders and with this there is a growth in international governance. Much of this governance impinges directly or indirectly on items that are wholly or partly the responsibility of the provinces under the constitution. The federal government has the authority to negotiate and ratify international agreements in such areas but lacks the authority to implement them. For implementation it often requires provincial support.
Consider some of the extraordinary events of 2003 in Canada. The SARS virus appears to have entered Canada from Asia and managing it involved not only several layers of authority in Canada but also the World Health Organization and health authorities in the US. The massive loss of export markets for Canadian cattle and beef as a result of the BSE could only be dealt with through coordinated interactions between federal and Alberta authorities and continuous interaction between Ottawa and the governments of major markets. The ultimate solution to the softwood lumber dispute with the United States will require similar federal-provincial cooperation. The power blackout in Ontario appears to have had its origins in the US and minimizing the risk of future similar incidents is likely to involve both federal and regional governments (provinces and states) on both sides of the border. Dealing with threats of terrorism requires provincial cooperation with the federal authorities which, in turn, must work closely with security agencies in other countries.
For the most part, the above examples do not entail ‘zero sum’ games. Moreover, over time, it is reasonable to expect that more Canadian decision making will entail solutions that require negotiations with foreign governments or international institutions. This growth of international interdependency leads inexorably to a need for appropriate institutional developments in federation management. As Ron Watts has pointed out in his article in this series, Canada lags behind a number of other federations in creating the infrastructure for managing interdependencies.10 Effective FPT collaboration through a Council of the Federation could be a win-win-win proposition — for Ottawa, for provinces and territories, and most importantly for the people of Canada.
A FPT Council of the Federation might also play the role that several provinces wish the FPT Ministerial Council on Social Policy Renewal to play in respect of social programs. It is easier to envisage heads of government giving direction, and setting priorities, in this area than it is for less senior ministers. It is easier for sector ministers to respond to heads of government than it is to another group of ministers who are not necessarily their seniors.
For reasons already stated, a FPT Council of the Federation is less likely to be effective in dealing with fiscal disputes between federal and provincial governments. This is not to argue that the Council should avoid tough issues but only to suggest that giving this subject priority might be a difficult way to get started.
This still leaves the question: how would a FPT Council of the Federation differ from First Ministers’ Conferences and Meetings. The answer is that “it all depends”. In recent decades the frequency and utility of First Ministers get- togethers has been determined by the style and preferences of the federal prime minister. To oversimplify, Mr. Mulroney was inclined to call them frequently and M. Chrétien has not been so inclined. The governance of the federation should not be so heavily affected by these kinds of personal preferences.
In any case, a vertical Council would differ from the current First Ministers’ Conferences and Meetings only if it were explicitly designed to do so. And inevitably, this means institutionalizing it — that is, agreeing on the frequency and regularity of meetings and having an intergovernmental understanding about how agendas are to be set, who chairs the meetings and how decisions are to be taken and disputes resolved. It also requires clarifying channels of accountability for results and thus raises questions of transparency. These are easy concepts to put on paper but to varying degrees all are contentious. Agreeing to establish a FPT Council of the Federation is itself therefore bound to be a difficult and acrimonious endeavour.
Moreover, it defies imagination that such a Council would have staying power without an administrative arm to give it that endurance for the long haul. Part of the reason for SUFA’s at best modest record of achievement is the lack of a secretariat to keep pushing the agenda. Inevitably, some governments will worry about the costs of “another level of government” and the risk of such an appointed body thwarting the will of democratically elected governments. Well, on this point, it is a question of choosing one’s poison. If there is a strong case for a vertical Council, then it needs to be able to do its job and this requires that it have the administrative muscle to make things happen. To be sure, the size and budget of the secretariat would have to be managed. And while too big would entail danger, too small risks irrelevance.
The argument here is that the growth of interdependencies complicates the task of governing the Canadian federation. While many would prefer a disentangled federation, the world is moving in the opposite direction. The Council of the Federation concept is one possible response to that increased interdependency, or at least it is in its vertical guise.
It is important, however, to be clear that a more systematic approach to FPT collaboration, as anticipated by the Council concept, will not lead to an era of warm and fuzzy intergovernmental relations. To the contrary, the larger the intergovernmental agenda, the more there is to dispute. At the same time, to the extent that decisively better public outcomes require governments to work together, shying away from the intergovernmental table in order to avoid conflict is not the appropriate response.
To work effectively , either in its horizontal or vertical forms, there are two essential requirements for such a Council. The first is mirror legislation among participating governments that would give vertical and/or horizontal agreements some form of political protection against unilateral withdrawal by a signatory party. The second requirement is that heads of government learn to soften the discourse of FPT discussions. There is a language of brinkmanship that too often surrounds intergovernmental discussion that needlessly raises the temperature and the stakes.
This is reflected, for example, in the readiness of previous Quebec leaders to play the nationalist card too swiftly, the Alberta government to play the alienation card unnecessarily, the Atlantic provinces to focus on the emotive side of fiscal or fisheries issues unduly, and the federal government to cloak itself too often in the garb of the nation’s saviour. There may well be times when governments judge they have no choice but to play high stakes poker. But the tone of day-to- day intergovernmental exchanges and indeed of Council meetings needs to be business-like for the most part. When issues are not resolved, they can be put on the backburner and brought forward on another day.
Establishing an effective Council entails a major transformation in the governance of the federation. Establishing a FPT Council that is only a warmed over First Ministers’ Conference with current decision rules (consensus), current dispute resolution rules (until recently absent), current accountability provisions (ambiguous), an uncertain schedule of meetings (as is the case now with first ministers get-togethers), and a feeble secretariat is easier to achieve. But this second course is not an effective response to the growth of interdependencies. One lesson from the SUFA experience, however, is that the second kind of Council is more likely than the first.
In 2003 we have or are about to have a substantially new cast of characters leading our governments. And how they choose to tackle the challenges of federation management is not pre- ordained. Leadership makes a difference. Getting from “here” (weak intergovernmental bodies) to “there” (more effective institutional arrangements) will require that they display imagination, political will, and the patience to work things through together.
Greg Marchildon (October 2003)
The notion of the Council of the Federation has elicited much comment since the idea was first raised at the Annual Premiers Conference in early July of this year. Indeed, the Council was the lead item in the Premiers’ five-point agenda to revitalize the federation that also included: annual First Ministers’ Meetings; provincial- territorial consultations on federal appointments; devolution of powers to the 3 territories; and the establishment of federal-provincial-territorial protocols of conducts — presumably similar to what had been set out in the Social Union Framework Agreement of 1999.
This is an agenda that speaks to improving collaboration within the federation while reforming some of its institutional machinery in order to “build a new era of constructive and cooperative federalism” in the Premiers’ words. This is a laudable objective. Canadians are tiring of federal-provincial warfare and want their governments to collaborate so that this country’s affairs can be conducted more effectively. In an era of greater policy interdependency, most reject an agenda of federal-provincial disentanglement in favour of greater cooperation between the two ordersofgovernment. In a recent poll conducted by the Centre for Research and Information on Canada (CRIC), the majority of residents in each part of Canada preferred that their respective governments “work most things out together” rather than “stay out of each other’s way.” Even in Quebec where the sentiment in favour of disentanglement was highest, 65 per cent still preferred an agenda of constructive engagement. The next lowest levels of support – 82 per cent – are in Ontario and Alberta In the rest of Canada, support for constructive engagement varies from 85 per cent in Manitoba, 88 per cent in British Columbia , 91 percent in Saskatchewan, and 94 per cent in the Atlantic Provinces.1
Because of the absence of any institution with effective regional representation at the centre, executive federalism has of necessity been the instrument through which the necessary compromises and tradeoffs have been made between pan-Canadian objectives or imperatives on the one hand and regional/provincial needs and aspirations on the other. Canada is unique in that most federations do have a second chamber for regional representation.2 However, our collective inability to transform the Senate into such a body, combined with the exercise of party discipline in the House of Commons that inhibits members of Parliament from acting in their local interests, has guaranteed that regional representation will continue to come almost exclusively from provincial and territorial governments. As a consequence, most intergovernmental collaboration is executive by definition. We have a complex tapestry of ministerial councils on health, education, social policy, energy, forest and fisheries as well as regular meetings of the ministers and deputy ministers responsible for justice, finance, social services, immigration, justice and numerous other portfolios plus a plethora of advisory and working committees. These are all part and parcel of executive federalism in Canada today, with the Annual Premiers Conference (APC) and the First Ministers Meeting (FMM) standing at the apex of this structure.
The original Health Council of Canada proposal
Given the sweeping nature of the Council of Federation proposal, another recent intergovernmental proposal seems to pale in comparison. In November, 2002, the Health Council of Canada (HCC) was proposed by the Commission on the Future of Health Care in Canada (chaired by Roy Romanow) in its final report. 3 In reality, however, the HCC was originally conceived as a vehicle to resolve some of the most difficult intergovernmental disputes that have bedeviled the provinces and Ottawa in recent memory. In terms of objectives and structure, the HCC as originally proposed was in many respects as ambitious an undertaking as the Council of the Federation.
In its final report, the Romanow Commission recommended the creation of a HCC that could achieve three objectives:
The original idea was to have the HCC provide Canadians with an annual performance report concerning:
The HCC’s suggested structure, described in the box below, is based upon a regional – rather than a strictly provincial – model of equal representation. It differs from typical regional models in allocating one appointment to the three northern territories, a recognition by the Romanow Commission of the great challenges facing such governments in the provision of health care for a host of geographic, cultural, and population health reasons. During the past three decades of constitutional negotiations in Canada, there has been some debate over whether the provinces fit a four-region or five-region model. The Romanow Commission suggested a four- region model but compelling arguments can also be made for adding British Columbia as a separate region, increasing the total number of direct government appointees from 7 to 8, producing a final board of 15 members. The remaining 7 board members were to be drawn from the public, providers (including health managers), and experts within the country. Although the selection process was left open, it was assumed by the Romanow Commission that governments would ultimately make the appointments, hopefully on the basis of quality. It was hoped, however, that the chair of the HCC would be selected directly by the board in the hope that this would ensure that the chair was accountable first and foremost to the HCC as an organization.
The Actual Health Council of Canada: A Work in Progress
Through 2003, federal/provincial/territorial (F/P/T) negotiations have produced somewhat different structure as set out in the box below. First, powerful provinces such as Alberta, British Columbia and Ontario were skeptical of the need for a HCC. These provinces had agreed in principle to the establishment of a “Health Council to monit or and make annual public reports” in the First Ministers’ Accord on Health Care Renewal on February 5, 2003. But Alberta in particular continued to drag its feet on implementation to the point that health ministers were forced to miss the three month deadline for the establishment of the HCC. Second, the then PQ government of Québec opted out of the HCC immediately by promising to create a mirror organization (Quebec’s Council on Health and Welfare with a new mandate) that would collaborate with the HCC, a position that was acceded to by all other first ministers in the February 5th Accord. (I discuss the position of the new Quebec government under Jean Charest below.)
Not surprisingly, some provinces such as Alberta – a long-time proponent of provincial equality – opposed a regional model of representation. Instead, a model of strict provincial and territorial equality was adopted in which each participating jurisdiction would have one government representative and one so-called public/expert representative. This brings the board total to 27 representatives, including the Chair. The final selection of board members should be made by F/P/T ministers of health before the end of this calendar year. By that time, the mandate and role of the HCC will be finalized and submitted to first ministers for their approval. A more detailed comparison of the HCC mandate and role as set out in the Romanow report relative to the actual mandate and role of the HCC will have to wait until that time.
The F/P/T negotiations on the HCC were mired in controversy from the beginning. Part of the problem stemmed from the fact that, while accepting the Romanow Commission’s recommendation on the need for a new intergovernmental structure for health governance, Ottawa did not provide the full amount of transfer funding recommended by Romanow. In addition, the federal government did not transform the existing cash/tax transfer into a pure cash transfer, also as Romanow recommended, adding confusion to an already heated debate. Some provinces retaliated by trying to limit the scope of the HCC while at least one other province – Alberta – characterized it as a “federal watchdog agency”.
Two Outstanding Features of the Current HCC
The potential health policy benefits of an intergovernmental health council have been discussed for many years.4 The idea of the health council was then refined and extended by the Romanow Commission with both health policy and intergovernmental objectives in mind, and the HCC currently being established has two features that are of potentially great importance for the future of Canadian federalism. The first feature is that the province of Quebec has once again opted out of this partnership in favour of creating its own health council. Although the provincial government promises that its health council will cooperate with the “national” health council, the position entrenches the strategy of “parallelism” that had become the orthodoxy of successive governments in Quebec City.
Parti Québecois administrations in particular have been very explicit about the degree and nature of participation in various intergovernmental bodies that have sprung up in the postwar period in response to the need for federal-provincial collaboration on numerous policy and program fronts. This policy goes beyond simply not participating in pan-Canadian intergovernmental agencies, or restricting such participation to observer status. As in the case of the Quebec health council, it sometimes involves creating parallel institutions within Quebec that replicate the function (and often the form) of various F/P/T institutions. In the health field, this means that Quebec is not a formal partner in a number of the most important F/P/T agencies and arms length bodies created in the 1990s including Canadian Blood Services, the Canadian Coordinating Office for Health Technology (CCOHTA), Canadian Institute for Health Information (CIHI), and Canada Health Infoway, despite the fact that the latter has its head office in Montréal. In addition, the government of Québec has created some parallel institutions, including Hema-Québec and Agence d’évaluation des technologies et des mode d’intervention en santé, as alternatives to participating in Canadian BloodServicesandCCOHTA. Currentlythe CIHI mandate and function is split between two agencies in Quebec – the Institut de la statistique de Québec and the Institut national de santé publique du Québec.
This is a particularly unfortunate development given what Québec – historically a leader in many areas of health care reform and institutional experimentation – could offer the rest of its partners in the federation. And despite the benefits that Québec’s observer status in the pan-Canadian agencies might deliver to that province, it puts a limit on what Québec can learn from its other Canadian partners. It is also disappointing that a provincial Liberal government led by a federalist premier has made no major effort to change this mode of intergovernmental engagement. Indeed, because of Québec’s decision to continue on with its own health council rather than work within the proposed HCC, the Charest government appears to have adopted the policy of “parallelism” as its own.
The second outstanding feature of the HCC is that it is an organization that involves a partnership among the provinces, the territories and the federal government. As such, the HCC bears little relationship to the Council of the Federation as proposed by the premiers since the latter has so far been restricted to a provincial- territorial (P/T) body. More importantly, the proposed Council of the Federation is not likely to have a pro-active mandate in the way it is currently designed. As a slightly more formalized Annual Premiers’ Council (APC), it will likely serve only to reinforce the current tendency of premiers to get together principally to fashion a common position against Ottawa. In most cases, this will emerge as a demand for an increase in transfer payments and/or to provide additional tax points.5
Why do I presume this to be the case when the Council of the Federation has not even begun operating? It is a logical inference based upon the two immediate priorities given to the Council’s first permanent secretariat. Out of the many policy and program issues crying out for improved inter-provincial coordination and collaboration, the premiers have asked their officials within the nascent Council to focus on the “structural fiscal imbalance” between the provinces and Ottawa, and to take over the work previously done by the Premiers’ Council on Canadian Health Awareness, a fancy name for an advertising campaign decrying, in a manner that played fast and loose with the facts, Ottawa’s reductions in health care transfers. Both have to do with money: money that Ottawa collects, and that the provinces argue should come their way given their onerous social policy responsibilities, particularly for health care.
A true Council of the Federation would ideally include all the members of the federation. And despite the degree of decentralization that may have taken place in Canada during the past three decades, the federal government remains an important partner. To build a more powerful agency of the premiers at this time may simply serve to reinforce the cleavage between the two constitutionally recognized orders of government. The most likely end product of a P/T Council of the Federation will be a bargaining position vis-à- vis Ottawa. In contrast, a F/P/T Council of the Federation would begin with a bargain ing position but hopefully end with the tradeoffs and compromises necessary to produce a “national” solution acceptable to most if not all parties. This is the same logic behind the establishment of a F/P/T Health Council of Canada.
That said, we must all recognize the inherent limitations and democratic shortcomings of all intergovernmental institutions, whether P/T or F/P/T, including the HCC with its expert/public input. At the end of the day, each partner in the federation is responsible to the people through its own legislature. Parliamentary accountability requires that the ten provinces, three territories and the federal government must answer for their policies and programs within their own democratically elected legislatures, even when these programs have intergovernmental dimensions. For this reason, intergovernmental bodies must remain non-legal and consensual instruments. They are not a substitute for any parliament or legislature.
Conclusion: Implications for the Future of Canadian Federalism
The HCC will become an instrument to revitalize the federation to the extent that it can achieve both health policy and intergovernmental objectives. This will require both proper design as well as the political will and desire of F/P/T governments to cooperate through such an intergovernmental agency. In some ways, intergovernmental cooperation in one particular sector of social policy – as complex as health care is – may be easier than achieving effective cooperation in a larger instrument such as an F/P/T Council of the Federation. Nonetheless, it is possible that the HCC could be used to test out the concept, and the lessons learned could be used in eventually establishing a more ambitious F/P/T Council of the Federation.
As argued, it is unlikely that a P/T Council of the Federation would improve the current intergovernmental environment. At the same time, if the federal government shows no interest in moving from the current model of First Ministers meetings in which it controls the timing and the agenda of meeting, to a more collaborative Council of the Federation model, then this will add fuel to current arguments in favour of the P/T model. If this occurs, then it is likely that the HCC, based as it is on a different model involving the central government, will soon come into conflict with the Council of the Federation, which is bound to take an adversarial position with Ottawa concerning health care and its funding.
That said, there remains a historic opportunity, particularly regarding the role of Quebec. As the province that has led the charge for a new Council of the Federation, it can convince the other provinces that there may be merit in the F/P/T Council of the Federation so long as the provinces’ role is equal to the federal government’s in terms of chairing the meetings and setting the agendas. The Charest government can also take a major step by agreeing to become a full partner in the Health Council of Canada and bringing to an end the policy of disengagement and parallelism that has dominated the Quebec approach to intergovernmental relations for the past generation. This would do more to usher in a real era of collaborative federalism than virtually any other single change in the months to come.
J. Peter Meekison (October 2003)
In 2001 a Special Committee of the Quebec Liberal Party proposed the creation of a Council of the Federation.1 Newly elected Quebec Premier Jean Charest put this proposal, in modified form, before the Annual Premiers Conference in July 2003. The concept of establishing an institution such as the Council has been raised before in the context of constitutional reform, particularly in the period between the 1976 Quebec election and the 1981 constitutional patriation agreement. More recently the matter was raised during the negotiations leading to the 1992 Charlottetown Accord. The purpose of this paper is to examine its antecedents. Others writing in this series of articles on the Council of the Federation (Council) will comment in greater detail on the specifics of the Quebec proposal.
The Proposed Council of the Federation
These earlier proposals fall into two categories, those that seek to constitutionalize the institutions of interstate federalism, specifically the First Ministers’ Conference or those that seek to restructure the institutions of intrastate federalism, specifically the Senate. As Alan Cairns notes,
From the interstate perspective federalism is viewed primarily in terms of the division of powers…. The political corollary of interstate federalism is that the key institutions of the central government do not have to be structured to reflect territorial particularisms but can operate essentially on the basis of national majorities.
From the intrastate perspective, by contrast, territorial particularisms are given an outlet not only by the control of a government at the state or provincial level, but also in the key policy-making institutions of the central government.2
From an institutional perspective the key distinction between interstate and intrastate federalism is how the provincial voice is expressed, through an intergovernmental forum or through a restructured upper house.
In his 1979 essay “From Interstate to Intrastate Federalism in Canada,” Alan Cairns classified the various intrastate proposals advanced at that time into two categories, “provincial intrastate federalism and centralist intrastate federalism.”3 The former proposals argued for reform generally along the lines of incorporating the principles of the then West German Bundesrat into the Canadian Parliament. The latter approached reform along the lines of “making the central government more responsive to territorial diversities which bypass provincial governments.”4
1. The 2001 Quebec Proposal
Five key provisions, taken from Quebec’s specific recommendations, need to be taken into consideration in positioning this most recent proposal in the context of earlier suggestions.
In summary, the Council, as envisaged in the Quebec paper was the formalization and institutionalization of the First Ministers’ Conference that also included a set of rules for decision making. Governments could establish the Council without a constitutional amendment by means of an intergovernmental accord signed by the first ministers or a more formal intergovernmental agreement. The Council could also be viewed as a potential constitutional amendment-in-waiting and as a possible alternative to the Senate. Thus, while the Council would be initially linked with the executive and intergovernmental relations, as it develops, at some point it could transmute into a legislative chamber. As will be seen below, the dichotomy between the executive or legislative alternatives has been a recurring theme in constitutional reform initiatives.
2. The 2003 Annual Premiers’ Conference Proposal
The Government of Quebec submitted its proposed Council of the Federation for consideration by the Premiers at the July 2003 Annual Premiers’ Conference (APC). As already discussed, Quebec’s original idea for a Council of the Federation was for the creation of a federal- provincial institution. After consideration at the 2003 APC, Premiers agreed to establish a purely interprovincial body.
What emerged from the 2003 APC meeting was a five point plan “to revitalize the Canadian Federation and to build a new era of constructive and cooperative federalism.” The five point plan includes:
The Council of the Federation, as agreed to by the Premiers, is in effect the institutionalization of the Annual Premiers’ Conference. It will “comprise the 13 Premiers who will meet on a regular basis.”7 Premiers scheduled the inaugural meeting of the Council for October 24, 2003 when they “will finalize the mandate and structure of the Council.”8 The Council is to “initially focus on areas of common interest (to the provinces and territories) such as health care issues, internal trade, and the fiscal imbalance.” Assuming the Council of the Federation becomes operational, it will transform the APC from an annual meeting into a permanent organization with staff and budget. The Premiers agreed that the Premiers’ Council on Canadian Health Awareness, established in 2002, will come within the Council’s mandate. Since “similar provincial/territorial coordinating bodies” are also to fall within its mandate, the Council of Ministers of Education may also be included under its umbrella.
In 1956 the Tremblay Commission made the following recommendation:
At present, there is no organization which ensures co-ordination of provincial policies. Yet the provinces should discuss among themselves, without the federal government’s participation, the problems which are properly within their resort. That is the only means of working out a provincial policy, suited to each province but still Canadian in nature. Creation of a permanent Council of the Provinces on the model of the American Council of State Governments would fill a great need. Such an organization seems to us necessary for the preservation of Canadian federalism. If the provinces do not agree to co-operate among themselves, the country’s own interest will finally require the federal government to take over the supreme command.9
The type of structure that might eventually emerge is certainly in accord with this recommendation.
However, one should not lose sight of the second point of the five point plan, the proposal for an annual First Ministers’ Conference. As will be seen below, this idea has a long history. The APC communiqué provides some insights into the Premiers’ thinking. The annual FMC is to be co-chaired and agendas are to be “jointly determined with standing items on health, trade, finance, finance, justice and the economy.”10 Looking at the Premiers’ positions on co-chairing and agendas for FMCs and their objectives for the Council, it is clear that they see the provincial and territorial governments collectively as the equal of the federal government. The very obvious overlap between the responsibilities assigned to the Council and the matters identified for discussion at the annual FMC is a clear indication that the provinces intend to develop a common front for presentation to the FMC.
The Council of the Federation as envisaged by the Premiers does not require any federal response. Implementation of the other four points, however, is dependent on the federal government’s agreement. How the federal government will eventually respond to them remains to be seen.
Constitutional Reform 1968-1982
From 1968 through to the 1992 Charlottetown Accord, Canadians were involved in what Peter Russell has characterized as a constitutional odyssey. This journey has two distinct phases. The first phase is the series of negotiations that began in 1968. The 1976 election of the Parti Quebecois, and its commitment to hold a referendum on Quebec’s place in Canada, forced governments to resolve the matter of constitutional reform. This phase ended with the Constitution Act, 1982, an agreement rejected by Quebec. Thus, at least as far as Quebec was concerned, the constitution remained unfinished business.
The second phase began in 1986 with efforts to start a new round of constitutional discussions, the objective of which was to secure Quebec’s agreement of the 1982 Constitutional amendment. There were two major initiatives in this phase, the Meech Lake Accord, 1987-1990, followed by the Charlottetown Accord, 1991-1992. Both initiatives ended in failure. Constitutional reform discussions essentially came to an abrupt end in 1992 with the rejection of the Charlottetown Accord.
Throughout this quarter century of discussion and debate, several attempts were made to constitutionalize the institutions of intergovernmental relations. There were also efforts to reform the upper house. In both instances proposals for institutional change or entrenchment either built on preceding suggestions or ventured into new territory. Some proposals were made after extensive public consultations others were put forward by individual governments. Whatever their genesis, the various proposals discussed below are the antecedents of the proposed Council of the Federation.
1. The Victoria Charter: 1968-1971
The concept of a Council of the Federation, or some kind of intergovernmental institution along the lines that Quebec has proposed, can be traced back to the very first constitutional conference convened in February 1968. The federal government’s policy position was spelled out in a document tabled by Prime Minister Lester Pearson, Federalism for the Future.11 The document was short on detail but it signaled a willingness to discuss both Senate reform and “perfecting the machinery by which intergovernmental consultations take place.”12
At the end of that conference, First Ministers agreed to examine a number of questions where constitutional reform might be desirable. Two of the matters to be considered were reform of institutions linked with federalism, including the Senate and Supreme Court and mechanisms of federal provincial relations.13 The 2001 Quebec proposal reflects both matters.
The end result of the more than three years of discussion was the June 1971, Victoria Charter. The Victoria Charter included a constitutional provision for the Prime Minister to convene an annual First Ministers’ Conference.14 This suggestion was initially raised by Quebec in 1968 and later expanded upon and agreed to by both Ontario and Alberta. There was no reference to the Senate in the Victoria Charter. Indeed, the Secretary’s Report indicates that Senate reform received scant attention during the three-year review.15
While the intergovernmental negotiations were taking place, a Special Joint Committee of the Senate and House of Commons on the Constitution of Canada was holding public hearings on this matter. In its 1972 Final Report, the Special Joint Committee endorsed the idea of an annual First Ministers’ Conference and noted that “more communication and fuller cooperation among all levels of government are imperative needs.”16 The Special Joint Committee also made some recommendations on Senate reform, including a provincial role in appointing one-half of the members, doubling representation of the four western provinces and giving the Senate a suspensive veto only.17
2. Constitutional Negotiations: 1978-79
The November 1976 election of the Parti Québécois resulted in the resumption of constitutional discussions. This new round began in June 1978 when the federal government released two key documents, A Time for Action and Bill C-60, The Constitutional Amendment Bill. The former was the federal government’s broad policy paper on constitutional reform whereas Bill C-60 outlined the details of a new constitution.
In Bill C-60 the federal government proposed abolishing the Senate and replacing it with a House of the Federation. The new House would exercise only a suspensive veto and would have increased representation from the four western provinces and Newfoundland. The provinces would appoint one-half the members of the House. In this regard, the House of the Federation is similar in design to what the Special Joint Committee recommended in its 1972 Final Report. In addition, the House would have certain special responsibilities, including ratification of appointments to the Supreme Court of Canada and certain other federal agencies. There would also be a “double majority” for legislative measures of “special linguistic significance.”
Bill C-60 also included a new Part in the Constitution, “Federal-Provincial Consultation and Commitments.” The provision from the Victoria Charter authorizing the Prime Minister to convene an annual First Ministers’ Conference was included. The Bill also made it clear that the agenda for such conferences, “shall be decided by those composing the conference.” The Part also included a requirement for the government to consult with provinces affected by the exercise of the declaratory power. The final section was a provision which would allow Parliament to make payments to provinces constitutionally binding, thus limiting Parliament’s authority.
The proposals for the House of the Federation generated considerable debate. As a result of comments and criticisms, the then federal Minister of Justice, Marc Lalonde, issued a more detailed commentary on and defence of the proposed new House.18 The main reason advanced by the federal government for replacing the Senate was “the country and Parliament need a second chamber that will function as a politically effective regional forum….”19 The Lalonde document also included the following comments which attempted to link a restructured second chamber with First Ministers’ Conferences. It stated
With neither the Senate nor the Commons filling an unfettered role as a regional forum, the public debate and reconciliation of regional differences regarding national policies is being increasingly taken over by federal- provincial negotiations or so-called executive federalism.
Executive federalism does, however, have a number of drawbacks.20
Federal-provincial conferences will continue to be essential for the effective coordination of federal-provincial policies, programs and activities; but to the extent that the new House fulfills its role successfully, it will share with these conferences the function of expressing and reconciling regional views about federal policies and legislation.21
The notion that the second chamber and institutionalized federal-provincial conferences (in this case First Ministers’ Conferences) would establish some kind of sharing or equilibrium with respect to the expression of regional views was certainly reflected in Quebec’s proposed Council of the Federation.
In addition to the federal government’s position paper and Bill C-60, a number of other suggestions for reform of the institutions of Canadian federalism were also forthcoming. The Canadian Bar Association, the Governments of British Columbia and Ontario respectively, the Canada West Foundation and the Task Force on Canadian Unity (Pepin-Robarts) all released position papers or reports. These documents included recommendations for institutional reform as part of a more general series of reform proposals. With respect to the type of institutional reform recommended, at that time the preference was to replace the Senate with a new institution based on the provincial intrastate federalism model, an institution patterned after the then West German Bundesrat or upper house.
Each of these documents was released in 1978-1979. Their purpose was to influence the course of federal-provincial constitutional negotiations that resumed with a First Ministers’ Conference in October 1978. For example, the Government of British Columbia tabled a series of position papers at that conference, one of which proposed the creation of a House of the Provinces, based on equal regional representation. British Columbia advanced its idea of a five- region Canada with British Columbia being one of the regions and therefore received 20 per cent of the seats. At the same time the government of Alberta released it position paper, Harmony in Diversity. Alberta recommended an entrenched First Ministers’ Conference and was completely silent on upper house reform.22
The federal government established the Task Force on Canadian Unity (Pepin-Robarts) in July 1977. Its report, A Future Together, was released in January 1979 and was the last of the five documents referred to above.23 The report was also preceded by extensive public consultation. Thus its authors were able to take into consideration the recommendations of the other papers and public input. Unfortunately it was released shortly before the follow-up February 5- 6, 1979 constitutional conference. As a result, it did not really have much effect at that conference.
The Pepin-Roberts Task Force recommended the creation of a Council of the Federation. As they indicated, their proposal “is similar to the [other] proposals ….”24 They selected the name, Council of the Federation, “because it could combine the function of a second legislative chamber in which provincial interests are brought to bear, and a means of institutionalizing the processes of executive federalism (with their confederal character) within the parliamentary process.”25 The Council was a legislative chamber and would replace the Senate. Provincial representation was “roughly in accordance with their respective populations but weighted to favour smaller provinces.”26 Provincial governments would appoint their representatives who would act on instruction. Federal cabinet ministers could participate in the Council’s deliberations but only as non-voting members. While the Council would exercise a suspensive veto on legislation, its powers also included a special role in the ratification of treaties, the exercise of the federal power, certain federal appointments including Supreme Court judges.
To the Pepin-Robarts Task Force the creation of the Council “does not mean that the necessity for intergovernmental meetings and conferences will evaporate.” Accordingly, the Task force also recommended an annual First Ministers’ Conference and in addition the convening of a conference “at the request of any government which secures the agreement of a simple majority of the other ten.”27 Furthermore the Task Force made a recommendation linking the Council and First Ministers’ Conferences. “The Council should be used as forum for the discussion of general proposals and broad orientations arising from conferences of the first ministers on the economy and any other proposals the conference of first ministers may so designate….”28 In addition, they recommended the establishment of “a federal-provincial committee on intergovernmental policy issues.”29 While formation of the Council was dependent on a constitutional amendment, the federal-provincial recommendations could be done through either agreement or amendment.
3. Constitutional negotiations 1980-1982
The 1978-79 round of federal-provincial constitutional discussions ended with the February 1979 First Ministers Conference. Federal elections were held in 1979 and 1980. A few weeks before the end of the 1980 federal election the Constitutional Committee of the Quebec Liberal Party released a paper outlining the Party’s constitutional position. The paper was entitled, A New Canadian Federation, and was commonly referred to as the “Beige Paper.” The party agreed to establish a committee to prepare a report at its November 1977 policy convention.
Following the election of its new leader, Claude Ryan, in April 1978 the committee started its work. Given the fact that the Parti Québécois was planning to hold its referendum in the spring of 1980 it is understandable that the provincial Liberal Party would set out its vision for the future direction of Canadian federalism. It is also a reasonable assumption that constitutional discussions would resume at some point after the federal election and this policy paper would be factored into those discussions.
The “Beige Paper” defined a number of goals for constitutional reform. One was “the creation of an intergovernmental body which permits the participation of the provinces in the government of the nation.”30 The intergovernmental body “would be known as the ‘Federal Council’ to emphasize the fact that it is conceived as a special intergovernmental institution and not as a legislative assembly controlled by the central government.”31 The “Beige Paper” also recommended the abolition of the Senate and that Parliament become a unicameral legislature.32 The proposal, that the Federal Council have no legislative responsibilities, is the major difference between the Pepin-Robarts Report and the “Beige Paper” recommendations. While there are differences in details such as the distribution of the weighted vote, until the various proposals were subjected to the rigours of constitutional negotiation and drafting it is impossible to predict what the final structure and powers of the resultant institution, or for that matter institutions, would be.
A few months after the federal election, the Government of Quebec held its referendum on sovereignty-association. Constitutional discussions resumed in June 1980, following the defeat of the referendum. While Senate reform was one of the matters included on the agenda, discussions on the nature of the reform were inconclusive. The “best efforts” draft proposed a Council of Provinces with equal provincial representation along with the continuation of the existing Senate. Mechanisms of intergovernmental relations were not on the agenda. In September 1980 the negotiations ended in deadlock, following which the federal government embarked on the unilateral patriation of the constitution. The resolution tabled in the House of Commons in October 1980 did not include any reference to Senate reform or annual First Ministers’ Conferences, other than those convened to discuss constitutional reform. The final result of the initial negotiations, parliamentary deliberations, court challenges and the final federal-provincial agreement reached in November 1981 was the Constitution Act, 1982.
In November 1980, a few weeks after the patriation resolution was tabled in Parliament, the Standing Senate Committee on Legal and Constitutional Affairs submitted its Report on Certain Aspects of the Canadian Constitution.33 The Standing Committee was asked to study Senate reform on June 19, 1980 a few days after First Ministers had agreed to the resumption of constitutional discussions. The “report was approved in substance by the committee before the beginning of the First Ministers’ Conference on September 8, 1980….”34
The Standing Committee reviewed the various proposals on Senate reform that had been produced. While acknowledging the need for Senate reform, the Standing Committee rejected the provincial intrastate federalism approach advocated by the Pepin-Robarts Task Force and the “Beige Paper” proposal. They stated that “After intense but dubious attempts at institution- building designed to meet a deeply-rooted provincial grievance a more recent current of opinion is rediscovering the federal-provincial conference, an old and unique Canadian mechanism that could easily provide a practical solution with the minimum of institutional disruption.”35
Accordingly, they recommended an intergovernmental solution as an alternative. They proposed that the First Ministers’ Conference be entrenched in the constitution and be known as the Federal-Provincial Council. Their proposal went much further than the provisions of the Victoria Charter. The Federal-Provincial Council would exercise “an overseeing role that would enable provincial governments to approve federal proposals directly affecting provincial areas of jurisdiction before such amendments are formally considered by Parliament.”36 This provision would include the exercise of federal extraordinary powers “notably the emergency and spending powers.” They recommended “approval of proposals by the council require a vote representing both a majority of the provinces and a majority of the population.”37 As chance would have it, they were prescient in their suggestion, as this became the general formula for constitutional amendments.
The Federal-Provincial Council would also exercise “a coordinating role illustrated by current federal-provincial meetings of finance ministers where an attempt is made at reaching a consensus on the broad orientation of fiscal policy.”38 The Standing Committee considered decisions in this role to be advisory and non- binding.
In some respects the recommendations of the Standing Committee for the creation of a Federal- Provincial Council are similar to the 2001 Quebec proposal for a Council of the Federation. One notable difference is with respect to the exercise of a veto. The former expressly rejected the idea of a single province having a veto whereas the latter adopted the regional veto as its decision making model. The other difference is that the former was expected to be included as part of a larger constitutional amendment package whereas the latter, at the outset, is a non-constitutional body which would limit the scope of its authority.
For the purposes of this discussion the Constitution Act, 1982 as such is not particularly relevant, since none of the proposed reforms to that point was considered for inclusion. Essentially the constitutional reform agenda had been reduced to the matters included in the draft resolution. At the November 1981 First Ministers’ Conference the only documents under consideration were the draft resolution and the amending formula prepared by the “group of eight.” At the beginning of the conference it was agreed that other subjects would not be added.
Any kind of institutional reform by means of a constitutional amendment would have to be considered at some undetermined time in the future.
The Macdonald Commission Report 1985
The 1985 Report of the Royal Commission on the Economic Union and Development Prospects for Canada (the Macdonald Commission) recommended the entrenchment in the Constitution of an annual First Ministers’ Conference. To the Macdonald Commission, “The FMC would not be a legislative body, and its decisions would not be binding on governments. Rather than legislate, it would seek a common policy framework. Formal voting rules, as such, would not be necessary.”39 The Commission appears to have viewed the FMC as more of a coordinating body and not an overseeing one.
They also recommended the creation of Ministerial Councils to support the work of the FMC. These Ministerial Councils were to meet regularly. They specifically suggested “three central Ministerial Councils be established in the fields of Finance, Economic Development and Social Policy.” Not surprisingly the “Council of Ministers of Finance stands as Commissioners’ prototype for the other councils.” In addition, the Commission recommended various degrees of support for these Councils such as “a new federal-provincial body of tax experts, the Tax Structure Committee” to assist Finance Ministers. The Economic Development Council was expected to set up a Federal-Provincial Commission on the Economic Union. This body “would monitor the state of the Canadian economic union, conduct research to identify barriers and possible areas for harmonization and report publicly to the Ministerial Council on these matters.”40
The structure and areas of responsibility assigned to the FMC as envisaged in the Macdonald Commission Report, with the exception of the review of international treaties, is not inconsistent with what Quebec outlined in its 2001 position paper. Since the Quebec approach is non-constitutional in nature, the matter of decision making remains open, in that the Council of the Federation cannot bind its members. Since the Macdonald Commission Report was presented, the federal and provincial and territorial governments signed the Agreement on Internal Trade in 1994 and the Social Union Framework Agreement in 1999.41 The Ministerial Councils and their supporting bodies established by the two agreements are similar to the Secretariats proposed to support the Council of the Federation.
Constitutional Negotiations 1987-1992
1. Meech Lake 1987-1990
Since Quebec did not agree to the Constitution Act, 1982, constitutional reform remained unfinished business. At the 1986 Annual Premiers’ Conference in Edmonton, the Premiers agreed that their top constitutional priority would be immediate consideration of Quebec’s five conditions. In addition, they indicated some matters for discussion in subsequent negotiations, including Senate reform.
In April 1987 First Ministers agreed to the Meech Lake Accord. Certain provisions are relevant to this discussion. In particular, the text included a provision for an annual First Ministers’ Conference on the economy. Although the wording is more specific than what is found in the 1971 Victoria Charter, the Premiers at their Annual Premiers’ Conference had usually called for the convening of such a conference. In February 1985, Prime Minister Mulroney committed to convene an annual First Ministers’ Conference on the economy for the next five years. In effect the Accord was a reflection of what was already occurring and what had received support over the years.
The Meech Lake Accord also included a section that required annual First Ministers’ Conferences to discuss further matters where constitutional reform was considered necessary. One issue that was specifically mentioned was Senate reform. In the years between the Constitution Act 1982 and the Meech Lake Accord there had been a profound change with respect to Senate reform.
Up to patriation the provincial intrastate federalism model had tended to dominate the discussion. The 1980 Senate Standing Committee Report rejected this approach. In September 1981 the Canada West Foundation produced a report which laid the foundation for a Triple EEE Senate.42 In 1984 the Special Joint Committee on Senate Reform unanimously rejected this approach.43 The Macdonald Commission categorically rejected the Council of the Federation model recommended by the Pepin- Robarts Task Force and others.44
In 1985 the Alberta Select Special Committee On Upper House Reform released its report, Strengthening Canada: Reforming Canada’s Senate. The Alberta Select Special Committee recommended an elected, equal, and effective Senate.45 They made it clear at the very beginning of their report that, “while the Senate should be the institution through which people of the provinces can participate in national-decision making, the Senate should not be a forum for intergovernmental discussion. To fulfill that function, First Ministers’ Conferences should assume a constitutionally entrenched place in our Parliamentary system.”46
The Special Joint Committee of the Senate and House of Commons reviewing the Meech Lake Accord reinforced these positions. They were “of the view that there is widespread support for an elected Senate that would more equally represent the provinces of Canada and that could then justify the use of its powers.”47 From the foregoing it would appear that the idea of a reconstituted second chamber, along the lines proposed by the Pepin-Robarts Task Force and others, was no longer a viable alternative.
2. The Charlottetown Accord 1991-1992
After the failure of the Meech Accord the federal government reassessed its approach to constitutional reform. The end result was a vastly expanded list of subjects for inclusion in the review. The federal government released its position paper, Shaping Canada’s Future Together, outlining a comprehensive agenda for reform in September 1991. Among other matters, the position paper included proposals for both Senate reform and the creation of a Council of the Federation.48
As stated in the federal position paper, “The impetus for senate reform stems first and foremost from the conviction held by many Canadians that federal decision-making is not sufficiently responsive to regional diversity.”49 The other reason given for reform was the fact that the Senate was not an elected body. The essence of the reform proposal was to look at the method of election of Senators, the distribution of seats, its legislative authority and other special powers. There was no suggestion that the reform should restructure the Senate along the lines proposed by the Pepin-Robarts Task Force. For all intents and purposes the various proposals to establish the Council of the Federation as a revised upper house of the federal parliament had been rejected.
The Council of the Federation as outlined in the federal proposals went beyond previous recommendations to entrench an annual First Ministers’ Conference. The Council would be an intergovernmental body entrenched in the constitution. It was made clear that “the Council would not be another layer of government.”50 The justification for establishing such an institution was premised on the need “to improve the management of the interdependence of government actions inherent in our federal system.”51
While not a legislative body, the Council would be empowered to make certain decisions. The Council’s decision making process was patterned after the general amending formula found in Section 38 of the Constitution Act, 1982; federal approval and at least seven provinces representing 50 percent of the population. Thus each province would have one vote. There was no weighted system of voting. The territories would participate but would not have a vote. The “Council would be composed of ministerial representatives from the federal and each provincial government; government representatives could vary depending on the nature of the issues being discussed.”52 As worded, the proposal would not preclude the participation of First Ministers. It would not have a permanent staff but would use the services of the Canadian Intergovernmental Conference Secretariat.
The Council’s mandate was as follows:
The first responsibility was predicated on an amendment to Section 121 of the Constitution Act, 1867, the intent of which was the removal of internal trade barriers. Even with the constitutional amendment, the mandate as outlined is similar in its intent to that proposed by the Macdonald Commission. With the exception of a role in treaty ratification, the mandate of the Council in the 1991 federal document is comparable to the 2001 Quebec proposal.
The process of constitutional negotiations during the Charlottetown round was considerably different than the Meech Lake negotiations. A Special Joint Committee of the Senate and House of Commons (Beaudoin-Dobbie Committee) held public hearings on the federal proposals contained in Shaping Canada’s Future Together. In addition, a series of “Renewal of Canada Conferences” were convened in five different cities across Canada. Four of these conferences, or mini constituent assemblies, were convened to examine the different themes in the federal proposals followed by a fifth, the purpose of which was to develop a synthesis of the conclusions of the other four.54 These conferences were concluded prior to the Beaudoin-Dobbie Committee submitting its final report.
One of the conference themes was institutional reform. That gathering was held in Calgary. Two of the institutions studied were the Senate and the Council of the Federation. Given the conference venue, it was not surprising that there was considerable support for Senate reform, particularly an elected Senate. With respect to the Council of the Federation there was little support. One of the criticisms was that it would create a “third layer of government.” Another was a “distrust of executive federalism, or at least of extending and institutionalizing it;” while another was, “ because the Council of the Federation ‘muddied the waters’ it could make reform of the Senate less likely or less effective.”55 Given the lack of support for the idea of a Council of the Federation, it was not even considered in at the fifth and final conference held in Vancouver.
In its Report of the Special Joint Committee on a Renewed Canada, the Beaudoin-Dobbie Committee stressed the importance of the “management of interdependence.” Accordingly, they recommended the inclusion of an annual First Ministers’ Conference to discuss economic and social matters. The Committee adopted the same language as contained in the Meech Lake Accord and but added the word “social”. This change reflects another section in their report, a recommendation to include not only a provision in the constitution on the economic union but also one on the social union. It should be noted that the federal proposals made no reference to the idea of a social union.
The final stage in the Charlottetown drafting process was taking the Beaudoin-Dobbie Committee Report and turning it into a constitutional agreement. The draft legal text based on the August Charlottetown Accord was released on October 9, 1992. Three provisions in the draft legal text are especially relevant to the idea of the management of interdependence.56
The first is the provision for an annual First Ministers’ Conference. The second is the inclusion of a new provision in the constitution committing legislatures and governments “to the principle of the preservation and development of the Canadian social and economic union.” Following this commitment was a list of ten policy objectives. The final section in this provision was a directive to the First Ministers’ Conference “to establish a mechanism to monitor the progress made in relation to the (ten policy) objectives.” The third provision was entitled ‘Framework For Certain Expenditures By The Government Of Canada.” The government of Quebec initiated the inclusion of this provision. The development of the framework was an attempt to put some controls or limits on the exercise of the federal spending power in areas of exclusive provincial jurisdiction. The final section in this provision was also a directive to the First Ministers’ Conference “ to review the progress made in achieving the objectives set out in the framework once each year.”
The rejection of the Charlottetown Accord by the Canadian people in October 1992 brought an end to Canada’s constitutional odyssey. In the years since then there has been no inclination or interest on the part of governments to resume constitutional discussions. Nevertheless, as Harvey Lazar has noted “the period since then [Charlottetown] has been overwhelmingly focused on the idea that Canadian federalism can reinvent itself through non-constitutional means.”57 The Council of the Federation, which is presented as a non-constitutional reform proposal, is the most recent example of this approach.
As demonstrated above, the evolution of the idea of a Council of the Federation has taken many twists and turns since the 1971 Victoria Charter. With the evident rejection of the provincial intrastate model, which emerged around the same time as the federal decision to unilaterally patriate the constitution, what continued to surface was a series of recommendations with respect to the First Ministers’ Conference. Even the Pepin-Robarts Task Force Report made reference to the need for that institution to continue. The Quebec proposals have clear antecedents in the Pepin-Robarts Task Force Report, the 1980 Senate Committee Report, the Macdonald Commission Report and the Charlottetown Accord. Table 1 summarizes the proposals since 1971.
The one issue that is not addressed in these reports or at the 2003 Annual Premiers’ Conference is international agreements. One must look to other sources for support for its inclusion. Something along the lines suggested by Quebec in 2001 has been on the agenda of the Annual Premiers’ Conference for a number of years. The provinces have been pressing the federal government to conclude an intergovernmental agreement “on the provincial-territorial role in the negotiation, implementation and management of international agreements.”58 The federal- provincial dispute over the implementation of the Kyoto accord also underscores the salience of this matter.
What distinguishes the 2003 APC proposal for a Council of the Federation from the foregoing is the decision to establish an interprovincial mechanism. At the same time the Premiers indicated that they want a more structured First Ministers’ Conference. Thus it would appear that two intergovernmental institutions are envisaged, an interprovincial/territorial one and a federal/provincial/territorial one. The two institutions would obviously be linked in some fashion. What is evident in the provincial/territorial approach is their strong desire for an interprovincial structure where common positions can be developed. This strategy has been much more evident at the Annual Premiers’ Conferences since the mid- eighties. They have been reasonably successful in forging a common front and getting the federal government’s attention. Given the emphasis on fiscal imbalance they may feel more comfortable in first identifying their position and then presenting it to the federal government, an approach suggested by the Tremblay Commission in 1956.
The 2001 Quebec paper proposed that, “The Council would have a vertical (federal-provincial) dimension for matters of joint jurisdiction and a horizontal (interprovincial) one for issues under exclusive provincial jurisdiction.” (p.93.) Given recent and possible changes in provincial governments and the change in leadership of the federal government, it is somewhat premature to predict what intergovernmental structures may eventually emerge. Whatever shape the final structure takes the management of interdependence will continue to be a major concern of all governments. At a very minimum the interprovincial structure will become operational.
Alain Noël (October 2003)
On October 24, 2003, in Quebec City, the premiers of the provinces and territories will start establishing the mandate and the structure of a new intergovernmental institution, the Council of the Federation. The stated objectives of this exercise are ambitious. The proposed Council is indeed understood as the centerpiece of what the premiers have presented in Charlottetown, at their Annual Conference in July 2003, as “a plan to revitalize the Canadian federation and build a new era of constructive and cooperative federalism.”
So far, in light of these objectives, the proposed Council appears rather modest an innovation. The model now envisioned is that of a new provincial-territorial co-ordination instrument, that would mandate regular meetings among the Premiers, integrate existing sector- specific councils, provide secretarial and technical support, and prepare the agenda for an annual meeting with the federal prime minister. As such, this Council appears to be little more than a light institutionalization of existing intergovernmental practices. At most, it would be only a first step toward the premiers’ idea of a “new era of constructive and cooperative federalism.” Much more would need to be done and achieved to open up a “new era,” in a context still defined by fiscal imbalance, federal unilateralism, and recurrent intergovernmental conflicts.
In the end, the fate and the impact of the new Council will depend less on its precise shape and structure than on the decisions and actions of the different governments. In this respect, the numerous changes that have taken place or have started in the last year appear truly remarkable. In Ottawa the prime minister is about to leave and is gradually displaced by Paul Martin, who will undoubtedly form a renewed cabinet and call an election not long afterward. In the opposition, the right is uniting and will have a new party and a new leader by the spring of 2004, while the left also has a new leader. Quebec, Ontario, and Newfoundland and Labrador have new governments, each after many years with the same party in power. Manitoba, New Brunswick, and Nova Scotia have governments that have just been re-elected, albeit with difficulty in the Maritimes. Saskatchewan will have contested elections in the beginning of November.
While it is still early to speculate on the future relationships between these different governments, some conclusions can already be reached about Quebec, always a critical player in intergovernmental relations. Indeed, the new Quebec government has clearly stated that it wanted to assume a new role in the federation, and it has outlined its main orientations in a Liberal Party policy document released in October 2001.1 This document and the new approach pursued by the Quebec government since its election in April 2003 give priority to co- decision and collaboration in the federation. Apparently innocuous, these priorities break with a deeply rooted policy stance. Indeed, for decades the Quebec government has always favored recognition and autonomy over cooperation and integration. This change in orientation, which is presented by Jean Charest as an intended break with the past, is in itself extremely significant because over time the foundations of Quebec’s intergovernmental policies have been very stable and largely non- partisan. If this new orientation is sustained, it could have major impacts on both Quebec and Canadian politics. Many uncertainties remain, however, on the depth and sustainability on this political shift. Is the Charest government truly committed to redefine in this way Quebec’s place in the federation? Will the other governments in the federation collaborate and push in the same or in compatible directions? Will Quebec’s various social and political actors accept the transformation envisioned by the new Liberal government, and allow it to happen?
A short commentary written as events unfold cannot answer all these questions. They are worth considering carefully, however, to better understand the politics behind the new Council of the Federation. Indeed, the Council was first conceived in the context of Quebec partisan politics, and whether it will live or die (or merely limp along) will depend as well on the political context, in and outside Quebec.
The first part of this commentary probes the depth of this announced shift in priorities. It contrasts the new approach of the Charest government with past Quebec policies in intergovernmental relations and argues that, indeed, the Council proposal breaks in significant ways with long-standing governmental orientations. The second part considers the sustainability of such a shift, in Quebec and in Canada. It suggests that the Charest government is likely to resist pressures that have proven effective in the past, because it is animated by a broader policy agenda, aimed at changing Quebec society. Over time, however, pressures are likely to mount, especially if collaborative federalism fails to bring significant gains on objectives that will remain central to Quebec society, namely recognition and autonomy.
Something Like a Foreign Policy
“[…] le ministre délégué aux Affaires intergouvernementales canadiennes et aux Affaires autochtones me secondera dans ce que nous pourrions appeler notre diplomatie intérieure.
Cette diplomatie repose sur l’évidence.
Le Québec existe pleinement. Il est maître de son destin. Nous avons la responsabilité de notre différence, de l’affirmer, de la promouvoir. Et je l’assumerai pleinement
We will reclaim Quebec’s identity as a leader in the Canadian federation.”
Jean Charest, Swearing-in Speech, National Assembly, April 29, 2003.
Follow ing the July 2003 Conference, in Charlottetown, after the premiers had agreed on the principle of a new Council, many observers stressed the role that the Quebec government had played in bringing this proposal to the meeting and in seeing that it was accepted and implemented. Quebec, it was said, was assuming a new role, one of leadership, in the federation. This was precisely the impression that the new Charest government wanted to leave, in and outside Quebec. But how significant was this development? Was Quebec’s role so critical in bringing the premiers to a consensus? Was this consensus so meaningful?
As mentioned above, the Council of the Federation envisioned by the Premiers brings, for the time being, only minor institutional changes. Because this is the case, the leadership role of the Quebec government should not be exaggerated. The Charest government did not have a tough selling job in convincing the Premiers to accept a watered-down version of the Council proposed in the Liberal Party’s program. In any case, it was not the first time in recent years that the Quebec government took the lead in defining the intergovernmental agenda. Just a year before, in May 2002, Quebec’s Minister of Finance, Pauline Marois, convinced her colleagues to ask the Conference Board of Canada to extend to all provinces and territories the study it had prepared in February for Quebec’s Commission on Fiscal Imbalance. Then, in July 2002 in Halifax, the premiers all joined the Quebec government in stressing the need to address the fiscal imbalance in the federation.
The key change in 2003, from the standpoint of the Quebec government, had to do not with leadership but with policy orientations. The Council proposal put forward by the Charest government was a major, indeed radical, departure from long-standing Quebec policies. The institutional outcome of this departure may well end up being a modest makeover of intergovernmental relations, but the starting point was not trivial, and it can be understood as a genuine break in Quebec’s intergovernmental stance.
For decades, the Quebec government has pursued two basic objectives in intergovernmental relations: recognition and autonomy. Issues have changed and policies and concepts have varied but, whatever the party in power, the Quebec government has sought a formal recognition of the distinct character of Quebec society and as much autonomy as possible within the Canadian federation. Constitutional debates, conflicts over the federal “spending power,” disagreements on “national” standards, or disputes about fiscal imbalance were all driven by these two imperatives. These priorities did not prevent the Quebec government from making genuine efforts to improve interprovincial cooperation. 2 At times, the Quebec government even conside red the possibility of closer federal-provincial collaboration, but movements in this direction were always subordinate to or conditional upon making progress on recognition or autonomy. The minimalist conditions that were put forward by the Bourassa government in 1986 to accept the 1982 Constitution, for instance, can all be read in light of these two objectives. Likewise, the Quebec government joined the provincial- territorial consensus on the social union in Saskatoon in 1998 only when the provinces accepted to integrate in their demands a provision allowing a province the right to opt out with compensation of a federal program. The general idea was to make progress on recognition and autonomy without preventing other governments from increasing collaboration if they wished.
In the summer of 2003, just a few months after it came to power, the new Quebec government put collaboration first, and it did not associate it with any conditions. The new Council of the Federation was indeed the cornerstone of Jean Charest’s agenda in Charlottetown, and was put forward as a stand-alone project that was intrinsically valuable. In his contribution to this series of commentaries, André Burelle — himself a strong proponent of enhanced intergovernmental collaboration and co-decision — expresses his surprise at the approach adopted by Jean Charest. In proposing further collaboration without demanding anything in terms of recognition or autonomy, notes Burelle, Jean Charest acted with imprudence, and even “temerity.”3 Burelle contrasts Charest’s approach to the Liberal Party report of October 2001, which established a series of other aims, more in line with traditional Quebec demands, including progress on formal recognition, on autonomy, and on fiscal imbalance. It should be noted, however, that this report did not link the different objectives, and did not make co-decision one dimension of a broader compromise, as Burelle had suggested in his 1995 book, Le mal canadien.4 On the contrary, the report states that the Liberal party’s “main concern is to improve intergovernmental relations in Canada, to streamline them and make them more effective.” To this end, new alliances with other governments and non-constitutional “improvements to Canadian federalism” are put forward as short-term priorities, whereas constitutional and more demanding objectives are left for an ill-defined “longer term.”5 In this light, Jean Charest did not act with “temerity” in Charlottetown. He simply applied his party’s new platform, a platform that is cle arly at odds with past policies (and with Burelle’s preferences) in leaving aside, for an indeterminate future, Quebec’s traditional demands for recognition and autonomy. The primary aim of the Quebec government is no longer to promote greater recognition and autonomy for Quebec society; the “main concern” now “is to improve intergovernmental relations in Canada.” Previous goals remain on the agenda but only as a wish list for the “longer term,” or as a sort of mantra that the current leaders of the Liberal party have no interest in discarding too explicitly.
Jean Charest rightly noted in his April 29 swearing-in speech, quoted above, that federal- provincial “diplomacy” gives rise in Quebec to something akin to a foreign policy. He then went on to state that the key to this “foreign policy” was the affirmation and promotion of difference and the necessity to “reclaim Quebec’s identity as a leader in the Canadian federation.” A country’s core foreign policy orientations, however, rarely change, and claiming or reclaiming leadership in the federation has never been a central Quebec priority.
When the Canadian federation was formed in 1867, the French Canadians of Lower Canada saw the new arrangement as a way to preserve the autonomy of a distinct nation in North America.6 For decades afterward, Quebec governments emphasized provincial autonomy, in7a more or less coherent and ambitious fashion. Defined and shaped at the time by the conservative idea of “survivance,” by limited resources, and by a general distrust of state intervention, demands for autonomy were mostly defensive and prone to contradictions. With the Quiet Revolution in the early 1960s, this quest for autonomy was renewed and transformed. Thereafter, the Quebec government sought not only to protect its jurisdiction, but also to obtain some form of recognition or special status, as well as more powers and autonomy than ever before. From then on, federal policies and reform proposals were evaluated not so much for their possible infringements upon provincial jurisdictions, but rather as helpful or not to increase Quebec’s powers and autonomy.
All along, but especially in the 1960s and among Quebec federalists, some ambivalence remained with respect to these more ambitious objectives. Premier Jean Lesage, for instance, started his term in 1960 more or less like Jean Charest, with a professed interest in interdependence and collaborative federalism, and he promoted regular premiers’ conferences and, as well, the creation of a permanent council of the provinces. In 1960, he discussed the matter informally with Ontario conservative premier Leslie Frost, who responded, almost exactly as did Dalton McGuinty when he met Jean Charest in Toronto on October 20, 2003: “All right, Jean, as long as we restrict our meetings to provincial matters…[but] there must not be any ganging up on Ottawa.”8 Soon, however, Lesage came to emphasize provincial autonomy, not in the name of “survivance,” which he considered no longer an issue, but as a means toward the “affirmation of our people” and the transformation of Quebec society.9 Increasingly, Lesage came to focus on recognition and autonomy, leaving collaborative federalism as a side concern. Subsequent Quebec premiers maintained this point of view.
Like Jean Lesage, Jean Charest was first a federal politician, and he brought into Quebec politics some of his former policy orientations. His party’s stance on co-decision, for instance, is very much like the position he put forward when he was leader of the Progressive-Conservative Party. Could Charest and his government change, with time, along the lines followed by Jean Lesage and the Liberal party in the early 1960s? Perhaps, but the context is quite different. Forty years later, the Quebec government is no longer associated with the same social forces, nor is it motivated by the same overall policy objectives.
Is Collaborative Federalism Sustainable?
“Québec is at a decisive crossroads. We have reached the end of the usefulness of a model created 40 years ago by a number of great Quebecers, a model that enabled us to move far ahead. It is now time to review that model to ensure that we can continue to go forward.”
Jean Charest, Inaugural Speech at the Opening of the 37th Legislature of the National Assembly, June 4, 2003.
In October 1964, the federal justice minister, Guy Favreau, and his provincial colleagues agreed on an amending formula that could have allowed the patriation of the Canadian constitution. The “Fulton-Favreau” formula required, in particular, the consent of all provinces before any change could be made to the federal division of powers, a solution that effectively granted a veto to the Quebec government. At first, Jean Lesage agreed with
this proposition and he actively promoted its adoption. In Quebec, however, criticism mounted, many intellectuals and political actors believing that such a rigid amending formula would make it impossible to reach reforms that would grant more powers and an explicit constitutional recognition to Quebec. In January 1966, Premier Lesage announced that his government could no longer support the project. A similar scenario unfolded, more rapidly this time, when Premier Robert Bourassa first accepted a more flexible amending formula in June 1971 in Victoria, only to reject it five days later, after having faced strong opposition from a broad range of voices within Quebec.10 Again, the idea was to avoid jeopardizing a new constitutional arrangement that would grant more autonomy to Quebec. “For me,” wrote Robert Bourassa years later, “what was important was that patriation be accompanied by a genuine restructuring of powers, particularly in the area of social policies.”11
Like Jean Lesage, Robert Bourassa was ambivalent but, in the end, he put recognition and autonomy first. Jean Charest could follow a similar evolution and find that the single pursuit of co-decision and collaboration is not a sustainable policy for the Quebec government. The situation, however, is now very different. For one thing, the informal coalition of nationalists that pressed Lesage and Bourassa in the name of autonomy no longer exists. Many Quebec federalists have become convinced that major changes are not feasible within the Canadian federation and should not be sought. Many nationalists also share these views, even though they draw different conclusions from them. In any case, Jean Charest would not be swayed by such a coalition. His aim is precisely to confront such social pressures, to break with the social and political model inherited from the Quiet Revolution, and to work toward “the reinvention of our society.”12
Jean Charest and his ministers have repeatedly made clear that they consider Quebec’s social and political model to be outdated and inefficient, the product of another era, when there were no computers, no 13 globalization, and no population aging. They consider that they have a mandate to change this model, and need not be refrained by “objections from interest groups that benefit from the status quo.”14 And the objective is not to develop the Quebec state and make its intervention more distinctive, but rather to trim it down to size, to focus on essential governmental missions, and work so that for business “the rules of the game in Quebec are the same as elsewhere in North America.”15
Quebec’s new approach in favour of co- decision is compatible with this conservative project, insofar as it affirms in a different way that increasing the powers, capacities and distinctiveness of the Quebec state is no longer a priority. The policy shift of the Quebec government is thus less exposed to pressures such as those experienced by Lesage or Bourassa. In this sense, it could prove sustainable.
The Liberal project, however, also faces important difficulties. First, it is far from obvious that Quebec’s new found enthusiasm for collaborative federalism is shared across Canada. Other premiers have received politely the proposal for a Council of the Federation, but most seem unlikely to go much beyond a light form of secretariat. Second, in due course the Quebec government’s new approach will have to bear some fruit, and prove successful in at least a few concrete ways. If Quebecers are to leave recognition and autonomy aside, for the longer term, they would need to see some clear advantages to collaboration. The very tangible and immediate problem of fiscal imbalance, in particular, should be addressed, a tall order judging by the reactions that have come from Ottawa — Paul Martin included — thus far. Third, a major social and political debate is now beginning in Quebec, on the fate of a Quebec model that is not as old and rusty as Jean Charest claims. That model continues to be popular and is sustained by a vast array of social forces and institutions. This debate will be a major test for the Charest government. Eventually , it will also bring forward, in one way or another, the perennial issues of recognition and autonomy. These issues remain deeply anchored. They evoke a long quest, which may have left Quebecers skeptical or wary but is still very much in tune with their collective understanding of their place in the Canadian federation.
Claude Ryan (October 2003)
In English Canada, it is generally thought that the 1867 British North America Act created a country with two orders of government, a national government to administer national affairs and local governments to administer local affairs. This vision, which gives a preponderant role to federal power, never received much support in Quebec. Indeed, at least until recently, Quebecers have generaly seen Confederation as the expression of a pact that allowed equal contracting parties to develop in their own way while still being part of a larger whole. According to this vision, the provinces are the prime movers behind Confederation, at least on the historical and political fronts, if not the legal one. Instead of merely being provinces responsible for governing local affairs, they form an order of government that is sovereign within its jurisdiction. Quebec in particular is the seat of government of a national community. Its legislature and government are national institutions, at least in their jurisdictions.
It is therefore not surprising that since 1867, Quebec has steadfastly attributed great importance to all things to do with the defence and affirmation of the province’s powers within the Canadian federation.1 This interest has been expressed in terms of three main issues: the defence and expansion of powers allocated to the provinces, the participation of the provinces in Canada- wide decision-making processes, and the need for more consultation among the provinces themselves. The division of powers and the provinces’ participation in decision-making processes are crucial issues. However, due to a lack of space, this article will focus on the third issue, that is, interprovincial co-operation. This issue became more immediately relevant since the provincial and territorial premiers decided to create a Council of the Federation at their July 2003 annual meeting. In reality, this Council will be – at least until further notice – a Council of the Provinces and Territories. As these governments get ready to establish the council, it is useful to try to understand the historical context in which this body is emerging.
The idea of concerted action among the provinces dates back to the late 19th century. It was first put forward by Honoré Mercier, who became leader of the Liberal Party in 1883, leader of the Parti national (made up of liberals, conservatives and Ultramontagnes with nationalist leanings) in 1885, and finally, premier of Quebec from 1887 to 1891. Mercier was the “father” of what was commonly referred to as provincial autonomism. He was an uneasy witness to the increasing number of centralizing initiatives taken by the federal government during this period and criticized Prime Minister John A. Macdonald for having returned, after the death of Georges-Étienne Cartier, to his old dream of a legislative union. As early as 1886, to ward off this danger he advocated that the “provincial administration…be strong, effective, careful with public monies, independent from the central power and buttressed by national sentiment.”2[translation] He put forward a program focused on vigorously maintaining the principle of provincial autonomy, decentralization at all levels and expanding municipal authority.
Among the means Mercier used to promote his vision of the country was a national conference of provincial premiers in 1887. Mercier had hoped that this meeting – whose participants (in addition to Quebec) were Ontario, New Brunswick, Nova Scotia and Manitoba – would “safeguard the autonomy of every province in the federation by guaranteeing its independence” [translation]. But the absence of two provinces, British Columbia and Prince Edward Island, decreased the effectiveness of the meeting.3 In any event, Mercier’s term as premier of Quebec was short-lived and the 1887 meeting was never followed up. From the early 20th century until the Second World War Canadian political debates were dominated by trade relations with the United States, the First World War, the educational rights of religious and linguistic minorities, immigration, the economic crisis of the 1930s and the resulting increased responsibility for all levels of government, the emancipation of Canada from British tutelage, the rise of totalitarian regimes in Europe and finally the Second World War itself.
In Quebec, there was little talk of constitutional issues during this period. From 1900 to 1936, there were 11 general elections in Quebec. During this entire period, the electoral platforms issued by the two main parties, the Liberal Party and the Conservative Party, included no serious constitutional issues. Nor were any specific commitments made in this regard, other than to defend the rights of Quebec and to try to maintain good relations with the other partners of the federation. Each party functioned in symbiosis with its federal counterpart. After having governed for 35 years straight, in its 1935 electoral platform the Liberal Party unabashedly declared its close ties with the federal Liberal Party. “Ottawa and Quebec,” wrote the authors, “the Liberal Party in Ottawa and in Quebec constitute one party, we walk hand in hand, we are Liberals of the same school, the same colour and the same stripe.”4 [translation]
While the period preceding the Second World War was generally quiet on the constitutional front, in the latter half of the 20th century there were many initiatives. Immediately following the war, the federal government was determined to prevent Canada from being plunged once again into a situation like the Great Depression. It undertook to implement policies based on the report of the Rowell-Sirois Royal Commission, which had recommended that the federal government take a stronger leadership role in economic and social affairs. To this end, Ottawa thought that it should hold on to the expanded taxation powers that it had been granted to finance Canadian participation in the war. Using the substantial resources at its disposal, it put in place not only unemployment insurance, which had been introduced in 1940, but also a variety of income support measures such as more generous old age pensions, family allowance, financial assistance to post-secondary students, hospital insurance, health insurance, welfare assistance and the Canada Pension Plan. It created several programs to extend financial support to the education, health and social sectors: assistance for public school construction, grants to universities, etc. It also undertook to build a stronger network of national cultural institutions: in the wake of the Massey- Lévesque Commission of Inquiry, the Canada Council was created and generously endowed; and the missions of Radio-Canada, the Film Board, the national museums and art gallerie s were confirmed and their funding increased.5
In Quebec, Maurice Duplessis was ardently defending the view that the federal government’s increasing interventions in the areas of social policy, culture and education amounted to an encroachment upon provinc ial jurisdictions. He devoted all of his years as premier of Quebec – from 1936 to 1939 and from 1944 to 1959, but especially in the latter period – to fighting against the federal government’s centralizing tendencies. Duplessis tirelessly advocated a return to the spirit of the Confederation Pact of 1867 and a fairer distribution of tax resources. However, he seldom advanced constructive proposals to improve the Canadian federal regime.
His critics have quite rightly criticized him for his excessive focus on defensive autonomism. Nevertheless, it was under a Duplessis government that Quebec in 1957 established its own personal income tax system and in 1954 patriated the inheritance tax. It was also under his government, in 1957, that Quebec and Ottawa reached an agreement giving Quebec the right to opt out of the federal program of grants to universities with the transfer of income tax points to Quebec. In 1953 Duplessis had appointed the Tremblay Commission to study constitutional issues. Although Duplessis ignored the commission’s recommendations, the broad acceptance they gained in Quebec’s intellectual and political circles while he was alive persisted long after his death. In its report, which appeared in 1956, the Tremblay Commission recommended, among other things, the creation of a Council of the Provinces modeled on the American Council of State Governments.
Since the 1950s the Liberal Party, which formed Quebec’s official opposition, had spoken out against the negative and demagogic nature of Duplessis’ nationalism. However, the party had difficulty shaking off its reputation of being too close to Ottawa, a reputation that it acquired between 1900 and 1940 when the federal and provincial Liberals were indistinguishable and that was reinforced after the Liberal government led by Adélard Godbout made significant tax concessions to Ottawa during the Second World War. Under Georges-Émile Lapalme and Jean Lesage, the Liberal Party tried to turn over a new leaf, and, particularly, to inspire confidence in its defence of Quebec’s rights and interests.
In its 1956 electoral platform, the Liberal Party maintained that “in a federation, autonomy at the provincial government and local administrative levels is essential for the effective management of public affairs.”6 [translation] However, it added, “provincial autonomy goes far beyond saying ‘No’; a positive and constructive attitude is required in order to find appropriate solutions to the problems that the economic and social transformation of Canada has created in federal-provincialrelations.”7 [translation]This Liberal Party platform endorsed the recommendations of the Quebec and Montreal chambers of commerce – also adopted by the Tremblay Commission – for resolving the disagreements between Quebec and Ottawa over fiscal issues. Also based on a Tremblay Commission recommendation, the Liberal Party committed itself to promoting the creation of a Council of the Provinces.
In its platform for the 1960 election, the Liberal Party was even more explicit about federal-provincial relations. While the Union nationale was collapsing under the weight of 16 years of uninterrupted power, the Liberal Party committed itself to emphasizing Quebec’s French character, creating a federal-provincial affairs department, holding an interprovincial conference at which it would present a brief based on the Tremblay Report, suggesting to the other provinces that a permanent Council of the Provinces be created, and proposing that a permanent federal-provincial secretariat be established. 8
Jean Lesage became premier in 1960 and quickly followed up on his commitment to convene a national provincial premiers conference. Since this first meeting, held in Quebec City in 1960, the provincial premiers have met every year in a different province to discuss issues of common interest, each province in turn presiding over and hosting the meeting. Various mechanisms have also been implemented to foster sectoral co-operation among the provinces. A good example of this is the Council of Ministers of Education, created in 1967, which regularly brings together the ministers of education. There is also the Premiers’ Council on Canadian Health Awareness, whose purpose is to increase Canadians’ awareness of health issues. It appears that this recently created body will eventually be integrated into the Council of the Federation.
During the 1960s, Quebec was the main source of Constitutional ideas and initiatives, and it also benefited tremendously from changes in this area. In 1966, Jean Lesage could boast that after six years in power he had increased Quebec’s share of personal income tax revenue from 13 to 47 percent and its share of inheritance taxes from 50 to 75 percent. He had obtained the right to opt out of certain shared-cost federal programs with tax compensation by meeting a number of conditions. He had also established the province’s pension plan.
However, the defeat of the Liberal Party in 1966 put an end to Quebec’s leadership on the Canadian scene, and the federal government spent the next 20 years attempting to regain control over the constitutional agenda. Except for a fruitless interprovincial conference convened by Premier John Robarts of Ontario in 1967, in which Ottawa refused to participate, and the initiatives of the péquiste governments in Quebec aimed at renouncing the federal link, most of the major initiatives taken between 1966 and 1982 came from the federal government. These initiatives had three main goals: (a) to open the door to constitutional change and thus thwart the separatist threat represented by the Parti québecois, a party determined to make Quebec independent; (b) to carry out Prime Minister Pierre Elliott Trudeau’s plan to patriate the Canadian constitution and give Canada a charter of rights and freedoms; and (c) to ensure that all Canadians have equal access to economic and social development, regardless of where they live.
Thus the federal government launched numerous initiatives between 1967 – the year the Union nationale came to power in Quebec campaigning on the theme of “Equality or Independence” – and 1982, when the Constitution was patriated and the Charter of Rights and Freedoms was entrenched. Several summits were held between 1968 and1970 to discuss constitutional reform from the perspective of many other issues, and there was the 1971 Victoria Conference, whose failure was caused by Quebec’s refusal to endorse an agreement that ignored its demand for jurisdiction over social policy matters. Between 1975 and 1977 there was a new plan to patriate the Constitution, which was also blocked by Quebec; in 1978 Ottawa released its document Time for Action and tabled Bill C-60. In 1980 the Pepin-Robarts Report and the Quebec Liberal Party’s Beige Paper were released, both of which supported asymmetric federalism and replacement of the Senate by a House of the Provinces. Both reports were ignored by Ottawa. There was the federal government’s commitment to amend the Constitution in the event of a victory by federalist forces in the May 1980 Quebec referendum and the la unching of a new round of negotiations immediately after the referendum. In 1981-82, without the agreement and despite the protests of Quebec, the Constitution was patriated and the Charter of Rights and Freedoms implemented.9 During this period, successive Quebec governments maintained that in any attempt to amend the Constitution the issue of the division of powers should prevail over the patriation of the Constitution, the adoption of a constitutional amending formula and the implementation of the Charter of Rights.
This analysis of the events of the period suggests that we should be realistic about the scope and limits of interprovincial co-operation and collaboration on fundamental issues. Quebec was not the only province to be apprehensive about federal proposals in the 1967-82 period. On several occasions, the other provinces even supported Quebec’s positions. Thus, in 1976, Alberta’s Premier Peter Lougheed wrote to the prime minister on behalf of his colleagues from the other provinces arguing that the Constitution should not be patriated without a consensus first being reached on issues of crucial importance to Quebec (provincial jurisdiction in the areas of culture and communications, the Supreme Court of Canada, the spending power, Senate representation and regional disparities).10 Subsequently, in 1978, the premiers agreed that the division of powers – a priority issue for Quebec – was “the key issue in constitutional reform, and should be addressed in conjunction with other matters.”11 On a few occasions Quebec sided with the other provinces in constitutional reform measures. In April 1981 Premier René Lévesque signed, as one of eight provincial premiers, a draft proposal for a constitutional amendment formula. Quebec also took part in a judicial process set in motion by several provinces to thwart a federal government plan in 1980 to unilaterally patriate the Constitution. Nevertheless, in 1981-82 the other provinces did participate actively in the major constitutional process that excluded Quebec and its demands and ultimately led to the patriation of the Constitution. The Meech Lake Accord (1987), conceived to make up for the affront to Quebec in 1982, also came to a sad end following Manitoba and Newfoundland’s failure to ratify it.
The Social Union Framework Agreement (1999) is the most recent example of the fragile nature of interprovincial common fronts. As Quebec had agreed to participate in a process to create a Canadian social union, there was a consensus that the provinces should seek an agreement whereby they would retain the explicit right to opt out, with fair compensation, from any shared-cost program that the federal government introduced with the consent of the majority of the provinces. However, the provinces’ consensus on this point, deemed crucial by Quebec, quickly evaporated when they were faced with the lure of increased federaltransfers for health care.12 What all this demonstrates is that interprovincial common fronts are short-lived. They seem to be destined to collapse every time the issue involved reaches a decisive stage where a choice must be made between what Ottawa perceives to be the national interest and the position advocated by a common front of the provinces.
Since the Charlottetown Accord was rejected in 1992, there has been a tacit agreement that the issue of constitutional reform should not be re- opened in the foreseeable future. However, this has not prevented the Quebec Liberal Party from continuing to focus on this issue. The party has published two policy documents dealing with the constitutional question since then, in 1996 and 2001. These documents contain useful elements relating to the affirmation of provincial power.
The first, entitled Recognition and Interdependence, describes federal-provincial and interprovincial co-operation as two necessary conditions for the smooth functioning of Canadian federalism. Since the federal and provincial governments serve the same population and their responsibilities and interventions often overlap, the document says, it is natural that there should be ongoing co-operation among them. For the authors of the document, the need for interprovincial co-operation is self-evident. They suggest that, contrary to what one might think, the main purpose is not to rally the provinces against the federal government, but rather to deal with functional considerations such as the need for provinces to take into consideration the impact of their policies on their neighbours and the common actions that are likely to result from co-operation. However, the report also points out that interprovincial co-operation has yielded modest results, which it attributes to the fact that decisions made within this framework are subject to the unanimity rule. It recommends that decisional rules be made more flexible, but does not suggest possible changes to existing structures of co-operation. Nevertheless, the report favours maintaining distinct structures for interprovincial co-operation. It further proposes that while the federal government should not have the right to vote within these structures, it should be empowered to submit proposals to the provinces and request that a vote be taken to decide on them.
The second document, called A Project for Quebec – Affirmation, Autonomy and Leadership is also referred to as the Pelletier Report. It was named after the chairman of the special committee that drafted the report, Benoît Pelletier, MNA for Chapleau, who became minister responsible for intergovernmental affairs in 2003. This document also emphasizes the need for the dual co-operation. However, it does not reach the same conclusions regarding structures. According to the Pelletier Report, there should be a Council of the Federation, whose aim is to promote federal-provincial co- operation and interprovincial co-operation inside common structures. However, the report says little about the likely composition of such a council or how conflicts between the federal and provincial partners would be arbitrated. The chances of such a proposal materializing appear rather slim. The structure envisaged would in fact require a strong secretariat that functions at an equal distance from the two orders of government and with both levels’ continuous support. This proposal seems to be somewhat unrealistic.
Summing up the results of this overview, it is fair to conclude that many historical precedents could be invoked to justify the proposed Council of the Provinces within the Canadian federation. But it can also be said that most of the ideas put forward and initiatives taken in Quebec to promote greater co-operation among the provinces have been made either by the Quebec Liberal Party or by Quebec Liberal governments. The other political groupings have contributed very little on this issue.
Far from contradicting positions the Liberal Party has advocated for the past half century, the proposal to create a Council of the Provinces is quite in line with them. As is true of most measures relating to intergovernmental co- operation in the Canadian federation, many stumbling blocks will be encountered along the way to achieving this goal. However, to increase the chances of its success, certain conditions should be met. Among other things, the council should:
(a) be an organization of the provinces and territories made up of representatives of the provinces and territories, not of the two orders of government, and its name should reflect its real mission;
(b) pursue objectives that emphasize research, co-operation and joint projects in areas of provincial jurisdiction;
(c) be an effective instrument for developing the role that the provinces must play in defining the common good of Canada and not a launching pad for concerted action against the federal government;
(d) bring together the various existing organizations and mechanisms for interprovincial co-operation;
(e) have operating rules that will empower it to make decisions on issues of common interest; and
(f) have sufficient financial and human resources but avoid becoming a cumbersome structure.
Finally, it should be openly recognized by the various parties that the creation of an interprovincial council will not in itself solve the problem of the provinces’ participation in the constitutional decision- making processes within the Canadian federation.
Hamish Telford (October 2003)
There is an old maxim that army generals are frequently well-prepared for the last war, but ill-prepared for the next war. For the purposes of this paper, I shall play devil=s advocate and suggest that the council of the federation proposed by the provincial premiers is intended to resolve the sort of federal-provincial conflicts we have witnessed over the past few decades, but it may not be adequately designed to govern the federation in the decades to come. Peering into the future is by definition a speculative exercise, but it is important to contemplate future governance issues, if only to dismiss them, before a new institution is launched to govern the federation.
James Rosenau, one of the most prolific scholars of international relations, has suggested that politics is no longer happening exclusively in discrete spheres of governance B international and domestic. Rather, he argues that there are intense political contests happening in the space between these spheres of governance. In short, Rosenau suggests that politics is happening increasingly along the domestic-foreign frontier.1 Rosenau=s frontier metaphor can be extended to capture the emerging dynamics within the Canadian federation.
The simultaneous processes of globalization and localization B what Tom Courchene has termed glocalization B reveal that considerable political activity is happening along the multiple frontiers between the local, provincial, federal, Aboriginal and international spheres of governance.2
The emergence of frontier politics poses a serious challenge to our federal political system. Federalism is premised on the compartmentalization of politics. Frontier politics is characterized by social, political and economic interdependence. The various crises that confronted Canada in the summer of 2003 B SARS, mad-cow, West Nile virus, the electricity blackout in Ontario B all illustrate that contemporary political problems spill over multiple jurisdictional boundaries, and require for resolution the collaborative efforts of local, provincial, federal and international agencies. The processes of glocalization suggest that the Canadian federation is no longer just a partnership of the federal government and the provinces; local governments and Aboriginal governments are also quickly emerging as important partners in the governance of the federation.
The council of the federation proposed by the Quebec Liberal Party is based squarely on the old federal image of Canada as a partnership of the provinces and the federal government, and the council advanced by the premiers at their annual meeting in July 2003 is merely a partnership of the provinces and territories. If the council is going to be an effective institution, it will surely have to include the federal government, and if the processes of glocalization are as powerful as they appear, it may be necessary to incorporate local and Aboriginal governments as well. The creation of a governing council based on an expanded partnership would undoubtedly be challenging, but excluding the emerging partners of the federation may be even more problematic.
The Twin Processes of Globalization and Localization
International relations scholars are fond of saying that the international state system was created with the Treaty of Westphalia in 1648. Political realists argue that the Westphalian state system is characterized by anarchy, which means that there is no authority above states to govern their behaviour, as opposed to chaos and disorder.
Classical realists, such as Hedley Bull, suggest that there is in fact a set of rules that provides a measure of governance in the international system without government.3 On the other hand, neo-realists, such as Kenneth Waltz, believe that the structure of the international system is governed solely by the interests and power of states and not by mutually accepted rules.4 Regardless, international realists, both old and new, are of the view that the international system of sovereign states has not fundamentally changed over the centuries.
In the 1970s, liberal internationalists rejected the realist assumption that states were autonomous actors in the international system, and began theorizing about international interdependence.5 After the fall of the Berlin Wall, many scholars moved beyond theories of interdependence and speculated that globalization would spell an end to the state and even the Aobsolescence of war.@6 We might call this the post-Westphalian camp.
Both the neo-realist and the post-Westphalian paradigms seem over-stated. On the one hand, there is more cooperation in the world than can be explained in neo-realist terms, and on the other hand, states are not disappearing as rapidly as the post-Westphalians would lead us to believe. Mark Zacher has suggested that the story of globalization lies somewhere between the neo-realist and post-Westphalian paradigms. Zacher suggests that the pillars of the AWestphalian Temple@ are decaying, but that states are still important actors in world affairs. Zacher argues that Athe present international transformation…involves the enmeshment of states in a network of explicit and implicit international regimes and interdependencies that are increasingly constraining their autonomy.@7
While the processes of globalization have been eroding the external frontier of the state, there has been an equally powerful trend of localization within the state. Almost two-thirds of the Canadian population now lives in one of the country=s census metropolitan areas, up from about 50 percent thirty years ago. And, in total, almost 80 percent of the CanadianpopulationlivesinAurban@areas. Some people have suggested that in the near-term future, Acities, not nations, will become the principal identity for most people in the world.@8
For Rosenau, the simultaneous processes of globalization and localization reveal Aa world in motion, an expanding and contracting blur of changing orientations, organizations, institutions, and patterns that transform the ways in which people conduct their affairs.@9 Glocalization presents enormous challenges in federal political systems. In short, contemporary political problems do not fit neatly into distinct jurisdictional boundaries, if they ever did, and the governments of Canada are increasingly enmeshed in a complex network of relationships.
From Federalism to Multicentric Governance
The assumption of federalism, at least in the Ango-American federations, is that the responsibilities of governance should be neatly divided between two orders of government. Kenneth Wheare famously defined the federal principle as Athe method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent.@10 This definition is sometimes referred to as classical or dual federalism. Dual federalism allows distinct communities to live independently from one another and preserve their cultural traditions while enjoying the benefits of living in a larger political union. While the Fathers of Confederation did not endorse the theory of dual federalism, the Judicial Committee of the Privy Council consistently interpreted the Canadian constitution in accordance with the principles of dual federalism in the first seventy-five years after confederation.
Dual federalism calls for a sharp demarcation between the international and domestic frontier. In this scenario, the federal government is responsible for dealings with governments and agencies external to Canada, while the provinces are solely responsible for local administration. In some respects, the federal-provincial frontier is still sharply demarcated. It is still widely accepted that the federal government engages international actors, while local governments are creatures of the provinces. The Amerger mania@ that has swept through some provinces demonstrates that local governments are still at the mercy of provincial governments.11 The federal government also demonstrated its desire to maintain its exclusive role in international affairs when it excluded Ontario from the joint Canada-U.S. inquiry concerning the electricity blackout in the summer of 2003.
While elements of dual federalism can still be witnessed in Canada, the practice of dual federalism was seriously challenged by the Great Depression and the post-war construction of the welfare state. To make a long story short, the federal-provincial frontier expanded considerably in the period from the 1930s to the 1960s. Instead of a sharp line demarcating the two spheres of governance, considerable activity was happening in the space between the two orders of government, with few rules and modalities to regulate it. There were benefits and drawbacks to this process of federal-provincial enmeshment. On one hand, a reasonably comprehensive welfare state was created that might not otherwise exist. On the other hand, Canada has endured frosty federal-provincial relations, including a serious unity crisis with Quebec.
The council of the federation was proposed by the Quebec Liberal Party (QLP) to maintain the benefits of collaboration but ease federal-provincial tensions. According to the QLP, the Acouncil would be the focal point for the continuous dialogue and cooperation between the provinces and the federal government that would make it possible to redefine our economic and social relations, and develop them so that we may move towards a new Canadian vision founded on joint decision making.@12 In addition, the QLP proposed that the council be supported by a general secretariat, a secretariat for economic union and internal trade, a social union secretariat, and an international relations secretariat. At their annual conference in July 2003, the premiers agreed only to establish a Secretariat for Information and Cooperation on Fiscal Imbalance and to subsume the Premiers= Council on Canadian Health Awareness under the mandate of the council. While the QLP clearly envisioned a partnership of the federal, provincial and territorial governments, for the meantime the premiers only accepted a council of provincial and territorial governments.
It may be the case though that as the federal government and provinces have become locked in their jurisdictional and fiscal conflicts, the world has passed them by. The processes of glocalization are breaking down the remaining jurisdictional frontiers in the federation. Terrorism and transnational crime, for example, demand that all orders of government work collaboratively. International terrorist and criminal organizations work assiduously to circumvent international borders and regulations. Local police have to work cooperatively with other forces within the province and the provincial attorney-general=s office, the RCMP and the Department of Foreign Affairs, as well as foreign state departments and police forces.
The creation of the Department of Homeland Security in the United States and the implementation of the National Security Strategy have revealed as well the domestic intergovernmental complexities of fighting the global war on terrorism.
The shifting nature of the global economy also has profound local impacts. For example, the global economics of agriculture is straining many farming communities across the country. This is not just an economic problem. Economic hardship strains marriages, which burdens local social services; it affects the behaviour of children in school; it reinforces rural-urban migration, which erodes the social capacity of cities, while leaving rural localities languishing in anomie. The softwood lumber dispute with the United States has similar local repercussions, as does the collapse of the Atlantic fishing industry. Free trade, immigration, the Kyoto Environmental Protocol and other international treaties ultimately have the greatest impact on local communities. Who is responsible for the economic and social consequences of these global trends? Are local governments alone responsible for picking up the pieces? Or should the different orders of government work collaboratively to ameliorate the social and economic dislocation of globalization at the local level? While the provinces have frequently sought to be consulted by the federal government on immigration and international treaties, local governments arguably have an equal or greater claim to be consulted.
Aboriginal communities are probably more vulnerable to the forces of glocalization, but they are perhaps overlooked even more than local governments. Considerable attention has been devoted to the federal-Aboriginal relationship, and secondarily to the provincial-Aboriginal relationship, while the local-Aboriginal relationship is frequently neglected. All Aboriginal communities, however, live in reasonably close proximity to non-Aboriginal local communities. Conflicts over fishing rights in Atlantic Canada and along the Fraser River in British ColumbiaBletaloneOkaand GustafsonLakeB demonstrate that the local-Aboriginal relationship is a critical link in the governance of the federation and needs to be incorporated in the country=s governing institutions.
Glocalization has blurred the jurisdictional boundaries between different spheres of governance in the federation. Modern politics has shifted in large measure from happening within neat jurisdictional boundaries to the expanding space of multiple jurisdictional frontiers. The various orders of government within the federation B local, provincial, federal and Aboriginal B are thus under pressure to cooperate and coordinate their responses to global challenges, often in conjunction with foreign governments and international organizations.
The vertical model of dual federalism, in which the federal government assumes responsibility for international affairs and the provinces look after local affairs, thus no longer seems tenable. We need to conceptualize a new, non-hierarchical model of governance that recognizes the multiple jurisdictional interdependencies at play in the federation, incorporates the inter-connectivity of issues, and builds modalities for intergovernmental collaboration among all the partners in the federation. In other words, we need to shift from our old conceptions of federalism to a broader model of multicentric governance.13 So far, the model only incorporates governments, but there are many other sorts of organizations that provide governance in our society. While business/labour, interest groups, non-governmental organizations, and the non-profit sector have always existed, in this era of new public management these organizations have assumed a greater governance role in our society. In short, all orders of government in Canada have transferred, others might say abdicated, responsibility for some activities to non-government sectors. The model must also allow for the meaningful participation of citizens.
If a council of the federation had been established by the federal and provincial governments thirty years ago, it would likely be easier to incorporate local and Aboriginal governments at this time. But a council of the federation was not created when it was most needed, and now the governments of Canada are faced with the challenge of creating an infinitely more complex governing institution. While it would be easier for the federal government and the provinces to ignore the claims of local and Aboriginal governments, the realities of glocalization may not afford them that luxury.
The Challenges of Multicentric Governance
The governments of Canada are now tightly enmeshed in a complex multicentric network of intergovernmental relations. It would thus seem that the council of the federation needs to be based on the idea of multicentric governance rather than on the old federalism paradigm. The prospect of a multicentric governing council raises many challenging questions. How will the various orders of government be represented on the council? How can decisions be made effectively with an expanded partnership? How will the council ensure democratic accountability? In short, can the council really accommodate all the governing partners in the federation?
Expanding the council of the federation to include local and Aboriginal governments raises the thorny issue of representation. Assuming that the council of the federation could not accommodate representatives from each of the hundreds of municipal and band councils across the country, who would represent municipal and Aboriginal governments? If local and Aboriginal governments cannot represent themselves, what mandate would their emissaries have to negotiate with the other governments? Or would their role be purely consultative?
Even if the roles of local and Aboriginal government representatives were purely consultative, their participation would still be useful. Through consultation with local and Aboriginal representatives, the federal and provincial governments might advance policy prescriptions that better address local and Aboriginal concerns and thus stand a better chance of success when implemented. Local and Aboriginal governments therefore need to be formally incorporated in the governing council, if not at the bargaining table. At the very least, it would seem appropriate for the council of the federation to establish a secretariat for local and Aboriginal relations.
While it seems necessary to expand the partnership and incorporate local and Aboriginal governments in the council of the federation, it may not in fact be necessary to collaborate on all issues. In some areas, such as primary education or the Canadian Armed Forces, the governments of Canada govern adequately with little or no collaboration. In these instances, the water-tight compartmentalization of dual federalism appears to be serving Canada well (notwithstanding the depleted capacity of the Canadian Armed Forces).
When is collaboration necessary? With the sheer volume and complexity of modern governance, the goal should be no more collaboration than necessary. The question must be, Ado we need to collaborate?@ rather than, Ashould we collaborate?@ At the very least, it would seem necessary to collaborate when it is not possible for one order of government alone to accomplish a policy objective. The more difficult issue is to determine when the spillover effects of a policy decision of one government affect the well-being of other jurisdictions, and as we have observed spillover effects appear to be multiplying exponentially under the steady pressure of glocalization.
The spillover problem leads to another challenge associated with multicentric collaboration: how is jurisdictional autonomy preserved? While maintaining jurisdictional autonomy is undoubtedly more challenging in the era of glocalization, it is essential to Quebec for the preservation of its cultural traditions. Some other provinces may share Quebec=s concerns as well, and there is reason to believe that Aboriginal governments will view jurisdictional autonomy as fundamental. While there are no easy answers to this question, the first step is to accept the principle of jurisdictional autonomy as a governing principle. It should be noted though that jurisdictional autonomy will minimize duplication of governmental effort, and should thus be cheaper and more efficient.
Money is crucial for jurisdictional autonomy. If an order of government lacks the fiscal resources to implement collaborative decisions, it becomes dependent on other orders of government for financing, and is thus almost always obliged to accept the terms and conditions of the financial donor. Federal-provincial fiscal relations are already immensely complex, and one can only imagine that future fiscal arrangements with local and Aboriginal governments will exponentially increase the complexity of intergovernmental fiscal relations in Canada. All the more reason why local and Aboriginal governments should be included in a council of the federation.
The key to multicentric government is collaborative decision-making. Collaborative decision-making is made necessary by the interconnectivity of contemporary political issues. But our experience in Canada suggests that collaborative decisions are difficult to reach even when we are dealing with just two orders of governmentBfederalandprovincial. Ifmore spheres of government are added to the decision-making process, it is likely to become more difficult to reach political decisions. Fritz Scharpf, in his analysis of the politics in Germany and the European Union, refers to this dilemma as the Ajoint-decision trap.@ What are the remedies for the joint-decision trap?
One solution is to centralize power and implement decisions through a chain of command. This was how empires were governed. Alternatively, the idea of subsidiarity has been proposed as a means of escaping the joint-decision trap. While subsidiarity is an attractive idea in theory, it is more problematic to operationalize in practice. All too often subsidiarity becomes a fancy justification for a larger government to offload responsibilities to a smaller government, for the benefit of the former and to the detriment of the latter. Canadians are not likely to accept either of these solutions.
Scharpf looks for answers in decision-making theory. He identifies three types of decision-making: confrontational, bargaining, and problem-solving. Scharpf dismisses the confrontational approach (e.g. the threat of separation) as pathological. He thus focuses on the bargaining and problem-solving models. He suggests that the bargaining model is Apremised upon the assumption that participants will pursue their individual self-interest,@ while Aproblem solving in its pure form…is premised on the existence of a common utility function and the irrelevance of individual self-interest for the decision at hand.@ In terms of collective decision-making, the problem-solving model is preferable, but as Scharpf himself acknowledges Athe preconditions of problem-solving B the orientation towards common goals, values, and norms B are difficult to create.@14 For the council to operate as a governing partnership based on the problem-solving model, the members of the council need to accept that they are accountable to the people of Canada and not just the voters of their jurisdiction.
Accountability has proven to be a major problem in Canadian intergovernmental relations over the past sixty years. To date, intergovernmental relations have been exclusively an executive affair. Indeed, it is now often said that Canada is governed by executive federalism, which typically excludes the people and sidelines legislatures. In this fashion, executive federalism creates a democratic deficit. Canadians enjoy democracy at the local, provincial and federal levels. The problem of executive federalism is thus not so much about democracy within each of these orders of government, but between these orders of government. Inotherwords,thechallengeof democratic accountability becomes an issue along the multiple frontiers of governance. The council of the federation, as proposed by the Quebec Liberal Party and as advanced by the premiers, is premised explicitly on the executive model. It would thus seem that the proposed council of the federation is destined to deepen the democratic deficit, unless specific measures are taken to remedy it. The challenge of democratic accountability would be even greater with a multicentric governing council.
For fifty years, Canadians endured the democratic deficit associated with executive federalism, but with the Meech Lake and Charlottetown accords Canadians indicated that they would no longer tolerate elite accommodation, at least in relation to mega-constitutional reform. Matthew Mendelsohn has thus suggested Canada needs to move towards a process of public brokerage that strivesAnot for elite accommodation, but for the accommodation of mass publics, that is, the creation of processes, spaces and institutions where members of the public can engage with elected officials and senior public servants in the forms of deliberation and bargaining that have traditionally been the purview of elites.@15 Mendelsohn=s notion of public brokerage may be viewed as a call for Acitizen engagement@ in intergovernmental relations.
The governments of Canada have made a few tepid attempts to engage citizens in matters of public policy, most notably in the process leading up to the Charlottetown Accord and Lloyd Axworthy=s foreign policy summits. While these sorts of initiative are welcome, they are also problematic in some respects. One problem with these initiatives for citizen engagement is that they increase the demands placed on the citizen. With the steadily declining voter participation rates in Canada, it is not clear that the average citizen is willing to expend greater energy to engage the political process. Still it is possible that if more rewarding avenues of participation were offered, citizens may well re-engage with the political process. Thisistheold>fieldofdreams=thesis: build it and they shall come. This may be true, but it is perhaps more likely that the new opportunities would be exploited by a few special interest groups. Whether by design or default, the attempts to expand citizen engagement have been, to date, highly elitist in nature.
Does this mean that nothing can be done to democratize intergovernmental relations in Canada? Absolutely not. Legislatures, for example, could become more involved in intergovernmental relations, simply by creating standing committees for intergovernmental relations. The council of the federation could also accept submissions directly from the public and other groups. If, in fact, the council cannot provide direct representation for all of the local and Aboriginal governments in Canada, it should, as a matter of course, accept submissions from local and Aboriginal governments that might be directly affected by decisions of the council. Additionally, the first ministers could also hold an annual summit with local and Aboriginal governments.
Intergovernmental relations, furthermore, could be considerably more transparent than they have been in the past. Intergovernmental meetings in Canada have normally been a closed door affair. It is generally believed that real negotiations cannot be conducted in public, but perhaps that logic is flawed. When political leaders meet privately they may feel more free to defend narrow sectional interests and argue more vociferously with their counterparts. Canadians have indicated that they are tired of intergovernmental bickering. Collaboration frequently entails disagreement and a frank exchange of views, but if political negotiations took place in the open, political leaders might feel compelled to appear more cooperative and Canadians might see their politicians working to resolve national problems. In short, open sessions might induce the first ministers to shift away from the classic political bargaining mode of one-upmanship to the more productive problem-solving mode of decision-making, as outlined by Scharpf.
For more than half a century the governments of Canada have wrestled with the problem of intergovernmental relations. The council of the federation has been proposed by the new government of Quebec to facilitate better federal-provincial collaboration. As accepted by the premiers, the council is simply a partnership of the provinces. The federal government will presumably be included in due course, but with the processes of glocalization underway Canada may have moved beyond federalism to the brave new world of multicentric governance. If so, we can no longer afford to view Canada as a simple partnership of federal, provincial and territorial governments. Instead, we need to recognize that local and Aboriginal governments are emerging as partners in the federation. Many contemporary issues simply cannot be solved without their collaboration. Thus, if a new council of the federation is going to govern effectively in the long run, it will have to incorporate local and Aboriginal concerns. At the very least, the council should establish a secretariat for local and Aboriginal relations, or better yet a separate secretariat for each. While expanding the partnership will undoubtedly be challenging, excluding the emerging partners of the federation does not seem like a viable option. We cannot sweep local and Aboriginal governments under the table and pretend they do not exist.
Ronald L. Watts (October 2003)
Introduction: Canadian Proposals
At the Annual Premiers Conference in Charlottetown, July 9-11, 2003, at the urging of Premier Charest and as a first step, the premiers announced the formation of a new formal inter- provincial Council of the Federation. This is to be comprised of the 13 premiers of the ten provinces and three territories, and will meet on a regular basis. The first meeting will occur this month on October 24, 2003, in Quebec City. At that time, the Premiers will finalize the mandate and the structure of the Council. Earlier, the Liberal Party of Quebec, now governing in that province, had included in its program, Un plan d’action, first published in October 2001, a proposal for facilitating both vertical and horizontal intergovernmental co-operation by the establishment of a formal permanent federal- provincial Council of the Federation with its own secretariat. Unlike the original Quebec proposal for a federal-provincial council, the primary focus of this new council will be to serve as a provincial-territorial co-ordinating body. However, in announcing its formation, it should be noted that the premiers did agree upon the need for annual first ministers’ meetings, co- chaired by the Prime Minister and the chair of the Council of the Federation, with agendas jointly determined on such standing items as health, trade, finance, justice and the economy.
Is this new initiative to institutionalize relations among the governments within the Canadian federation a desirable development? It is not, of course, the first time a formal intergovernmental council has been proposed. The Pepin-Robarts report in 1979 advanced some proposals.1 In 1991 the Government of Canada’s ormal proposals which triggered off the discussion and negotiations leading eventually to the Charlottetown Agreement, included a federal- provincial Council of the Federation, although this was not included in the final Charlottetown Agreement 1992.2 Is the Council of the Federation then an idea whose time has now come?
The purpose of my article is to examine the experience of other federations to see what may be learned from them on this issue. Among the approximately 180 politically sovereign states in the world today there are some two dozen federations containing approximately two billion people or about 40 percent of the world’s population, and encompassing some 480 federated states or provinces. There are many variations among these federations in their institutional design, the character of the diversity within their societies, their degree of economic development, and their policy agendas. Nevertheless a common feature among them has been the need for effective internal intergovernmental arrangements. Thus, while there is no single federal model or example that is applicable everywhere, there is much to be gained from examining the similarities and differences in their approaches to facilitating federal-provincial and inter-provincial co- operation and co-ordination. Since many of the problems we face in Canada are common to virtually all federations, examining the experience of other federations in institutionalizing intergovernmental relations may provide us with both positive and negative lessons, i.e. with both effective examples and cautionary tales.
Given the array of federal examples that might be examined, it is necessary for a brief article such as this to select the most relevant and significant examples from among the two dozen contemporary federations. For this purpose I have chosen to focus upon six particular examples. Australia represents a mature federation established in 1901, which like Canada combines federal and parliamentary institutions, and which a decade ago established a Council of Australian Governments (COAG). Germany is a federation, which operating under its constitution of 1949, has highly institutionalized intergovernmental arrangements. A key feature is a federal second chamber, the Bundesrat, composed of delegates, including the Minister- President, from each of the Land governments.
In addition there is a Conference of Ministers- President including the Federal Chancellor which meets regularly. India, whose independence constitution of 1950 was to some extent based on the earlier Indian proposals of 1935, themselves modelled on the British North American Act, 1867, is like Canada a parliamentary federation and contains a diverse multilingual and multicultural society. South Africa’s constitution of 1996 is a very recent example. Although possessing some particularly centralized features, South Africa is included because it has attempted to take the experience of earlier federations, particularly Germany, and improve upon them. Switzerland, which first became a federation in 1848, possesses a distinctively unique collegial form of fixed term executive at the federal level. Its new constitution of 1999 is of interest because it puts a strong emphasis upon intergovernmental consultation and co-operation. Furthermore, the Conference of the Cantonal Governments plays a major role not only in intercantonal co-operation but also in co-ordinating cantonal negotiations with the federal government. The United States differs from Canada in having presidential- congressional institutions. These have led to a pattern of intergovernmental relations considerably less institutionalized than in most other federations.
Interdependence Within Federations
The traditional classical concept of federalism advanced by such authors as A.V. Dicey, the Judicial Committee of the Privy Council in its judgments on Canadian cases, and K.C. Wheare, is that federalism involves dual sovereignties. In a federation federal and provincial (or state) governments exist side by side, each separate and virtually independent in its own sphere of constitutionally assigned authority. According to the traditional account, that was how the classical federations of the United States (1789), Switzerland (1848), Canada (1867) and Australia (1901) began, but developments in the 1930s and then following World War II led in each of these federations to the replacement of ‘dual federalism’ by ‘co- operative federalism.’ The latter involved interdependence and a variety of co-operative intergovernmental relations made necessary particularly by the growth of social programs and the financial arrangements to support them.
In truth, however, interdependence among governments as partners within federations has been a fact from their beginnings. Although the demarcation of the legal authority of federal and provincial powers is one essential aspect of federations, in practice the inevitability of overlaps in responsibilities and political, financial and administrative realities have meant that intergovernmental interrelations have always also been an inherent feature of federations. Studies of the United States by such authors as Daniel Elazar and Morton Grodzins have provided evidence that in the nineteenth century, as in the twentieth, administrative co-operation and political interdependence between federal and state governments was a dominant characteristic of the United States as a federation, despite formal legal pronouncements to the contrary. Similarly, in the case of Canada, Garth Stevenson, in his comprehensive account of federal-provincial relations in Canada during the period from Confederation to the formation of Wilfrid Laurier’s government in 1896, found considerable intergovernmental interaction right from the beginning of the Canadian federation. This was particularly notable in immigration and agriculture, two areas of concurrent jurisdiction and of particular importance in the early decades of the Canadian federation. Between 1868 and 1874 six federal-provincial conferences were held dealing with these issues, and in 1872 the first shared-cost program was initiated in support of immigration. Thus, interdependence among the governments as partners has been a historic feature of the Canadian federation, as of all federations.
What happened in the 1930s, the post World War II period and since has not been something new, but an intensification of what is an inherent characteristic feature of all federations. Three factors contributed to an intensification of this characteristic during the twentieth century: the general trend to increased activity of governments at all levels creating more overlaps, the development of new policy areas such as the environment and energy not contemplated at the time the older federations were designed, and the changing conditions affecting over time the allocations of taxing powers and expenditure responsibilities to different governments and creating vertical and horizontal imbalances. These required intergovernmental transfers and processes and institutions for the periodic adjustment of financial relations among governments. Now as federations move into the twenty-first century, the interdependence inherent within all federal systems is being further extended and complicated by its widened scope increasingly embracing the international and municipal spheres as well.
The inherent and inevitable interdependence among governments within federations often gives rise to ineffective governance or conflicts. Disputes may arise over constitutional jurisdiction, fiscal issues such as revenue-sharing and vertical and horizontal fiscal imbalances, the exercise of the federal spending power, regional development policies, control of natural resources, policies affecting linguistic, religious or cultural differences, lack of consultation and unilateral action by one of the governments, or even simply from a clash of personalities. Most federations have found that reliance simply on the courts to resolve such disputes is insufficient, and that in many instances bodies facilitating consultation and co-operation between governments are a desirable alternative for managing interdependence and fostering co- operation. These will not eliminate conflict which in a situation of interdependence will inevitably arise from time to time. But they do provide a means of managing conflict.
It should be noted that intergovernmental interdependence within federations has two important dimensions. First, there are the vertical relations between governments of different orders, i.e. federal-provincial relations and provincial-local relations. Increasingly such vertical relationships within federations may also involve supra-federation organizations or other countries. A second dimension is the horizontal relationships of different governments within the same sphere, such as inter-provincial or inter- local relations. Typically, in federations both kinds of intergovernmental relations have been important. Within each of these two dimensions, intergovernmental relations may involve all the governmental units within a federation, regional groupings of governments, or be bilateral.
In this context, all federations, both old and new, have had to come to terms with the changing scope, character and varied dimensions of interdependence among governments. An important instrument for this in most federations has been the establishment of both formal and informal councils, committees and conferences. These are usually held frequently enough to enable representatives of the different governments – first ministers, ministers, officials and legislators – to share information, discuss common problems, contemplate co-ordinated or even joint action and where appropriate establish joint bodies or agencies. In most federal polities such formal councils, committees, conferences and agencies have become numerous. Furthermore, recent decades have seen significant developments and reforms, including a number of innovations, in coming to terms with the changing and increasing demands of interdependence among governments within federations.
Examples of Intergovernmental Councils
Australia, like Canada combines federal and parliamentary institutions. Although with the exception of the Loan Council, intergovernmental relations are not referred to in the constitution as amended, Australia has established a number of major formal councils to deal with policy issues that have intergovernmental implications. In this respect Australia has gone considerably further than Canada.
The Council of Australian Governments (COAG) is Australia’s primary intergovernmental institution.3 It was established in 1992 in a movement to reform intergovernmental relations in Australia. COAG is chaired by the Prime Minister and includes all the State Premiers and Territory Chief Ministers and the President of the Australian Local Government Association. It generally meets at least once a year. The main purposes of COAG are to increase co-operation among governments and to oversee and co-ordinate the work of the Ministerial Councils.
There are some 30 intergovernmental ministerial councils dealing with sectoral responsibilities at which a minister of the Commonwealth and of each state and territory attends. A number of these ministerial councils have decision-making mandates assigned by legislation and have voting rules, thus making them genuine intergovernmental co-decision mechanisms. In 2001, COAG reviewed the operation of these ministerial councils and agreed to a number of measures to streamline their operation and improve their ability to make co- decisions.
In addition to COAG there is also a Treaties Council with the same membership as COAG. This body deals with significant treaty negotiations that have an impact on the states and territories, but to date it has met only infrequently.
A complementary institution to COAG is the Leaders’ Forum consisting only of the State Premiers and Territory Chief Ministers. A primary function of this body is to allow the states and territories to reach a consensus, if possible, on issues to be raised with the federal government.
Where issues take on major intergovernmental significance, these issues may be raised in COAG. Typically COAG, after setting out a strategy and action plan may return the particular issue to an appropriate ministerial council for implementation.
Among the major reforms that have been achieved under COAG auspices have been an agreement upon mutual recognition of the regulation of trade in goods and of occupations, an agreement on national gas pipeline access, establishing an intergovernmental process for treaties, introducing a federally collected Goods and Service Tax (GST) whose proceeds go to the states on an equalized basis, a national action plan for natural resource management, an agreement on terrorism and multi-jurisdictional crime, and a National Water Initiative. Key intergovernmental councils such as COAG and the ministerial councils have in Australia played a major role in fostering co-operative and flexible intergovernmental relations.
Germany also combines federal and parliamentary institutions. Its constitutional structure and the complementary institutions that have been established have created a much more highly integrated, indeed interlocking, set of intergovernmental relations than in most federations. A key constitutional factor is that in Germany most of the legislative power has been concentrated in the federal institutions, but most of this legislation is, by constitutional requirement, implemented and delivered by the Land governments. This requires a very high degree of co-ordination between the Federal and Land governments.
In this interlocking relationship, the Bundersrat is a key institution. Established by the constitution as a federal second chamber, its powers include an absolute veto over all federal legislation affecting the Länder (in practice about 60 percent of federal legislation). Its composition, consists of Land delegations each led by its Minister-President (Premier). This means that the Bundesrat and its many committees also serve as a powerful intergovernmental institution for co-ordinating the Federal and Land governments and also the Länder with each other, albeit often along political party lines.
In addition to the Bundesrat and its committees, there have developed an extensive number of other extra-constitutional bodies and procedures for intergovernmental consultation and co-ordination. These include a Conference of Ministers-President (Premiers), in which the Federal Chancellor (Prime Minister) participates, and which meets at least twice a year. There are also numerous conferences of specialized ministers of the Federation and the Länder. Each meets at least once every six months, and each meeting is preceded the week before by a meeting of the relevant state secretaries. These ministerial meetings are significant because they make political decisions, generally on the basis of unanimity, which are considered binding on all parties.
The highly intertwined character of intergovernmental relations in Germany has not been without its critics. Some (e.g. Scharpf) have argued that requiring intergovernmental co- decisions on such a wide variety of matters has led to a “joint decision trap” stifling the initiative and freedom of action of governments at both levels.4 Indeed, in recent years there have been a number of proposals in Germany for demarcating governmental responsibilities more distinctly. Nevertheless, there is a general view that the extensively co-operative character of German intergovernmental relations has contributed to the performance and stability of the German federation.5
India, is a parliamentary federation whose constitution is more closely modelled on the Canadian example. Its institutions of intergovernmental relations have, however, been influenced more by Australian examples, particularly those relating to intergovernmental financial relations.
The constitution presupposes a functional interdependence between the two orders of government. Article 263 provides for an Inter- State Council (ISC) for harmonizing Union-State and interstate relations and for policy co- ordination. It was only in 1990, however, that this enabling constitutional provision was implemented. The ISC has, in practice, yet to come fully into its own.
On the other hand, an extensive number of extra-constitutional intergovernmental forums have been established such as the National Development Council (NDC) set up in 1952 for intergovernmental approval of the five-year plans. There are also several intergovernmental national councils in policy areas such as local government, health and population. As well, under the States Reorganization Act in 1956 Zonal Councils for regional groups of states were established, but except for the Northeastern Council these have not been very active. In the same year some interstate tribunals were established under the Inter-State River Water Disputes Act. In the domain of intergovernmental financial relations, the quinquennial Finance Commissions provided for by the constitution (article 280) have had a significant impact upon the allocation to the states of constitutionally mandated transfers.
All the formal or informal intergovernmental councils have shunned majority rule and have relied instead upon consensus processes with agendas set by the Union in consultation with the states. As a general pattern, Union governments have preferred the informality and flexibility of non-formal intergovernmental forums, finding them more convenient. Nonetheless, the Sarkaria Commission on Centre-State Relations, 1987-8, did recommend the constitutional entrenchment of the NDC as being, along with the ISC, one of the two major organizations of intergovernmental executive relations. It also recommended the streamlining of the Finance Commission and the Planning Commission as the two staff agencies for executive federalism in India.6
South Africa differs from the preceding examples in having a hybrid presidential- parliamentary system. The highly centralized and integrated federal structure in the 1996 constitution was largely modelled on that of Germany. A notable feature of the 1996 constitution is Chapter 3 (articles 40-41) which is entitled “Co-operative Government.” This explicitly enunciates that intergovernmental co- operation is to be the underlying philosophy for the conduct of government and the relations between the three spheres of government: national, provincial and local. Furthermore, to encourage intergovernmental co-operation the constitution empowers the Constitutional Court, if it is not satisfied that every reasonable effort to settle a dispute by intergovernmental negotiation has been taken, to refer a dispute back to the governments involved (article 41(4)).
As in Germany, the South African federal second chamber, the National Council of the Provinces (NCOP), consists of delegates of the provinces, who have an absolute veto on certain kinds of legislation and a suspensive veto on others. Unlike the German example, however, each provincial delegation consists not only of members drawn from the provincial executive, but a majority drawn from the provincial legislature based on a proportional representation of the political parties in the provincial legislature concerned. Including representatives from the legislature in this way was considered a democratic improvement on the German model, but in practice this mixed composition of provincial delegations has made it a less coherent and effective body for conducting intergovernmental relations than is the case in Germany.
In addition to these constitutional provisions a host of other extra-constitutional bodies to facilitate intergovernmental co-operation has been established. A key body is the President’s Co-ordinating Council (PCC), a non-statutory body consisting of the President in the chair, the nine provincial premiers and the national Minister for Provincial and Local Government. The PCC meets twice a year. Its functions include enhancing inputs by the provincial executives on the formulation of national policies, promoting inter-provincial dialogue, resolving national provincial and inter-provincial disputes, improving intergovernmental co- operation, and co-ordinating shared programs. It is, however, primarily a consultative body, its decisions not being formally binding or enforceable.
In addition there are numerous councils consisting of the relevant national minister (MINs) and provincial executive council members (MECs), these councils being referred to generally as ‘MINMECs.’ These have supporting officials’ committees referred to as ‘Technical MINMECs’ which meet frequently.
In 1999 an Intergovernmental Relations Audit recommended a redefinition of the role of the PCC and the MINMECs. It found that the proliferation of informal intergovernmental bodies had led to duplication and tangled linkages. The audit therefore recommended a clarification of roles with more formal co- ordination among the many existing instruments of intergovernmental relations.7
Switzerland, became a federation in 1848. Unlike the parliamentary federations, Switzerland has a distinctive form of federal executive. The Federal Council is a collegial body elected by the federal legislature for a fixed term and composed of seven councillors among whom the presidency rotates annually. This form of executive is also paralleled at the cantonal level. This distinctive institutional arrangement, the tradition of representing all four of the major political parties in the Federal Council, the absence of a prohibition of dual membership in the cantonal and federal legislatures, and the constitutional provision making all federal legislation potentially vulnerable to a referendum challenge, have over the years contributed to a tradition of extensive federal-cantonal consultation and negotiation.
Under the new constitution adopted in 1999, no formal intergovernmental councils were established. Articles 44-49, however, set out principles of federal-cantonal collaboration, including provision for the cantons to participate in decision-making processes at the federal level including federal legislation (article 45(1)), and requiring federal consultation of the cantons (article 45(2)). The new constitution also specifically provides for the participation of cantons in federal decisions on foreign policy (article 55), and for cantonal treaties with foreign countries in areas within cantonal jurisdiction (article 56). To facilitate inter-cantonal co- operation, the new constitution also specifically permits cantons to enter into inter-cantonal treaties and to create common organizations and institutions (article 48). Also at numerous other points in the new constitution, there are specific references to the requirement of federal-cantonal consultation or collaboration.
As a result of these provisions federal- cantonal and inter-cantonal consultation and co- operation is very extensive in Switzerland. No formal federal-cantonal council has been created, but given the existence of 26 cantons, a body for their co-ordination has been considered desirable. The Conference of Cantonal Governments is intended both to facilitate inter-cantonal collaboration and, equally important, to serve as the primary channel for cantonal co-ordination in federal-cantonal consultation and negotiation.8
The United States is distinctive among the federations considered here because of its non- parliamentary character. Within each order of government the institutions are marked by a separation of powers: between the President and Congress, and between the Governors and the Legislatures. This diffusion of power within each level of government has given the character of intergovernmental relations within the United States a distinctive cast.
Intergovernmental relations have as a result involved a wide variety of channels between executives, administrators and legislators in different governments, often with the intervention of various interest groups, in a variety of crisscrossing patterns. This is further compounded by the fact that in a federation of 50 states there is such an enormous variety of state interests that it has been difficult to get agreement on specific matters.
There is nothing, therefore, directly comparable to the executive federalism and formal intergovernmental councils prevalent in the parliamentary federations described above. That is not to say that intergovernmental co- operation does not exist. Indeed, from the very beginning of the federation in 1789, federal, state, and local officials have recognized their interdependence and the need to co-operate in a variety of ways to achieve both their common and separate objectives.9 But while this co- operation has been extensive, it has involved a wide range of separate federal, state and local government offices and officials usually working directly with each other. Currently, there are no general governmental co-ordinating bodies. However, some co-operation of state and local officials occurs through their voluntary, non- profit, national organizations such as the National Governors’ Association, the Council of State Governments, and the National Conference of State Legislatures. For a time, between 1959 and 1996, there was an Advisory Commission on Intergovernmental Relations, which consisted of three members of the President’s cabinet, three members of the House of Representatives, three senators, four governors, three state legislators, three country commissioners, four mayors and three private citizens. During its existence, it did useful work in monitoring intergovernmental relations, but it was dissolved in 1996 when Congress withdrew its funding support in a period of financial constraint.
Conclusions: Lessons for Canada
From this review it is clear that interdependence among governments as partners has been inherent in federations. It is not surprising, therefore, that extensive intergovernmental institutions and processes have been a pervasive feature of most contemporary federations, although the precise form of these has varied from federation to federation depending on their particular circumstances. Indeed, Alen and Ergec, writing about the new Belgian federation, came to conclude that the three fundamental requirements for an effective federation are: (1) a distribution of jurisdiction ensuring autonomy for the federated units, (2) the formal participation of representatives of the federated units in the institutions of federal government, and (3) intergovernmental relations and co-operation.10 Most federations, especially parliamentary ones, have consequently found formal or informal federal-provincial and inter- provincial councils of considerable value for facilitating intergovernmental collaboration. It is also noteworthy that in a number of federations there have been recent reforms to make these bodies more formal and more effective as co- ordinating institutions.
While contemporary federations have ranged somewhere along the spectrum between interlocking intergovernmental relations and arm’s length co-operation, most, it would appear, have developed intergovernmental collaboration to a much greater degree than Canada. Thus, in comparative terms, it must be recognized that Canada has been less well-equipped to manage the contemporary challenges of interdependence than most federations. Federations elsewhere, therefore, illustrate possible improvements, including formal federal-provincial and inter- provincial councils, which Canadians would do well to consider carefully. At the same time, it must be emphasized that there are no universal solutions and that the particular social, economic, political and constitutional context of the Canadian federation must be taken into account.
In considering proposals for a Council of the Federation a number of issues will need to be taken into account. Should it be a federal- provincial or an inter-provincial council? Experience elsewhere suggests that both forms have a vital role. Indeed in some cases elsewhere, for example Switzerland, an inter- provincial council has facilitated federal- provincial negotiations by providing a forum for achieving a prior provincial consensus on federal-provincial issues. On the other hand, in Australia, India and South Africa the emphasis has been upon effective federal-provincial councils dealing with issues of both vertical and horizontal collaboration. In the current context, should the proposal for an interprovincial Council of Federation in Canada be regarded simply as a first step towards a fully federal- provincial Council, or should the long-term objective be two formal councils, one federal- provincial and the other inter-provincial? At least one or other of these further developments will be essential in the long-term.
Another issue is whether provision for a Council of the Federation should be inserted in the constitution or simply be an informal body? Experience elsewhere indicates that federations have often operated with a mixture of constitutional and extra-constitutional councils. As Australia has illustrated, constitutionalization is not essential, but extra-constitutional formal councils do have an advantage over merely ad hoc bodies.
Yet another issue, in view of the increasing importance of major cities, is whether there should be some representation of local governments, as occurs in the Australian COAG. Although there are no obvious examples elsewhere, there is also the issue of whether there should be aboriginal representation as there was during the pre-Charlottetown process in 1992.
In establishing a co-ordinating council in Canada where should the balance between interlocking and arm’s length intergovernmental relations be found? The traditional Canadian emphasis upon demarcating federal and provincial roles and autonomy makes the degree of interlocking interdependence adopted in Germany and South Africa inappropriate. Furthermore, the intergovernmental institutions will need to be genuinely collaborative in character, rather than instruments for intergovernmental imposition. But provision for some formal institutions to improve intergovernmental collaboration and reduce friction and conflict in Canada would appear to be overdue. At the same time, in establishing formal institutions to improve intergovernmental collaboration it will be essential to ensure that they are open, transparent, accessible and responsive in order to avoid any public sense that they will contribute to a ‘democratic deficit.’
Ultimately, the design of intergovernmental co-ordinating councils will need to find a balance between shared goals, provincial autonomy, political stability, democratic transparency and accountability, equity, efficiency and innovative flexibility. Difficult choices and value trade-offs will therefore be unavoidable. But these choices must be addressed since the future effectiveness of the Canadian federation in a changing world is at stake.