Continuity and Change in Canadian Politics : Essays in Honour of David E. Smith [1 ed.] 9781442657083, 9780802090607

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CONTINUITY AND CHANGE IN CANADIAN POLITICS: ESSAYS IN HONOUR OF DAVID E. SMITH

EDITED BY HANS. J. MICHELMANN AND CRISTINE DE CLERCY

Continuity and Change in Canadian Politics Essays in Honour of David E. Smith

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press Incorporated 2006 Toronto Buffalo London Printed in Canada ISBN 13: 978-0-8020-9060-7 ISBN 10: 0-8020-9060-5

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication Continuity and change in Canadian politics : essays in honour of David Smith / edited by Hans J. Michelmann and Cristine de Clercy. ISBN 0-8020-9060-5 1. Federal government – Canada. 2. Federal–provincial relations – Canada. I. Michelmann, Hans J. II. Smith, David E., 1936– III. De Clercy, Cristine, 1967– JL65.C68 2006

321.02’3’0971

C2005-905394-1

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

Contents

Acknowledgments vii Introduction 3 hans j. michelmann 1 Constitutional Politics: In a New Era Canada Returns to Old Methods 19 peter h. russell 2 The North American Free Trade Agreement and Canadian Federalism 40 thomas j. courchene 3 Intrastate Federalism and the Civil Service 64 donald j. savoie 4 Declining Legitimacy and Canadian Federalism: An Examination of Policy-Making in Agriculture and Biomedicine 89 éric montpetit 5 From Collaborative Federalism to the New Unilateralism: Implications for the Welfare State 117 brooke jeffrey 6 Aboriginal Peoples and the Crown in Canada: Completing the Canadian Experiment 147 greg poelzer and ken coates 7 Provincial Coalition Governments in Canada: An Interpretive Survey 170 gregory p. marchildon

vi Contents

8 The Third Phase of the Canadian Citizenship Project: Reform Objectives and Obstacles 195 joseph garcea 9 The Liberal Party, Insensitivity, and Western Canadian Agriculture: Does the Account Still Stand Up? 225 grace skogstad 10 The West in Canada: Through the Scholarship Lens of David E. Smith 245 roger gibbins Conclusion 262 cristine de clercy Contributors 271

Acknowledgments

We would like to express our thanks to all those who helped in preparing this volume for publication. We were gratified by the enthusiastic responses we received from authors when asked to contribute, as well their cooperation in the writing and revising stages of preparing the manuscript. Jacquie Thomarat assisted ably and expeditiously in checking the manuscript for technical errors and helping to ensure consistency in format. Lorrie Burlingham patiently reworked the manuscript to take into account the various changes required for both submission processes, and assured that it conformed to the publisher’s specifications. Nora Russell provided assistance with resolving technical difficulties. We thank two anonymous reviewers for insightful suggestions for improvements. Virgil Duff of the University of Toronto Press gave advice and encouragement at all stages of manuscript preparation. Diane Mew expertly copy-edited the manuscript and provided helpful advice to the editors. Don Story, head of the Department of Political Studies at the University of Saskatchewan, made available departmental resources as these were required. Financial assistance to publish came from the University’s College of Arts and Science, the office of Michael Atkinson, provost and vice-president academic, and the office of the Steven Franklin, vice-president research. H.J.M., C.d.C. July, 2005

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CONTINUITY AND CHANGE IN CANADIAN POLITICS: ESSAYS IN HONOUR OF DAVID E. SMITH

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Introduction hans j. michelmann

This festschrift celebrates the distinguished career of one of Canada’s leading political scientists of the last three decades, David E. Smith, professor emeritus of political studies at the University of Saskatchewan. Professor Smith has spent his entire career at the university, situated in the midst of the prairies that make up so much of the heart of the Canadian West. From this setting, David made a lasting impression on the university, his students, his profession, and the political science scholarship on Saskatchewan, the West, Canadian federalism, and Canadian national government and politics. David came to the University of Saskatchewan in 1964 directly from his doctoral studies at Duke University. He was promoted to associate professor in 1969 and full professor in 1974. Always a good citizen, he has served the university in numerous administrative capacities as a valued member of committees at the departmental, college, and university levels as well as, out of a strong sense of duty, head of the Department of Political Studies from 1997 to 2000. His service to the discipline of political science as well as the academic profession generally has been equally dedicated and extensive. To provide some examples: he has held many positions in the Canadian Political Science Association over the years, from program chair for various conferences and chair of committees, to president of the association; he has served the Social Sciences and Humanities Research Council of Canada in numerous capacities; he chaired the joint management board of the Aid to Scholarly Publications for the Social Sciences Federation of Canada and the Humanities Federation of Canada, and served on committees of their successor organization, the Canadian Federation of the Humanities and Social Sciences; and he served or

4 Hans J. Michelmann

chaired numerous committees of the Royal Society of Canada as member of that most prestigious Canadian academic society. His service to the broader public has included membership for many years on the Historic Sites and Monuments Board of Canada. His contributions to the media as commentator are too numerous to mention: there are few politically interested Saskatchewanians – or Canadians for that matter – who have not heard David on the radio, seen him on television, or benefited from contributions by him in the press. Finally, his services to the political life of his country include briefings to the Canadian Senate and service on the Federal Elections Boundaries Commission for Saskatchewan. He was also invited to brief the governor general of Canada, Adrienne Clarkson, on the Canadian Crown, the theme of one of his recent books. Generations of University of Saskatchewan students have benefited from David’s teaching. At the undergraduate level he has specialized primarily in Canadian topics, teaching courses on national government and politics, provincial politics and, a favourite, his seminar on Canadian government in which federalism played a prominent part. This emphasis on Canadian federalism in his academic career is reflected in many of the contributions to this volume. At the graduate level, his was for many years the major contribution in the Department of Political Studies, in part because Canadian politics and government were topics preferred by master’s students, but in larger part because David’s academic reputation attracted Saskatchewan students and those from across the country, making him a natural supervisor or committee member. Over the years, the cohort of master’s students writing theses under his direction was the largest of any department member. This prominent role came at considerable cost in time and extra effort: it meant much additional work and indeed the teaching of many graduate courses on a non-remunerated overload basis over the years. Characteristically, he undertook these tasks without complaint and with his customary quiet professionalism. He was rewarded by the gratitude of his students as well as their success in the academic, public service, and other walks of professional life. The breadth of these accomplishments is exemplary in itself, but they constitute only a part of his achievements and not necessarily those for which he is best known. It is his scholarship that has made David the pre-eminent political scientist that he is. David began his writing as soon as he arrived in Saskatoon, and true to one of the basic values of the University of Saskatchewan – the emphasis on a sense of place – he

Introduction 5

began to write about the fascinating world of politics in Saskatchewan and in Canada’s West. The province of Saskatchewan, though not a major player in the Canadian federation in terms of economics or population has, despite that, had a disproportionate influence on Canadian politics. Not only has it had its share of colourful, larger-than-life politicians such as Jimmy Gardiner, John Diefenbaker, and Tommy Douglas, whose careers enlivened and enriched Saskatchewan and Canadian politics, but it has also had a major impact on Canadian politics, policies, and institutions. Saskatchewan, unlike its neighbour to the west, has had a strongly competitive party system that, as demonstrated by the political affiliation of Gardiner, Diefenbaker, and Douglas, covered the political spectrum, leading to regular rotation in provincial governments and to a varying partisan configuration in its contingent of MPs. It was in Saskatchewan that the Cooperative Commonwealth Federation (later the New Democratic Party) was founded, where it formed the first socialist government in North America in 1944, and from whence its organizational network extended to the rest of Canada. In Saskatchewan it introduced innovative social policies including medicare, a policy that was adopted at the national level and still remains a defining feature of modern Canada. Saskatchewan also furnished a disproportionate number of outstanding senior civil servants in Ottawa who migrated from Regina, often enough after a change of government in that provincial capital. Moreover, and unlike its conservative sister province to the west, Saskatchewan’s political culture did not spawn significant separatist sentiments: the province remained firmly and positively wedded to the Canadian federation despite economic and social challenges that rivalled if not exceeded those of its western neighbour, whose political movements and governments not infrequently have openly confronted the national government. In other words, Saskatchewan provided not only a rich laboratory for the discerning political scientist, but also a unique perspective on national politics. David Smith has done much to explain to us the fascinating politics and political culture of his adopted province as well as the prairies more generally. His first work was a series of articles and book chapters on Saskatchewan and to a lesser extent on the prairie provinces more generally. These continued in regular succession. His first book, Prairie Liberalism: The Liberal Party in Saskatchewan (University of Toronto Press), was published in 1975. It traces the history of the party from the founding of the province in 1905 until 1971 and examines, among other

6 Hans J. Michelmann

themes, why it thrived for as long as it did in comparison to its counterparts in other western provinces. A reviewer noted that David Smith ‘provides a model for future party histories with his style, scholarship and perception.’ His second book appeared in 1981. The Regional Decline of a National Party (University of Toronto Press) was as enthusiastically received as his previous book – indeed, a reviewer characterizes it as a ‘superb and highly important contribution to the study of Canadian politics, history and society.’ In it, as discussed in greater detail in the contributions by Gibbins and Skogstad later in this volume, he examines the complex reasons that led, after its position of political prominence, to the waning of the party’s fortunes in the West – a development with consequences that continue to be felt in that part of Canada. The books that followed were equally well received. His 1990 book, James G. Gardiner, Relentless Liberal (University of Toronto Press, coauthored with Norman Ward, his colleague and renowned political scientist), examines the subject’s political career in both Saskatchewan and Ottawa, and thus demonstrates a shift in academic focus toward national politics that had been evident in David’s subsequently published work. The book follows first the provincial and then the national career of a most colourful and controversial politician who, as a cabinet minister charged with representing the West, managed to bridge the divide between Ottawa and the periphery. This shift to the national focus was confirmed in The Invisible Crown: The First Principle of Canadian Government (University of Toronto Press, 1995). The significance of its subject matter was not evident to every political scientist, since many consider the Crown an almost exotic, mostly irrelevant artifact of Canada’s historical ties with Britain, and thus an institution of doubtful importance as well as considerable nuisance value given its controversial nature to many Canadians. But the book is not, except minimally, about the monarchy in its personal–representational manifestations, but rather a discussion of the Canadian executive and its central, some would say almost dictatorial, role in Canadian government at the national and provincial levels. Its perspective from the centre of government outward if not downward makes it one of the most insightful contributions to the study of Canadian political institutions. David Smith published a natural sequel to a study of the Canadian Crown in 1999 in a book entitled The Republican Option in Canada, Past and Present (University of Toronto Press). In it he reflected on the Canadian experience from a comparative perspective, not coincidentally at the time of the run-up to the 1999 Australian referendum on the monar-

Introduction 7

chy and thus at a time propitious for comparing the debate on republicanism in the two countries. Smith also examined the republican tradition and experience in other countries, particularly in the republic that Canadians know best, the United States. He argued that Canadians do not have the fear of government that is at the heart of American political culture and thus helps to explain the rigid checks and balances system of the US system, but rather accept responsible government and the active policy role that this form of government enables. Many Canadians will agree that the country that has resulted has been well served by its political institutions, and that David Smith in this book also has expertly explored issues of pre-eminent importance to an understanding of their political tradition. The last published book at this writing is The Canadian Senate in Bicameral Perspective (University of Toronto Press, 2003). In it David explores another Canadian political institution that many find of marginal importance, but again his writing convinces readers of the importance of the subject matter and informs them about the serious implications for the Canadian system of government of the various Senate reform proposals presently being mooted in Canada. But while these books constitute the core of David Smith’s writing, they are far from being his only scholarly contributions. He edited or co-edited an additional four volumes and contributed to their contents. The most notable among these is Building a Province: A History of Saskatchewan Documents (Fifth House Publishers, 1993), the definitive compilation of the most significant documents in Saskatchewan’s political history. His contributions of chapters to volumes edited by colleagues are too numerous to list here and their subject matter encompasses and extends beyond that of his books. In addition, he has published some forty journal articles and an astonishing 140 plus book reviews. And this roster of achievements does not encompass contributions to conference proceedings, and presentations in Canada and abroad. It is hardly a surprise, then, that David Smith has continued his work beyond 30 June 2004 in what has been and will be retirement in name only. He is currently completing the first chapters of a book on the House of Commons that will complete a trilogy on the three institutions at the heart of Canadian government, its executive and its two Houses of Parliament. In short, he is and will continue to be a prolific scholar who has made contributions to the scholarship on Canadian politics and political institutions that have not been surpassed in quality and quantity, and will assuredly not be for some time to come.

8 Hans J. Michelmann

The esteem in which David is held in the scholarly community undoubtedly explains the immediate positive response by the University of Toronto Press to the request that it publish this volume when its executive editor, Virgil Duff, was first approached about the project. The two co-editors can think of no more fitting or prestigious venue in which to present this tribute to David than in the press that has published all his major works. This esteem also explains the eagerness with which the authors of chapters in this volume responded to the request that they contribute to honouring him in this festschrift. It is fitting, given his national reputation and the scope of his scholarship, that they come from universities across this land including, quite naturally, from his home institution. Among the participants in this festschrift there are also two former students, Cristine de Clercy and Brooke Jeffrey. The co-editors explicitly decided not to define and focus the topics of the contributions narrowly, in part because the resulting volume might not have properly reflected the breadth of David’s contributions and also because we felt that the authors would do their best work if they were allowed maximum latitude in their choice of topics. Hence the chapters touch on many of the most important aspects of contemporary Canadian politics, institutions, and public policy and thus provide an up-to-date overview of many facets of contemporary writing on politics in Canada. The frequent references to David Smith’s work are, of course, hardly surprising given the breadth of his scholarship. The first five chapters focus on Canadian federalism, a topic that is key for understanding Canadian politics and one that was at the centre of David’s teaching and writing. Russell’s chapter provides a framework for this part of the book by analysing the contemporary dynamics of the constitutional discussion in which Canadians attempt to attain a balance between national and provincial government powers. The following chapters continue this theme and examine other major aspects of the quest for this balance. They focus on factors, both domestic and international, that impinge on the relations between Ottawa and the provinces, while at the same time highlighting the conduct of relations between the two levels of government in a variety of policy sectors. Chapter six examines the Canadian experience with provincial government coalitions, thus highlighting a relatively rare phenomenon in the nation’s political life that is very likely to become more common in future, and at the same time introducing the discussion of the functioning of Canadian governmental institutions that featured so prominently in David Smith’s writing. Chapter seven examines the relationship

Introduction 9

between Canada’s first nations and the Crown, and by so doing, links the most ancient of Canadian institutions with a most contemporary Canadian political issue. Chapter eight focuses on the basic components of the political system – individual citizens. In discussing the extended legislative process of defining citizenship and thus the definition of the relationship between the individual and that system, it sheds light on the very functioning of Canada’s national political institutions. The final two chapters address David Smith’s writing directly, and quite fittingly, return to his well-known work on the Liberal party and the Canadian prairie West. Chapter nine examines agriculture, a policy sector that has long been at the heart of the dialogue between Ottawa and the prairies, while at the same time asking whether David’s findings of decades ago concerning the party’s regional insensitivity apply even now. Chapter ten honours David’s contributions to Canadians’ understanding of the region that he has called his home for forty years, thus providing direct evidence, if that is required, of his impact on the study of politics in our country. It is time to examine more closely the content of individual chapters. No book on Canadian political developments would be complete without a discussion of constitutional politics. Peter Russell’s chapter addresses this theme, one that was long a mainstay of political discourse in Canada but which has been on the back burner for some ten years or more, at least in comparison to the decades before. Canadians, accustomed for many years to witnessing unceasing and often futile attempts to adjust the formal legal relations between the federal and provincial governments, and/or to reform national political institutions in what Russell calls ‘mega-constitutional’ style, could be forgiven for concluding that attempts at constitutional change have ceased. But in updating the discussion on this most Canadian of political topics he shows us that this would be an erroneous conclusion. Russell frames his contribution by juxtaposing two models of constitutional change. The first he identifies as being best characterized by the political thought of Edmund Burke, with its emphasis on gradualism and organic interdependence of formal and informal features. The other he identifies with the comprehensive contractualism of John Locke, that implies deliberate and dramatic efforts at making constitutional changes and subjecting them to popular approval. Arguing that the former approach was characteristic of Canada’s first century, he demonstrates that the period from the late 1960s to the early 1990s can be characterized as Canada’s Lockean interlude. And interlude it was in the sense

10 Hans J. Michelmann

that constitutional practice has reverted to the more traditional pattern. In convincing fashion he analyses the features of the present dispensation, in which change is undertaken one bit at a time. Thus we have an elegant overview of recent constitutional developments, informed by a framework with both temporal and theoretical dimensions, and with it an update of a key feature of Canadian federalism as well as a demonstration through examples that incremental, small ‘c’ constitutional change has returned to Ottawa and to the provinces. Thomas Courchene examines political change from another perspective, also assessing its implications for federalism and constitutional change. He addresses a dimension of the discussion on Canadian federalism that remains largely unexplored in the traditional treatment of that subject. Canada’s economy is increasingly reliant on foreign trade and becoming more integrated into the North American economy by virtue of its membership in NAFTA. The implications for Canada are significant: the country is less and less a national economy and more and more one whose provinces are ever more closely tied to their counterparts south of the border. The results are diverging trade and economic interests that are difficult to manage in Ottawa because of attendant decentralization and increasing policy asymmetry. Membership in NAFTA brings with it increasing entanglements in American policies and regulations, while the American emphasis on national security in the aftermath of 9/11 leads to calls for ever-increasing integration, if only so that unilateral security measures do not impede the flow of trade between the two countries. Courchene speculates that the states and provinces of NAFTA’s three federations may become more closely involved in the processes that govern the agreement, thereby becoming active players of an emerging North American community with all the potential ramifications of such a development for government in Canada. The Canadian reaction to these developments has been a series of intergovernmental agreements meant to counter the north-south thrust with initiatives to maintain east-west linkages: the Agreement on Internal Trade, the Social Union Framework Agreement and the Council of the Federation. Courchene characterizes these as the development of inter-governmentalism and co-determination that is transforming governance in the federation. There are further implications of NAFTA membership for Canadian federalism. What he identifies as global city regions, because of their concentration of knowledge, human capital, and innovation, are evolving as the lead actors in Canada’s economic

Introduction 11

relations with the world, including pre-eminently its NAFTA partners. For that reason, there are strong pressures to alter present constitutional arrangements and to allow cities more direct relations with the federal government. In responding to evolving global interdependence, then, it is necessary to rethink Canadian political practices so that a renewed and revised federalism ensures that Canada maintains and enhances its competitiveness while guarding its sovereignty. Donald Savoie discusses intrastate federalism, the protection and promotion by structural or other means of regional interests within the central government. But whereas practically all Canadian academic work on the subject examines the promotion of regional interests in the central legislative institutions and the political executive, his chapter focuses on the capacity of the federal civil service to be sensitive to the regions and to deal effectively with their concerns. In doing so, he provides a succinct and insightful overview of the civil service’s development, from its roots as an institution patterned, like so many of Canada’s political structures, on a highly centralized British national government. He argues persuasively that the basic structural features of this model have not changed much, notwithstanding the very different circumstances of national government in Canada with its vast geography and diversity of regional interests. And the structure and functioning of the civil service matter a great deal. Its unquestioned power over public policy has increased ineluctably as government business has grown in complexity and scope, as cabinet ministers pursue their political tasks, and as lobbyists, ever attuned to the locus of power, address their concerns to the most senior levels of bureaucracy. Civil servants, given cabinet government and the absence of precedent and incentive, have not much involved members of the House of Commons or non-elected senators in their work, much less taken instructions from them. Departments are organized on sectoral and client, not regional, lines. While regional interests are fought out in cabinet, public servants generally do not become involved in regional brokering, considering this to be cabinet’s role because of its great political sensitivity. On top of all this, the central agencies, as well as senior civil servants and policy advisers, are located in Ottawa. How to make the civil service apparatus more sensitive to regional needs? One answer is representative bureaucracy, and Savoie points out that through affirmative action measures the civil service has hired more women, francophones, aboriginals, members of visible minorities, and persons with disabilities. Yet efforts at making the civil service region-

12 Hans J. Michelmann

ally representative have been much less emphasized. Savoie examines the extent to which the senior civil service is representative of Canadian regions in terms of place of birth and education. He also looks at where its members are stationed, both to get a measure of their regional experience and the extent to which the senior civil service is visible and active in the individual regions. He gives recommendations as to how it can become more effective by both learning about and serving them, recommendations that if implemented would go some way towards finding an intrastate remedy for a major shortcoming in Canadian government – the lack of sensitivity in Ottawa to regional concerns. Éric Montpetit examines policy and policy-making in the Canadian federation. In so doing, he addresses three important questions about the nature of Canadian federalism: Is Canadian federalism conducive to effective policy formulation? Do recent developments in the Canadian federation contribute to the effectiveness in the resolution of problems? Do these developments threaten the legitimacy of the Canadian federal system? The third question would, right at the outset, seem to give away the chapter’s answer to the first and second, and Montpetit indeed argues that the federal government’s approach to policymaking in recent times leaves much to be desired. Relying on the work of such theorists as Fritz Scharpf and Claus Offe, he develops his argument by first establishing the criteria by which policy-making will be assessed. These criteria are two types of democratic legitimacy, input-oriented and output-oriented. Thus he makes clear that his test of effective policy-making is the assessment by citizens of both the process and its outcome. He argues that input-oriented legitimacy is difficult to attain in Canada, given the country’s diverse political culture and the resulting lack of consensus on values and legitimate decision-making procedures. Hence policy-making legitimacy, such as it was or is, depends on acceptable policy outcomes. To examine input-oriented legitimacy, Montpetit first sets out to establish that the characteristic policy-making style in the Canadian federation in the post-World War Two era was executive federalism. This governing style entailed considerable distance between Canadian citizens and the federal government. However, a number of developments in the last decades have brought about a new climate in Canadian federalism. The advent of the Charter of Rights and Freedoms and its emphasis on individualism, the rise of schools of thought such as the new public management and participatory policy analysis that stress

Introduction 13

new ways of bringing governments closer citizens and discrediting elite-centred policy processes and the close outcome of the 1995 Quebec referendum have induced federal government officials to establish more direct links with citizens. For Montpetit, this innovation in policymaking led to a transformation of Canadian federalism in which the federal government’s motives were not so much to increase democratic legitimacy as to vie for advantage in the competition for legitimacy between the federal government and the provinces. The result is an increasing propensity for decision-makers at both levels of government to resort to blame-passing which, in turn, reduces the system’s legitimacy. Montpetit illustrates his argument by examining contemporary policy making in two sectors, agriculture and biomedicine. In each case, outcomes were unsatisfactory both substantively and because policy makers were unable to convince the public that policy outcomes served the public good. Hence outcome-oriented legitimacy suffered, and because input-oriented legitimacy has been and continues to be lacking, the overall legitimacy of the system has diminished, certainly in comparison to the extent it existed during the era of executive federalism. To remedy this state of affairs, the author advises that there be a return to executive federalism because efforts by the federal government to establish input-oriented legitimacy Canada-wide are destined to be futile, while executive federalism promises a less confrontational decision making style, practical results, and efforts by decision makers at both levels of government to legitimize policy outcomes rather than resort to blame-passing. Brooke Jeffrey’s chapter addresses the same issue as that of Éric Montpetit: contemporary federal-provincial relations. Both find them to be conflict-ridden and often unproductive, leading increasingly to unilateral action by both the federal government and many if not all provincial governments. But while the authors agree that executive federalism broke down two decades ago, Jeffrey does not see a resolution in its resurrection as does Montpetit – in fact, she makes no prescriptions in this regard. She is also less likely to see the primary sources of discord at the federal level, and more inclined to find them in provinces. Montpetit uses the empirical focus on agriculture and biomedicine to demonstrate a more general argument about federal-provincial relations, whereas Jeffrey’s chapter takes a somewhat more restricted approach to that topic, examining whether in the aftermath of the

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collapse of executive federalism the period of collaborative federalism announced by the federal government truly characterized its relations with the provinces. Her empirical focus is on welfare state policies, a policy sector in which federal-provincial relations clearly play a central role. She provides a comprehensive overview of developments in that sector, beginning in 1984 with the first Mulroney government. But she devotes most of her attention to the Chrétien governments, skilfully contextualizing her analysis of policies within the major political developments of that period. Thus we see the effects of the Quebec referendum on relations between Ottawa and provincial governments in the policy sector, the impact of federal deficit reduction on social policy initiatives and spending at the two levels of government, and the opportunities for federal initiatives brought about by the decline of support for separatism in Quebec as well as by the travails of the Reform Party in the aftermath of the 2000 election. Like Montpetit, she finds a federal turn toward unilateralism in the late 1990s, but she sees this less as resulting from a comprehensive political strategy by the federal government to establish closer links with its political constituency, and more as a result of federal efforts to meet needs it perceived in such areas as child care and housing policy. This federal unilateralism, she argues, was followed by provincial unilateralism, often at cross-purposes with the intended effects of federal policy and thus to the detriment of the groups the policy was to benefit. Indeed, the story of the effects of federal-provincial relations for the welfare state in recent years is a sad one, certainly not one to be characterized as collaborative federalism. Most of the chapters on federalism so far have reflected the standard assumption that Canadian federalism is essentially about two levels of government. Ken Coates and Greg Poelzer make no such assumption in addressing another issue of ongoing concern in Canadian political life – the status of Aboriginal peoples in the Canadian constitutional and political systems. They outline the history of the more than two and one half decades of negotiations between Aboriginal peoples and Canadian governments, both federal and provincial, on the issue of self-government. They seek to provide a different set of arguments than that in the existing literature for the creation of a third level of government, constitutionally recognized, that serves Canadian Aboriginals’ needs and aspirations. They begin by defining the term ‘third level of government,’ pointing out that Canada’s constitution recognizes two levels, though there are,

Introduction 15

of course, municipal governments which are creatures of the provinces. Aboriginal governments as a third level of government, on the other hand, are to have sovereign status in the sense that their powers, unlike those of municipal governments, are to be constitutionally protected. The authors point out that such a constitutional arrangement already exists in Canada since the creation of the Nisga’a Lisisms government, which they see as a model for the governing of other Aboriginal communities. The authors demonstrate that, in addition to this precedent, Aboriginal self-government accords well with Canadian political tradition – a tradition that has always accommodated group rights. What is more, in line with the practice in other federal systems, Canadians, while still citizens of Canada, are subject to different laws and enjoy different rights depending on their province of residence. Hence the argument that self-government would illegitimately bestow special status and rights on Aboriginal peoples, is not sustainable. The authors also provide positive reasons for aboriginal self-government. Borrowing from de Tocqueville, they argue that the setting up of local governments of a human size leads to vibrant communities in which democracy is exercised actively and effectively, thus contributing to the health of the larger political community. Borrowing from David Smith’s masterful treatment of the Crown’s role in Canadian government, Coates and Poelzer demonstrate how that institution underpins both the creation of separate and sovereign levels of governments and the creation of an all-embracing political community at the national level. Concomitantly, the special relationship Aboriginal peoples have had with the Crown for historical reasons legitimates their right to selfgovernment and affirms their membership in the broader Canadian political community. However, by the same token and despite the claims by Aboriginal leaders that they are in a dialogue with the Canadian political community in which their exclusive interlocutor is the federal government, they must recognize the provinces as legitimate partners in the discussion of Aboriginal self-government, for constitutional reasons that David Smith has identified and for practical reasons because many of the powers they are seeking are under provincial jurisdiction. It is for that reason that the establishment of Aboriginal self-government, while of different status than municipal government because of its claims to sovereignty, creates a third level of government in addition to the federal and provincial levels. Aboriginal self-government, then, is legitimate on constitutional and historical grounds as well as a matter of equity, and it is desirable because it bestows on Aboriginal peoples a

16 Hans J. Michelmann

greater opportunity to participate in the governing of their lives, while enriching Canadian democracy. Greg Marchildon’s chapter on provincial coalition governments addresses two topics that are prominent in David Smith’s work – provincial politics and Canadian political institutions. While the empirical focus is on provinces, more precisely the four provinces that have experienced coalitions, the subject has relevance also for national politics since executive-legislative relations at both levels function in the context of the Westminster, cabinet government model in which governments are elected by the single member, plurality electoral system. Marchildon examines coalition governments in Ontario, Manitoba, British Columbia, and Saskatchewan to seek answers to these questions: Why are coalition governments established in the first place?; What factors assist in the maintenance of coalition governments?; Why are coalition governments terminated? The author’s conclusions provide valuable insight into a relatively rare phenomenon in Canadian politics, but one that will undoubtedly be encountered again especially as both the provinces and the federal government explore and then possibly implement alternate electoral models to remedy perceived shortcomings of the present system, thereby almost inevitably buying perpetual coalition governments. While the dynamics of such governments under proportional representation will be different from those examined in this chapter, they will be sufficiently similar so that those contemplating electoral changes will do well to take Marchildon’s conclusions into account. The primary subject matter of Joseph Garcea’s chapter is Canadian citizenship policy, a subject that has also been addressed in David Smith’s scholarship. The definition and regulation of Canadian citizenship is important because of their impact on the Canadian identity. Garcea discusses the attempts by Canadian governments since the 1980s to rectify the shortcomings of the citizenship regime based on the 1947 and 1977 Citizenship Acts. The author provides a thorough discussion of what he calls the third phase of the citizenship project, beginning with the reform efforts of the Mulroney government and extending through the Chrétien government’s three attempts at devising and passing new legislation. He shows that there were numerous factors that impeded the legislative process such that, as of this writing, a new act has not come into effect: lack of consensus in the immigration policy community on a new immigration and citizenship policy; the overly extensive review of the issues and options; opposition by key parlia-

Introduction 17

mentarians on both sides of the House of Commons to central features of the various bills; the shortage of political will by both Conservative and Liberal governments; inadequate planning of the legislative process so that the legislation was not passed even when it had won sufficient consensus in Parliament; and the pressure of other government business. In so doing, Garcea contributes to the study of subjects that have been prominent in the scholarship of David Smith by providing an insightful analysis of the Canadian policy process, including the functioning of Canada’s political executive as well as its two federal Houses of Parliament. Grace Skogstad revisits work that preoccupied David Smith in the early stages of his career. She examines whether his findings about the Liberal party’s attitude towards western agriculture still apply today. Drawing on the conclusions in his The Regional Decline of a National Party that the Liberal agricultural policies were insensitive due to weak western representation in the Liberal caucus and the practice of cabinet deferring to ministers on regional matters, she asks whether Liberal policies, after an interlude of Progressive Conservative rule, remain unresponsive. She compares the record of the Chrétien governments from 1993 to 2003 to that of the last Trudeau government as well as to that of the two Mulroney governments, focusing on railway freight rates, farm income support, and orderly grain marketing. Thus we learn about developments in three policy areas of key importance to prairie farmers over more than two decades, and get an assessment of the Conservative and Liberal governments’ reactions to them. Skogstad concludes that one should not expect the answer to the question of whether the Liberal government’s policy has become more sensitive to prairie farmers to be positive, though the response by farm organizations to Liberal policies has not been uniform, given disunity among them. However, the record of Ralph Goodale, the minister responsible for agriculture during the Chrétien years, demonstrates that the Liberal approach to agricultural policy has been quite different from what one might expect from Conservative or Reform governments – that is, more consultative and less ideological. It also demonstrates, as David Smith had earlier argued, that Liberal cabinet practices have not changed much: in the absence of consensus among farm groups, Ralph Goodale was left to define sectional interests and was able to steer policy debate in directions that accorded with his definition of these interests. In other words, satisfaction with Liberal agricultural policy in the West has not increased over the decades nor have Liberal governing

18 Hans J. Michelmann

procedures, though the minister of agriculture adopted a more consultative and consensus-building style. David Smith’s findings, then, have pretty much stood the test of time. Roger Gibbins’s chapter addresses most directly David Smith’s contributions to the political science scholarship on his home region, the Canadian West – contributions that continue to be essential for understanding politics and government in that part of the country. Gibbins argues that Smith has demonstrated, especially in his work on the Liberal party, how that most enduring and successful of Canadian parties first played the key role in building the prairie West and then gradually abandoned it, not through inadvertence but through a series of choices about its internal organization and dynamics as well as about national policies. The choice by the party to focus on the Central Canadian heartland led to its alienation from all but patches of the West, and because of its role as the natural governing party, contributed in major ways to a rising and then continuing alienation of the West from the rest of Canada. Gibbins demonstrates how enduring David Smith’s analysis has been by demonstrating how contemporary Liberal policies and politics continue to alienate the West. Smith’s unsurpassed understanding of Canada’s national political institutions inform his concern about the lack of integrating mechanisms in a federation marked by geographical, economic, and cultural cleavages in the absence of a truly integrating national party. They provide guidance to those who would seek means to address this perpetual challenge to national unity.

1 Constitutional Politics: In a New Era Canada Returns to Old Methods peter h. russell

Quietly, almost silently, Canada’s constitutional politics has entered a new era. The days when the national unity issue and attempts to resolve it dominated political life are behind us, at least for the time being. The last time we Canadians attempted a grand restructuring of our constitution was when a majority of us rejected the Charlottetown Accord in October 1992. After that, for another three years, a pending referendum on Quebec sovereignty kept the national unity issue at the top of our political agenda. Then, by the narrowest of margins, on 30 October 1995, the citizens of Quebec said no to the sovereignty option. Had a few thousand of them voted the other way we would surely have been plunged back into as deep a constitutional crisis as the country has ever known – with a Quebec premier claiming a mandate to unilaterally make Quebec an independent state, and a Canadian prime minister denying Quebec’s right to do that (Russell, 2004). As things turned out, the era of what I refer to as mega-constitutional politics came to an end with a whimper rather than a bang. The federal prime minister did a little bit of constitutional tinkering to honour his eleventh-hour promise in the referendum campaign. The Supreme Court laid down the constitutional rules governing secession, after which the federal parliament and Quebec’s National Assembly enacted legislation staking out somewhat conflicting versions of their respective rights and roles in a secession crisis. Fortunately, after all that, the crisis didn’t come. The sovereignist government in Quebec first lost its nerve, then, in April 2003, lost the provincial election. Now some would say – and I fear this might include all too many political scientists – that with a federalist government in power in Quebec and national unity no longer a pressing matter, constitutional

20 Peter H. Russell

politics are behind us. One often hears the view expressed that since the Charlottetown Accord débâcle, Canada has fallen into ‘a constitutional deep-freeze.’ The contributors to a symposium convened by the Royal Society of Canada a year after the Quebec referendum were almost all of the view that Canada was unlikely to survive without major constitutional change, but that constitutional reform was just about impossible. In the words of Alan Cairns, ‘constitutional reform is a god that failed’ (Cairns, 1997). At one level this view is surely correct. Constitutional reform of the mega-constitutional variety – that is, through popular agreement on a set of formal constitutional amendments on the big issues that divide us – is a god that has failed. But that doesn’t mean that constitutional politics and constitutional change are dead. Quite to the contrary, it means we are now in a new era of constitutional politics when a lot of change is taking place, not through the stormy, crisis-ridden processes of mega-constitutional politics, but through the quieter, incremental and much sunnier ways of organic constitutionalism – the very ways in which our constitutional system evolved through its first century. It is appropriate to write about Canada’s return to this older style of constitutional politics in a contribution to a festschrift honouring Professor David Smith. Though David Smith kept company with those of us who became wrapped up in the mega-constitutional game, he never made it the centre of his work. The genius of his contribution to our discipline and our country has been to teach us about the evolution and implications of the institutions and political system we have rather than engaging in efforts to radically transform them. Now that we are getting back to a more modest approach to constitutional change, his work should be more relevant than ever. This can be seen in his recently published book, The Canadian Senate in Bicameral Perspective (Smith, 2003). Here, instead of treating Senate reform as cure for national unity ills or a fulfillment of our democratic dreams, he invites us to think carefully about the purpose of a second legislative chamber in our federal parliament. From this perspective, we learn that there is much that could be done through the traditional methods of small ‘c’ constitutional change to enable the Senate to better fulfil its historic purpose. I will return to David’s thoughts on doable Senate reform later in this essay. Burke to Locke and Back Again to Burke In Constitutional Odyssey I juxtaposed two constitutional styles. One is the older English view that, instead of thinking of the constitution as a

Constitutional Politics 21

single document drawn up and agreed to at a particular point of time and containing all of a society’s rules and principles of government, a constitution is the collection of laws, institutions, and political practices that have survived the test of time and are found to serve the society’s interests tolerably well. Daniel Elazar referred to countries practising this type of constitutionalism as organic polities and observed that in such societies ‘constitution-making and constitutional change come in bits and pieces’ (Elazar, 1985: 244). In constitutional systems understood in this organic way, change is incremental and pragmatic, consent is implicit and informal. When one of the ‘bits and pieces’ is not working satisfactorily, there is an effort to fix it. Whether the repair job is satisfactory, only time can tell. The political philosopher par excellence of organic constitutionalism was Edmund Burke. Burke was sceptical about the capacity of individuals through abstract reasoning to discern fundamental political truths. ‘The individual is foolish, but the species is wise’ (Kirk, 1953). For Burke, the social contract that forms the foundation of a society is not between individuals here and now but between generations, each handing on to the next the product of its collective wisdom. The constitutionalism I contrasted with the Burkean is that based on the political philosophy of John Locke. This is the idea that the constitution is a covenant among a sovereign people on how they are to be governed. The constitution so conceived is indeed the Constitution, with a great big capital ‘C’ – a supreme law representing the enduring will of a single sovereign people containing a complete statement of its fundamental principles and institutions of governance. It is Lockean constitutionalism that underlies the foundational myth of the American Constitution, which is enacted by ‘We the people’ as an expression of their enduring will as to how they are to be governed. The reality of how the American constitution was drawn up and ratified and has evolved over time was considerably different from the Lockean ideal. Nonetheless, in the age of democracy, the ideal of the Constitution, embodying the will of a sovereign people and serving as its highest law, stands as a compelling model for societies making new beginnings after world war, the withdrawal of empire, the overthrow of tyrannies – or, in the Canadian case, responding to a crisis of national unity. In these circumstances, constitution makers are driven to work at fashioning a new Constitution that can win the consent of the people through democratic means.1 Canadian constitutionalism certainly did not begin on a Lockean

22 Peter H. Russell

note. At the founding of the Canadian federation and through its first century, Canadian constitutionalism was essentially organic and Burkean. The British North America Act was not regarded as containing a comprehensive statement of the country’s constitutional system. Many of the most important rules and principles of government – above all, the key practices of parliamentary government – were part of the country’s constitutional inheritance from Great Britain and took the form of informal constitutional conventions. Over the next century, Canada’s constitutional system changed and adapted, notably becoming far more thoroughly federal than many of the Founding Fathers intended. The changes occurred incrementally and through a variety of means, including political agreements and practices, legislation establishing new institutions (like the Supreme Court), judicial decisions, and the occasional amendment of the BNA Act. There was plenty of politics in all of this, they were relatively low key and never of crisis proportions. We began to move towards a different kind of constitutionalism when the country – or at least its leaders – became serious about ending the written Constitution’s formal legal tie to the imperial Parliament. Bringing the Constitution home to Canada raised the question of who in Canada should have custody of it – that is, which governments or people should have the power to amend the Constitution? Now if the formal capital ‘C’ Constitution is to be treated as Canada’s supreme law, this question comes down to agreeing on nothing less than who or what should be the supreme Canadian law-maker or sovereign. Should it be the Parliament of Canada? Or Parliament plus all or some of the provincial legislatures? Should Quebec, as the homeland of a founding people, be given a special role? Or should it be a simple majority of the Canadian people, or some kind of special majority? There were supporters for all of these answers, each reflecting a fundamentally different vision of what kind of political society Canada is or should become. As Canadians wrestled with this difficult question, some of the participants, beginning with a now secular but very nationalist Quebec, began to insist that it wasn’t enough simply to ‘bring the Constitution home’ but while we are at it we should redo the Constitution – in effect we should make a new beginning. Of course, the dualistic vision of Canada which Quebec nationalists wanted to write into a rewritten constitution was very different from other Canadians’ vision of the country. And so for a generation, from the late 1960s to the early 1990s, Canadians tied themselves in knots trying to reach agreement on their constitution.

Constitutional Politics 23

Increasingly the endeavour took on a Lockean hue: the Canadian people should be sovereign and the constitution should express their will, with the crisis-laden corollary that if they couldn’t agree, their federation might break up. The climax came with the Charlottetown Accord – a kitchen-sink-full of constitutional reforms designed to placate every possible source of constitutional discontent in the land but rejected for a host of conflicting reasons by a majority of the Canadian people in a majority of provinces. Though Charlottetown had a negative result, it was, as they used to say, quite a learning experience. Canadians learned that if they are a sovereign people they are capable of exercising their sovereignty only in a negative way. They can use their constitutional power to reject but not to approve changes in anything fundamental. What is more, Canadians learned that the very effort of trying to reach a popular accord on restructuring fundamental parts of the formal, capital ‘C’ part of their constitutional system would likely deepen their discord. The people of Quebec must surely have learned the same lesson from the 1995 referendum. They were no more able than Canadians to act positively as a sovereign people and reach a broad consensus on that jurisdiction’s constitutional future. And so the Lockean constitutional god was dead – both for Canada as a whole and for Quebec. Which brings us back to Burke. Constitutional Change à la Burke The new era of constitutional politics we moved into after the death of Charlottetown and the failure of the Quebec sovereignists’ project is, in effect, a return to constitutional normalcy. Settled constitutional democracies do not normally engage in projects aimed at fundamental restructuring of their constitutions. But that doesn’t mean they are totally stagnant constitutionally. Their constitutional systems – the rules, principles, and institutions by which they are governed – are continually evolving but the modifications and adjustments they undergo occur, to use Elazar’s words, in bits and pieces through the various components of a constitutional system. Amending the formal capital ‘C’ Constitution is certainly one of the components and the occasional constitutional amendment is one of the instruments of normal constitutional politics. But it is essential to understand that the capital ‘C’ Constitution – what is included in the Constitution of Canada as set out in section 52 of the Constitution Act – by no means exhausts all the rules, principles,

24 Peter H. Russell

and institutions of Canada’s constitutional system. There are three other important components and means of change. One is organic statutes that are not formal amendments or additions to the constitution but create major institutions of government, or affect the way constitutional rules are applied. The Supreme Court Act is a good example, as are provincial acts creating municipalities, and federal and provincial legislation setting out the rules of democratic elections. These unentrenched statutory parts of the constitutional system – of which there is no definitive listing – are much handier and more accessible instruments of constitutional change precisely because they are not entrenched. A second component is judicial decisions interpreting the formal constitution and the principles underlying the constitutional system as a whole. The famous American aphorism that ‘the constitution is what the judges say it is’ may be somewhat overdrawn for that country and ours, nevertheless, the importance of judicial decisions in shaping our constitution always has been and continues to be important. The final component is made up of political practices that have hardened into constitutional conventions and political agreements. This is the part of the constitution which tends not to be taught at law schools but, I hope, is still part of the political science curriculum. I am sure that students in David Smith’s classes learn something about this element of our constitutional system. Well before the big mega-constitutional game fizzled out, constitutional change was taking place through these various instruments. Some of these developments were fallout from the national unity wars. Surely the most inane of these was the Calgary Declaration issued in 1997 by the premiers of the English-speaking provinces and heads of the then two northern territories. The declaration reeks of the worst kind of Canadian effort at trying to finesse profound differences of constitutional philosophy with nice, meaningless, verbal confections. It aimed at satisfying the long-standing aspiration of Quebeckers for constitutional recognition of their province’s special status in the Canadian federation, without deviating from the sacred principle of provincial equality. ‘All provinces, while diverse in their characteristics, have equality of status,’ it purred, but at the same time, ‘the unique character of Quebec society, including its culture and its traditions of civil law’ is recognized as ‘fundamental to the well-being of Canada’ (Lagh and Fraser, 1997). In response to this gesture to improve national unity, the premier of Quebec, Lucien Bouchard, growled, ‘Quebec will accept nothing less than to be recognized as a people, as a nation capable of

Constitutional Politics 25

deciding its future’ (Seguin, 1997). Mercifully, this put an end to the futile game of trying to solve the so-called national unity problem with symbolic baubles. A more enduring piece of constitutional handiwork was the Constitutional Amendments Act, 1996 (Statutes of Canada, 1996: ch. 1). This was Prime Minister Chrétien’s effort to deliver on another of the promises he made at Verdun at the end of the Quebec Referendum campaign – to restore Quebec’s veto over constitutional amendments affecting its vital interests. Of course, the prime minister didn’t dare attempt to do this by a formal constitutional amendment, which would require unanimous provincial consent. So he pushed through an act of Parliament – an organic statute – committing the federal government to proceed with constitutional amendments subject to the seven province/50 per cent of the population rule only if they have support in five regions of Canada. For this purpose British Columbia, Ontario, and Quebec were all treated as regions. Two provinces with at least 50 per cent of the population would exercise the prairie provinces’ veto and two Atlantic provinces with half of that region’s population would have Atlantic Canada’s veto. The legislation was worded so that the regional approvals can be given by referendum. Perhaps the most enduring Lockean consequence of the mega-constitutional era is the expectation that important constitutional amendments are legitimate only when approved directly by the people (Boyer, 1992). This means that the consent of majorities in seven provinces representing 92 per cent of the Canadian population is now required for amendments that concern the structure of the federation or federal institutions. While it is true that legally Mr Chrétien’s legislative gloss on the constitutional amending rules can be changed by an ordinary act of Parliament, it is difficult to envisage a federal government with enough chutzpah to risk dismantling this system of regional vetoes. And while some might decry the constitutional strait-jacket in which this seems to put the country, does anyone really think the country would be better off if the federation could be restructured against the wishes of any one of the five regions? Some further constitutional fallout from the national unity wars was the attempt to settle the debate that ran all through the Quebec referendum campaign about the legalities of secession. The lead player here was the Supreme Court of Canada which at the behest of the federal government was asked to assess the claim of Quebec’s Parti Québécois government that approval in a provincial referendum by a majority of 50 per cent plus one of a convoluted sovereignty proposal gave the

26 Peter H. Russell

government of Quebec the right to unilaterally take the province out of the Canadian federation and make it an independent state. The court, as it had done in the Patriation Reference, fashioned a decision which gave half a loaf to each side (Reference re the Secession of Quebec). It denied that either Canadian or international law gave Quebec, or any province, a power to secede unilaterally. But, on the other hand, if a clear majority in a province said yes to a clear question on secession, then the rest of Canada had a constitutional obligation to enter into good faith negotiations with the government of that province. As to what constitutes a clear majority and a clear question, the justices had the good sense to leave those questions to the judgment of the ‘political actors.’ One of the actors, the federal government, gave its answer in the Clarity Act asserting that the House of Commons would decide whether the results of a secession referendum were clear enough to trigger the constitutional duty to negotiate (Statutes of Canada, 2000: ch. 26). The Quebec government responded to this with its Self-Determination Act, asserting that ‘the Quebec people has the inalienable right to freely decide the political regime and legal status of Quebec, and that a simple majority of 50 per cent plus one counts as a clear expression of the Quebec people’s will (Statutes of Quebec, 2000: ch. 46). The constitutional gladiators were now armed to the teeth, legislatively speaking, for another round of heavy-duty constitutional warfare. As we walk through our constitutional museum and gaze at the show cases, we should thank our lucky stars that, so far, there has been no cause to test the secession armour on display. In this new era of constitutional politics political leaders sense that, lest the truce in the national unity wars be broken, it is imperative to stay away from formal constitutional amendments that require a country-wide consensus. But constitutional amendments affecting matters fundamental to particular provinces can be and have been undertaken. Under section 43 of the amending formula, amendments to any provision in the Constitution of Canada that applies to one or more provinces but not all of them require only the support of the federal Parliament and the legislature of the province or provinces concerned. In the 1990s four such amendments were adopted (Hogg, 1999: 1.4, note 28): – A 1993 amendment of the New Brunswick Act gave ‘equality of status and equal rights and privileges’ to New Brunswick’s English and French communities – an amended called for in the aborted Charlottetown Accord.

Constitutional Politics 27

– A 1993 amendment of Prince Edward Island’s Terms of Union with Canada permitted a bridge to replace a ferry service as PEI’s link to the mainland. – A 1997 amendment to section 93 of the Constitution Act 1867 removed the guarantee of denominational school rights in Quebec, making it possible for Quebec schools to be organized around language communities rather than religious communities. – A 1998 amendment of Newfoundland’s Terms of Union with Canada (replacing an amendment made a year earlier) removed the constitutional guarantee of a costly and divisive educational system based on Christian denominations. While none of these section 43 amendments involved changes in the structure of the federation as a whole, each was important to the people of the provinces involved, and each had a Burkean flavour in adjusting constitutional provisions to changes in social realities and practical circumstances. It is notable too that a sovereignist Quebec government was happy to use the constitutional amending machinery gained through patriation when it was in its interest to do so. The other area in which there has been development in that part of our constitutional system that is more legally binding and entrenched than ordinary legislation is relations with Aboriginal peoples. After Charlottetown the Aboriginal leaders and communities showed no interest in returning to the mega-constitutional table. First Nations, Métis, and Inuit peoples prefer to advance their constitutional interests in securing recognition of the right to govern their own societies and gain control over economic resources in historic homelands through the negotiation of modern treaties with other sovereign authorities – namely, federal and provincial governments. It was precisely such a process that the Charlottetown Accord would have constitutionally mandated. Despite the defeat of the accord, federal and provincial governments have agreed in principle to enter into negotiations of binding, treatylike agreements with indigenous peoples on self-government arrangements. Judicial decisions in the 1990s recognizing the constitutional basis of native title and treaty rights, and the practical need of Aboriginal communities for a secure economic base, have made it imperative for these negotiations to deal with land and resource issues. Progress has been slow, partly because of the reluctance of federal, provincial, and territorial governments to give up control over Aboriginal societies, their lands and resources, and the lack of broad political support for

28 Peter H. Russell

the process. Lack of progress can also be ascribed to the difficulties Aboriginal people have experienced, after years of colonial subjugation, in forming coherent and viable political communities with authority to negotiate and the capacity to implement modern treaty-like agreements. The most spectacular breakthroughs have been the agreement with the Inuit of the Eastern Arctic, creating Nunavut, a new self-governing northern territory, and the Nisga’a Final Agreement with British Columbia and Canada. Though the governmental institutions of Nunavut were created by an act of Parliament, the commitment to establish the territory is entrenched in the 1993 agreement which, as a modern treaty, has constitutional status under section 35 of the Constitution Act, 1982 (Hicks and White, 2000). The Nisga’a Agreement was the first to recognize the supreme law-making authority of an Aboriginal people over matters vital to their collective life and identity – namely their constitution, citizenship, language, culture, and management of their own lands (Foster, 1998/99). It was this aspect of the agreement that provoked the strongest opposition in the non-Aboriginal community, but which survived a court challenge through a judicial ruling that the forming of Canada in 1867 did not extinguish the right of Aboriginal peoples to govern their own societies (Campbell et al. v. British Columbia). The NDP government in British Columbia, in order to get around provincial legislation requiring that a referendum be held before the legislature deals with a proposed constitutional amendment, denied that the Nisga’a Agreement was a constitutional amendment. While the agreement does not alter or remove any existing provisions of the Constitution of Canada, it certainty adds to the Constitution. The argument against ratifying agreements with Aboriginal peoples by province-wide referendums that is much more in keeping with the underlying principles of Canada’s constitutional system is that the fate of a small Aboriginal nation should not depend on the vote of a much larger provincial electorate. Constitutional restructuring of Aboriginal peoples’ relationship with Canada through negotiated agreements, though often frustrating and painfully slow, nonetheless seems likely in the long run to be more fruitful than working at some grand pan-Canadian solution. And it is a thoroughly Burkean process. It draws on a shared experience of treatymaking and principles of governance going back to the Proclamation of 1763 and the Aboriginal peoples’ inherited stock of collective wisdom about good government (Royal Commission on Aboriginal Peoples, 1996). It is also Burkean in that its legitimacy will depend on satisfying

Constitutional Politics 29

practical ends: the better provision of the goods, services, and opportunities people need to live secure, healthy, and fulfilling lives. The failure of Robert Nault, the last of the Chrétien government Aboriginal Affairs ministers, in reverting to the colonial Indian Act as the vehicle for reordering Aboriginal affairs, suggests that the more consensual course of proceeding piecemeal by negotiated agreements, however slow and difficult, is more in keeping with our shared sense of justice. Doing Charlottetown in Bits and Pieces Although the 1992 referendum rejected the Charlottetown Accord, it is interesting to observe how much of its proposed restructuring of the federal system has taken place through the more informal means of constitutional adjustment (Lazar, 1997). None of this will satisfy federalists of a more ideological or legalistic persuasion. But as we watch the ebb and flow of policy and politics in the federation, those of us who are more pragmatic and less principled about our federal system may well derive some comfort from the fact that the changes are not written in the concrete of formal constitutional amendment. The main thrust of the restructuring proposals in the Charlottetown Accord was to transfer power to provinces. Since Charlottetown there has been a fair amount of devolution of policy areas to the provinces (Dion, 1999). Ottawa has largely withdrawn from the sectors of mining and forestry, recreation, and tourism as called for in the Charlottetown Accord. Such devolution was motivated as much by the federal government’s interest in getting its fiscal deficit under control as by considerations of federalism. Another major jurisdictional change promised in the Charlottetown Accord was to give the provinces exclusive jurisdiction over labour-market training, the dimension of education directly linked to industrial development and employment (Bakvis, 1996). This was a constitutional reform sought by Quebec since the 1971 Victoria Charter, and one that Chrétien promised to deal with in the Quebec referendum campaign. After the referendum Chrétien delivered on this promise by agreeing to negotiate with the provinces and territories bilateral political agreements that enable them to take full responsibility for training financed by the Employment Insurance Fund or to co-manage programs with the federal government. Agreements have been made with all jurisdictions except Ontario. This informal, checkerboard mode of devolution may contribute to federal-provincial harmony. But some analysts fear that it may also impede the develop-

30 Peter H. Russell

ment of training and employment programs for industries that cross provincial boundaries (Di Giacomo, 1993). Two other sections of the Charlottetown Accord – its left hook and right jab – were proposals for Canada’s social and economic union. These were little bits of constitutional fluff inserted in the accord to strike a balance between Canadian nationalist sentiments of a social democratic hue and those of a more neo-conservative nature. Both have found at least some faint expression in the post-Charlottetown era. The economic union came first with an intergovernmental Agreement on Internal Trade (AIT) reached in July 1994 just a few months before the Parti Québécois returned to power in Quebec (Doern and MacDonald, 1999). For economic liberals, the AIT has been a big disappointment. It permits provincial governments to restrict access to provincial markets if they are pursuing ‘legitimate policy objectives’ and lacks enforcement mechanisms. Nonetheless, it has contributed to Canada’s economic integration in a number of areas, including government procurement, labour mobility, and harmonization of professional and occupational standards (Brown, 2002). It is doubtful that the Charlottetown proposal would have done more. In any case, the discipline of the new global economic order and membership in the World Trade Organization will likely do more to reduce provincial barriers to trade than intergovernmental agreements or reform of Canada’s Constitution. Five years after AIT, as the country began to emerge from a period of right-wing political dominance, and spending on new social programs, if not back in vogue, was at least not completely off the agenda, a Social Union Framework Agreement (SUFA) emerged (Lazar, 2003). It was signed by Ottawa, the northern territories, and all of the provinces – except (hold your breath!) Quebec. SUFA is a classic Canadian compromise. The federal government is not to withdraw from social policy, but its involvement is to be conducted in a more cooperative and consensual manner through a Council of Ministers. The federal spending power can be used to finance new federal programs through fiscal transfers, providing a majority of provinces agree and opting-out provinces receive funding for their own programs. Individual citizens can receive funding directly from Ottawa in programs such as the Millennium Scholarship Foundation but the provinces must be consulted in advance and given an opportunity to design alternatives. In the five years since its signing, SUFA has contributed a little to the implementation of programs such as the national child benefit and some social housing initiatives but has done nothing that lives up to the inflated

Constitutional Politics 31

rhetoric of ‘social union.’ But then did anyone seriously expect more from this bit of Charlottetown? At least it has given Quebec the satisfaction of de facto special status without shaking the federal union. With the arrival of better economic times and budget surpluses the federal government has been recovering its nerve and its constituency for taking initiatives in areas of policy that, had the Charlottetown Accord become law, would be recognized as under exclusive provincial jurisdiction. Social housing is one example, and urban affairs is another. The mayors of Canada’s leading cities and the electorates to which they are accountable have made it clear that they want the federal government to re-enter the field of urban affairs at least on the fiscal side, and the new Liberal prime minister, Paul Martin, responded to this pressure by making assisting the cities one of his policy priorities. In the field of education, the Millennium Scholarship Foundation is not the only federal initiative. Canada Research Chairs, contributions to university infrastructure through the Canadian Foundation for Innovation, and the newly created Canadian Council on Learning are evidence of the fact that, despite what the Constitution says about the provinces’ exclusive power ‘to make Laws in relation to education,’ no federation in this knowledge age can afford not to take a lead role in promoting national policies that promote higher education, research, and the learning skills of its citizenry. Similarly in the field of health care, the Romanow Royal Commission and Senator Kirby’s report ensure an expansion rather than a reduction of federal leadership in this field. Even though two provinces, Alberta and Quebec, have not taken their seats on the recently established Health Council of Canada (Mallan, 2003), this is not likely to stop the council, with its stakeholder members, from assuming a lead role in monitoring and improving the performance of health care systems across the country. This sketch of recent developments in Canada’s federal system shows that giving up on formal constitutional restructuring has not condemned the country to ‘status quo federalism.’ The flexibility and change possible through less formal devices has made it easier for a federalist party to assume power in Quebec without promising to work for formal constitutional amendments. Jean Charest’s Liberal government did not wait long to push its own priority for federal renewal – the Council of the Federation. The council is reminiscent of the initiative of another Quebec premier, Honoré Mercier (like Charest, a Canadian federalist and Quebec nationalist), who organized the Interprovincial Conference of 1887. The council’s members are the leaders of the provincial and

32 Peter H. Russell

territorial governments (Noel, 2003). The federal government, though not a member, will meet at least annually with the council. The new Council of the Federation may turn out to be nothing more than an institutionalization of the annual ‘piling on’ attacks on the federal treasury. On the other hand, the council may serve as a vehicle through which its member governments can learn from one another and coordinate their policies. One constitutional development the council does consolidate is the convention of including the three northern territories as regular participants in intergovernmental affairs – something which could not likely have been done through formal constitutional amendment. Reforming Parliamentary Government One of the benefits of the truce in the national unity wars and a return to constitutional normalcy is that the country – its leaders and its citizens – are turning their reforming energies to the quality of Canada’s democratic institutions. Over the past decade there has been growing concern about the transformation of prime ministers and premiers into presidential rather than parliamentary leaders. Leading political scientists and newspaper pundits have critically analysed the centralization of power in the office of the first minister and a small group of political advisers, blurring the boundary between politics and administration, reducing the role of accountable ministers, and treating Parliament as a rubber stamp for government policy (Savoie, 1999, 2003; Simpson, 2001). A leading symptom of the malaise is a decline in voter turnout. In the 2000 federal election, only 54 per cent of the voting age population voted, a decline of 21 per cent since 1988 (Johnston, 2001). Politicians have been getting the message. The Ontario premier, Dalton McGinty, and Prime Minister Martin both campaigned on promises to tackle the ‘democratic deficit.’ The democratic deficit can be attacked on two fronts. One is the internal operation of parliamentary institutions. The other is external restructuring of the process by which parliamentary bodies are elected. Fortunately, in an era when restructuring of the central institutions of the federation by formal constitutional amendment is politically impossible, much can be accomplished on both fronts through more accessible and informal instruments of constitutional change. Internal changes in parliamentary practice that reduce executive dominance, expand the role of backbenchers and legislative committees, and generally restore

Constitutional Politics 33

some significance to legislative debate depend, in the first instance, on a change of attitude on the part of government leaders and members of government caucuses. The Liberal backbenchers who, in the teeth of Prime Minister Chrétien’s opposition, supported secret ballot votes for the chairs of House of Commons committees, demonstrated what a little dose of political courage can bring about. Let us hope that such acts of bravery and independence are not forthcoming only when a prime minister is at the end of his mandate. Let us hope, even more fervently, that first ministers and their cabinet colleagues have the courage to appear not to be in total control of the legislative process, and journalists have the courage to refrain from jumping on any signs of dissent in caucus ranks as fatal indications of government weakness. We are more likely to see a change in attitude in the operation of Parliament and legislatures if the power structure in these bodies is changed. Here is where structural change in the way seats are allotted in our elected legislature is crucial. Control of legislatures by leaders of the government party has increased in a period in which it has become very rare for the government party to be the preferred choice of a majority of voters. An electoral system more accurately reflecting the distribution of political preferences would likely produce parliaments in which no party has a majority and where minority or coalition governments are the norm. In contemplating such a change in the way elected legislatures are formed, Canadians have to decide whether they are willing to give up the stability of governments which have majorities in the legislature but are opposed by a majority of the electorate. Most of the parliamentary world has made that choice and opted for electoral systems that necessitate the formation of governments that are more inclusive and representative of the political views of the electorate. Canada, at least at the provincial level, seems poised to make the same choice. Quebec may well lead the way. Before the April 2003 election, 90 per cent of the one thousand citizens participating in a two-day Estates General favoured the introduction of some form of proportional representation in Quebec (Fair Vote Canada). In September 2003 Quebec’s minister for democratic reform announced that legislation to establish a mixed member proportional (MMP) electoral system would be introduced in 2004. In 2005 a British Columbia referendum just failed to yield the 60 per cent approval needed for adoption of the Single Transferable Vote system recommended by its Citizens Assembly, while Ontario will follow British Columbia’s example in setting up a citizen assembly to consider electoral reform. In December 2003 Prince Edward Island’s

34 Peter H. Russell

electoral reform commissioner recommended an MMP system for that province, and the New Brunswick government appointed a nine-member commission to make recommendations on proportional representation. At the federal level, in September 2003, the House of Commons held its first vote on electoral reform since 1923, and although a motion to hold a national referendum on proportional representation was defeated, it was supported by the NDP, the Canadian Alliance, and the Bloc Québécois. Early in 2004, the Law Commission of Canada, on the basis of a national consultation, submitted a report to the House of Commons recommending a mixed member system of proportional representation (Law Commission of Canada, 2003; Ibbitson, 2004). Under pressure to save his government in the minority parliament resulting from the June 2005 election, Prime Minister Paul Martin agreed to an amendment to the Speech from the Throne calling for the establishment of a citizens assembly to review electoral reform. It is the MMP system that seems most likely to be the choice of electoral reformers in Canada. It has the Burkean quality of retaining members who represent constituencies – albeit constituencies that are likely to be considerably enlarged – and are elected by the first-pastthe-post system, and then adds members elected on the basis of party lists to bring party representation in the legislature into line with party shares of the popular vote. This is the kind of system which New Zealand adopted in 1996, and a version of it was recommended for the United Kingdom by Lord Jenkins’s royal commission in 1998. To meet objections about the list part of the system giving too much power to the party leadership, the Jenkins report puts forward the idea of regionalizing the party lists and giving voters the option of making their own rank ordering of the persons listed (Dunleavy et al., 1998). These ideas are likely to appeal to Canadians. At both the provincial and federal levels, the electoral system can be changed by ordinary legislation. Legislation which can effect such a profound change in the way in which governments are structured and legislatures function must surely be counted as a small ‘c’ constitutional change. No doubt it will be some time before the leadership of the governing party in Ottawa, even though committed to a program of democratic renewal, will contemplate such a change. But if the change is made in many of the provinces and is shown to produce more inclusive and accountable governments, the pressure to change might become irresistible.

Constitutional Politics 35

But What about Senate Reform? The reform of Canada’s parliamentary system which has been most sought after by Canadians is reform – or abolition – of the Senate. Yet it would appear that this is the very reform that can be achieved only by the kind of formal constitutional amendment that requires a broad national consensus and is therefore out of bounds during this period of relative constitutional peace. Restructuring the Senate along the ‘triple E’ lines envisaged in the aborted Charlottetown Accord – a directly elected Senate exercising significant legislative powers, in which each province has an equal number of representatives – would require such an amendment. The effort to obtain a national agreement on such a reform would likely plunge Canada back into the muck of mega-constitutional politics. But far from ruling out Senate reform, the unavailability of radical transformation of the Senate gives us the opportunity to reform the Senate in a way that is more in keeping with its role as a second chamber. David Smith’s book, The Canadian Senate in Bicameral Perspective, is a most useful and instructive guide to such an approach. Smith challenges us to give careful consideration to the role of a second legislative chamber in the federal Parliament. He makes a convincing case that the Senate’s primary function is not to challenge or be a rival to the House of Commons, or serve as a forum for provincial governments, but to complement the Commons. He questions whether ‘an elected Senate would perform its deliberative role more fully and more faithfully than the Senate as presently constituted’ (Smith, 2003: 161–2). The main improvements that could be made in the way the Senate performs its complementary role, including more in-depth inquiries, improving its committee system, adopting a timetable of fixed sittings, and the opportunity to consider government bills at an early stage, can all be accomplished by internal changes in the way Parliament conducts its business. Smith suggests that it may well be within Parliament’s power under section 44 of the amending procedure to pass legislation setting out criteria and establishing an advisory, non-partisan (or multi-partisan) committee to guide the prime minister in advising the governor general on ‘the qualified Persons’ who are to be summoned to the Senate. Such a reform could modify the unfettered discretion of the prime minister in Senate appointments, which is all too often used to reward past service to the governing party. One model for such a

36 Peter H. Russell

reform is the Appointments Commission recently established in the United Kingdom as a selection committee for the House of Lords (Walters, 2003: 231). For many years now the federal government has been assisted by advisory committees in selecting judges for appointment by the governor general. It would also be possible to mix senators selected through a reformed appointments system with indirectly elected senators, if Prime Minister Martin is bold enough to emulate Prime Minister Mulroney and advise the governor general to summon to the Senate persons who have been selected, as in Alberta, by a provincial electorate. Thinking of Senate reform in the present constitutional context should remind us of that important phrase in the preamble to Canada’s founding Constitution stating that Canada is to have ‘a Constitution similar in Principle to that of the United Kingdom.’ In an era when the formal process of constitutional amendment is so politically inaccessible, we Canadians must recover our capacity and respect for the more informal process of constitutional evolution and adaptation that has been the hallmark of the British constitutional experience. At the beginning of the twenty-first century, the British are engaged in a process of constitutional change that is at least as fundamental and wide-ranging as that which they undertook in the early decades of the twentieth century when they were completing the democratization of their parliamentary system and transforming the empire into the commonwealth (Bogdanor, 2003). It is open to us Canadians in this period of constitutional normalcy to be at least as innovative as the British. If we have the will to do this and can free ourselves from the mindset of our recent constitutional wars, we will find much help and wisdom in the work of David Smith.

NOTE 1 I have developed this theme more fully in ‘Can the Canadians Be a Sovereign People?’ in Constitutional Politics in Canada and the United States, ed. Stephen Newman (Albany: State University of New York, 2004).

REFERENCES Bavkis, Herman. 1996. ‘Federalism, New Public Management, and LabourMarket Development.’ In Canada: The State of the Federation 1996, ed. Patrick

Constitutional Politics 37 Fafard and Douglas Brown. Kingston: Queen’s University, Institute for Intergovernmental Relations. Bogdanor, Vernon. 2003. ‘Introduction.’ In The British Constitution in the Twentieth Century, ed. Vernon Bogdanor. Oxford: Oxford University Press. Boyer, Patrick. 1992. Direct Democracy in Canada: The History and Uses of Referendum. Toronto: Dundurn. Brown, Douglas. 2002. Market Rules: Economic Union Reform and Intergovernmental Relations in Australia and Canada. Montreal and Kingston: McGillQueen’s University Press. Cairns, Alan. 1997. ‘Constitutional Reform: The God That Failed.’ In Can Canada Survive? Under What Terms and Conditions?, ed. David Hayne. Toronto: Royal Society of Canada and University of Toronto Press. Campbell et al. v. British Columbia (1997) 153 Dlr (4th) 193. Di Giacomo, Gordon. 2003. ‘Who should train the Canadian labour force?’ Federations: Whats New in Federations Worldwide 3, 4. Dion, Stephane. 1999. ‘Federalism: A System in Evolution.’ In Straight Talk On Canadian Unity. Montreal and Kingston: McGill-Queen’s University Press. Doern, Bruce and Mark MacDonald. 1999. ‘Free-Trade Federalism: Negotiating the Canadian Agreement on Internal Trade.’ Toronto: University of Toronto Press. Dunleavy, Patrick, Helen Margetts and Stuart Weir. 1998. Politico’s Guide to Electoral Reform. London: Politico’s Publishing & Artillery Row. Elazar, Daniel. 1985. ‘Constitution-Making: The Pre-Eminently Act.’ In Redesigning the State: The Politics of Industrial Change in Indstrial Countries, ed. Keith Banting and Richard Simeon. Toronto: University of Toronto Press. Fair Vote Canada. 2004. 2003–2004–2005 Electoral Reform Calendar: http://www .fairvotecanada.org. Foster, Hamar. 1998/99. ‘A Legal and Historical Perspective on the Nisga’a Treaty.’ BC Studies 120: 11–36. Hicks, Jack and Graham White. 2000. ‘Nunavut: Self-Determination Through a Land Claim and Public Government.’ In Nunavut: Inuit Regain Control of Their Lands and Their Lives, ed. Jens Dahl, Jack Hicks, and Peter Jull. Copenhagen: International Work Group for Indigenous Affairs. Hogg, Peter. 1999. Constitutional Law of Canada, 4th ed. Toronto: Carswell. Ibbitson, John. 2004. ‘Panel Recommend Proportional Voting.’ Globe and Mail, 2 February. A1, A4. Johnston, Richard. 2001. ‘A Conservative Case for Electoral Reform.’ Policy Options 22, 6: 7–14. Kirk, Russell. 1953. The Conservative Mind: From Burke to Santayana. Chicago: Henry Regnery.

38 Peter H. Russell Lagh, Brian and Graham Fraser. 1997. ‘Premiers Develop Unity Plan.’ Globe and Mail, 15 September. Toronto: A1. Law Commission of Canada. 2002. Renewing Democracy: Debating Electoral Reform in Canada. Ottawa: Law Commission of Canada. Lazar, Harvey. 1997. ‘Non-Constitutional Renewal: Toward a New Equilibrium in the Federation.’ In Canada: The State of the Federation 1997: NonConstitutional Renewal, ed. Harvey Lazar. Kingston: Queen’s University, Institute of Intergovernmental Affairs. – 2003. ‘Managing Interdependencies in the Canadian Federation: Lessons from the Social Union Agreement.’ In Constructive and Co-operative Federalism: A Series of Commentaries on the Council of the Federation, ed. Douglas Brown. Kingston: Queen’s University, Institute of Intergovernmental Relations. Madden, Caroline. 2003. ‘Federal Health Council Launched.’ The Globe and Mail, 10 December. Toronto: A8. Noel, Alain. 2003. ‘The End of a Model?’ In Constructive and Co-operative Federalism: A Series of Commentaries on the Council of the Federation, ed. Douglas Brown. Kingston: Queen’s University, Institute of Intergovernmental Relations. Reference re the Secession of Quebec (1998) 2 SCR 217. Royal Commission on Aboriginal Peoples. 1996. Report 2, Part One, chapter 2. Russell, Peter. 2004. Constitutional Odyssey: Can Canadians Become a Sovereign People? 3rd ed. Toronto: University of Toronto Press. Savoie, Donald. 1999. Governing from the Centre: The Concentration of Power in Canadian Politics. Toronto: University of Toronto Press. – 2003. Breaking the Bargain: Public Servants, Ministers, and Parliament. Toronto: University of Toronto Press. Seguin, Rheal. 1997. ‘Bouchard Reviles Unity Proposal.’ The Globe and Mail, 17 September. Toronto: A1. Simpson, Jeffrey. 2001. The Friendly Dictatorship. Toronto: McClelland and Stewart. Smith, David. 2003. The Canadian Senate in Bicameral Perspective. Toronto: University of Toronto Press. Walters, Rhodri. 2003. ‘The House of Lords. In The British Constitution in the Twentieth Century, ed. Vernon Bogdanor. Oxford: Oxford University Press.

2 The North American Free Trade Agreement and Canadian Federalism thomas j. courchene

It is a pleasure and a privilege to contribute to this festschrift for David Smith, one of the most prolific and respected scholars in Canadian politics. While our respective research interests have frequently focused on Canada’s governing institutions, our specific contributions have remained intriguingly parallel, with David addressing the structure of and processes related to Canada’s parliamentary institutions and with my work focusing more on policies related to the Department of Finance, the Bank of Canada, and federal-provincial relations. Where our paths have crossed is where many of Canada’s social scientists have come together, namely on the national unity file. David, along with his colleagues John Courtney and University of Saskatchewan president Peter McKinnon, hosted and edited After Meech Lake: Lessons for the Future. It has been noted that if my contribution to this volume had any value, this was largely because of its title: at Canada’s constitutional crossroads, the traffic lights are flashing neither red nor green, rather they are Forever Amber. This aside, however, there is an intangible but nonetheless enduring bond that links all of us who have been associated with the Saskatchewan’s Department of Economics and Political Science. David has remained a stalwart and sterling torch-bearer of this political economy tradition (even if the departments have long since gone their separate ways). Along these lines, David was presumably party to the decision that led to my being chosen to deliver the 1999 Mabel Timlin Lecture, which eventually became A State of Minds: Toward a Human Capital Future for Canadians. Contrary to the old adage, one can go home again, because David and his colleagues have kept the home fires burning. All of this suggests that an appropriate topic for this festschrift would

40 Thomas J. Courchene

be one that marries the economic and political. Accordingly, and as may well befit the seventeenth anniversary of the Canada–US Free Trade Agreement (FTA) (1 January 1989) and the twelfth anniversary of North American Free Trade Agreement (NAFTA) (1 January 1994), the ensuing analysis focuses on aspects of the economic integration of North America with an eye towards isolating selected implications for the structure and processes of Canadian federalism. In this context, NAFTA will obviously refer to the integration of North American economic space. However, it will also be interpreted to encompass aspects of the new economic order, such as the rise in importance of knowledge and human capital as key components of the information revolution. By way of an anticipatory example, this broadened conception of NAFTA will facilitate the later discussion of global city regions (GCRs), since reference can be made to both the GCRs’ role as export platforms and as dense nodes of knowledge and human capital. In more detail, the essay proceeds as follows. The following section documents the dramatic rise in north-south trade and, in particular, focuses on the shift in individual provinces’ trade patterns from the traditional east-west axis to the post-FTA/NAFTA north-south axis. The implication that is drawn from these trade data is that Canada is progressively less a single national economy: rather, it is increasingly a series of north-south, cross-border economies. The third section continues with the NAFTA focus by addressing various shortfalls associated with the NAFTA framework, and the fourth examines the range of reform proposals that are being advanced to address these challenges. As a relevant aside, there is also a federalism aspect to this reform agenda in the sense that one of the possible ways to deepen NAFTA is to do so ‘politically’ or ‘federally’ – for example, by bringing the Canadian provinces and states (US and Mexican) more formally under the NAFTA umbrella. This is discussed in the fifth section. With this as backdrop, the remainder of the paper deals with a variety of implications for the structures and processes of Canadian federalism. Section six addresses what is at the same time both a national and a federal challenge: how do we reconcile our east-west societal union with NAFTA’s north-south trading axis? The answer is, inter alia, the AIT, SUFA, and the Council of the Federation, all of which are creative structural and process responses to this most general of the challenges arising from an integrating NAFTA economic space. The following section deals with the rise of GCRs as the new dynamic motors of the information economy. The reality is that Canadians’ eco-

NAFTA and Canadian Federalism 41 TABLE 1 Aggregate Trade Flows International and Interprovincial Exports as Percentage of Canadian GDP

X/GDP US share US X/GDP Interprovincial exports

1989 %

2001 %

25 73 18.6 22.5

43 87 37.6 19.7

nomic futures will depend on how well our GCRs perform relative to their US counterparts. The related challenge is that the GCRs and cities generally will attempt to use their new-found influence to rectify their lack of constitutional status within the Canadian federation. What follows from this is a discussion of the potential for shifting the current federal-provincial intergovernmental relationship toward a federalprovincial-municipal relationship. The final substantive chapter addresses aspects of political philosophy in the context of globalization and integration. Traditionally, concepts such as sovereignty, citizenship, and democracy have been defined in reference to the Westphalian nation state. How do we redefine these concepts in an era where the nation state is in full evolutionary flight? Indeed, the analysis will advance the proposition that, in principle at least, NAFTA can be sovereignty-enhancing. North-South Integration Aggregate Data In terms of enhancing North American trade, FTA/NAFTA has been an astounding success. Over the 1993–2000 period alone, Canada-US trade doubled and Canada-Mexico trade tripled (Hufbauer and Vega-Cànavas, 2003: table 1). More detailed Canada-US trade flows appear in table 1 for the period 1989–2001 (that is, from the inception of the FTA). Canada’s overall exports as a percent of GDP rose from 25 per cent to 43 per cent. The US share of these exports rose from an already-high 73 per cent in 1989 to 87 per cent in 2001, a share that is higher than any EU country’s exports to the rest of the EU (as a percent of its total exports). The third row of table 1 reveals that, as a percentage of GDP, our exports to the US

42 Thomas J. Courchene FIGURE 1 Canada’s Real Exchange Rate Vis-à-Vis U.S. Dollar and Current Account Balance with the US, 1989–2001 Real exchange rate, 1990 = 100 7

110

6

105 100

5 Current account (left scale)

4

95 90

3 2

Real exchange rate (right scale)

85

1

80

䉬

Current account

䊉

20 01

65 19 99 20 00

–2 19 97 19 98

70 19 93 19 94 19 95 19 96

75

19 89 19 90 19 91 19 92

0 –1

Real exchange rate

doubled over 1989–2001, from 18.6 per cent to 37.6 per cent. In sharp contrast, Canada’s interprovincial trade flows fell from 22.5 per cent of GDP to 19.7 per cent. By way of backdrop to these aggregate trade flows, figure 1 charts the behaviour of the Canada-US exchange rate and Canada’s current account deficit with the United States over the same 1989–2001 time frame. The exchange rate (expressed in index form with 1990 equal to 100) falls to 70 by 2001, or by 30 per cent. Not surprisingly perhaps, the depreciation of the exchange rate led to a dramatic shift in the current account balance from a deficit of 1 per cent of GDP in 1989 to a surplus of over 6 per cent in 2001. More recent data would capture post-2001 appreciation of the Canadian dollar and the consequent shrinking of the current account surplus, but the general picture would remain as in figure 1, namely that exchange rate depreciations lead to increases in trade surpluses. Returning to the theme of this section, the shift from east-west trade dominating north-south or US trade in 1989 (22.5 per cent vs. 18.6 per cent, from the last two entries in column 1 of table 1) to the clear dominance of US over interprovincial exports in 2001 (37.6 per cent versus 19.7 per cent) is arguably among the principal consequences for

NAFTA and Canadian Federalism 43

the Canadian economy and society emanating from the integration of NAFTA economic space. And as such, it merits further elaboration and, in particular, elaboration in terms of how this is influencing the individual Canadian provinces. Provincial Trade Patterns Table 2 provides the provincial breakdown of the aggregate data in Table 1, again for 1989–2001. Manitoba is the only province in 2001 that does not export more to the United States than it does to the rest of the provinces. (Note, however, that Manitoba’s exports to the United States as a percentage of its GDP more than doubled, from 11.6 per cent in 1989 to 24.6 per cent in 2001.) By way of contrast, in 1989 only two provinces (Ontario and Newfoundland) had US exports in excess of interprovincial exports. Indeed, exports to the United States as a percentage of provincial GDP actually doubled for eight of the provinces. Newfoundland is a clear exception, but British Columbia falls just short of recording doubled US exports. And as already noted, aggregate exports to the United States also doubled, 18.6 per cent of GDP to 37.6 per cent. Figures 2 and 3 chart these international and interprovincial exports for two provinces, Ontario and Saskatchewan. From a position where Ontario’s interprovincial and US exports were roughly equal in 1989, international exports by 2001 were close to three times as large as interprovincial exports (see figure 2). It is this dramatic shift in Ontario’s trade from an east-west to north-south axis that led Colin Telmer and me to entitle our book on the recent history of Ontario From Heartland to North American Region State ... (1998). Saskatchewan’s export trends in figure 3 tell a similar overall story, but with very different initial conditions. In 1989 Saskatchewan’s interprovincial exports were two-and-one-half times larger than its US exports. By 2001, however, US exports had exceeded interprovincial exports, albeit by a narrow margin. The implications of these trade flows for Canada’s political economy are nothing short of staggering. At the most general of levels, and probably the most startling as well, Canada is progressively less and less a single national economy and more and more a series of northsouth, cross-border economies. Morever, as one envisions these economies across our country, they are more similar economically/industrially to their US counterparts than they are to the other Canadian regions:

TABLE 2 International and Interprovincial Trade, 1989–2001

Canada NFLD PEI NS NB Que Ont Man Sask Alta BC

1989 Exports as % of GDP

2001 Exports as % of GDP

International

International

% of GDP (1)

US Share (2)

US as % of GDP (3)

Interprovincial (4)

% of GDP (5)

US Share (6)

US as % of GDP (7)

Interprovincial (8)

25.4 31.0 14.7 15.8 26.2 21.2 28.6 18.5 22.7 24.5 28.7

73.2 68.4 60.2 66.0 66.5 75.7 85.9 62.6 45.0 75.7 83.4

18.6 21.2 8.8 10.4 17.4 16.0 24.6 11.6 10.2 18.5 12.5

22.5 11.9 30.6 21.0 30.0 22.9 22.6 28.0 25.6 28.5 13.5

43.1 37.1 31.8 29.0 45.7 39.6 51.5 30.7 44.2 41.3 31.3

87.3 65.6 89.9 82.7 89.1 84.8 93.3 80.0 59.0 88.8 70.9

37.6 24.3 28.5 23.7 42.3 33.6 48.0 24.6 26.1 36.7 22.2

19.7 20.3 27.7 21.1 31.2 19.4 18.7 29.7 25.4 22.1 14.1

Source: Canada, Department of Foreign Affairs and International Trade, 2002: Tables 1A and 9E.

NAFTA and Canadian Federalism 45 FIGURE 2 Ontario’s Interprovincial and International Exports 55 50 45 40 % 35 GDP 30 25 20

Total International Exports

Exports to U.S.

01 20

99 19

97 19

95 19

93 19

91 19

19

89

15

Interprov. Exports

Ontario is more like Michigan, British Columbia is more like the US northwest, the Atlantic provinces are more like New England, and so on, than Ontario, British Columbia, and the Atlantic provinces are to one another. One obvious implication is that provinces will begin to legislate in ways that will privilege themselves and their citizens in NAFTA economic space. This is what the ‘Alberta Advantage’ is all about. It was the thrust behind former New Brunswick premier Frank McKenna’s digitization ‘miracle.’ And it is the essence of former premier Mike Harris’s Ontario economic vision (‘Ontario is the best jurisdiction in North America to live, work, invest, and raise a family’) and economic mission statement (‘Ontario will achieve sustainable economic prosperity with the best performing economy and highest quality of life in

46 Thomas J. Courchene FIGURE 3 Saskatchewan’s Interprovincial and International Exports 50 45 40 35

% GDP

30 25 20 15 10

Total International Exports

Exports to U.S.

01 20

99 19

97 19

95 19

93 19

91 19

19

89

5

Interprov. Exports

North America over the next ten years’) (Ontario Jobs and Investment Board, 1999: 15). Relatedly, the tax rates that matter most to Ontario are those in Michigan, Ohio, and New York, not those in British Columbia or Nova Scotia. The ramifications for Canadian federalism are also profound. These include a tendency towards not only greater decentralization but also greater policy asymmetry across regions. Indeed, the traditional nationalnational economic interface is in selected areas giving way to a regional– international interface, or even a provincial–international interface. Broadening and Deepening NAFTA NAFTA is among the most comprehensive trade agreements ever negotiated: ‘NAFTA is broader in scope and coverage ... than the WTO

NAFTA and Canadian Federalism 47

agreement’ and ‘was drafted at a level of detail substantially higher than the EC treaty’ (Abbott, 2000: 542). However, NAFTA is also among the most institutionally shallow trade agreements, presumably because its inability to adjust internally or adapt to new challenges suits the sovereignty-conscious Americans just fine (Belanger, 2002). Belanger goes on to note that while both Canada and the United States benefited initially from the detail and comprehensiveness of NAFTA, over the longer term the sheer size and power of the United States enables it to cope more easily than can Canada with the costs/frustrations of the increasing trade problems and irritants that arise precisely because NAFTA has little or no ability to resolve them. This is in sharp contrast to the EU which has a ‘relatively imprecise charter coupled with a high degree of delegation that may promulgate secondary legislation with more precise content’ (Abbott, 2000: 521). Hart and Dymond (2001) have referred to these accumulating costs/ frustrations as the ‘tyranny of small differences.’ These irritants, along with structural issues, would include ‘cumbersome rules of origin, discriminatory government procurement restrictions, complex antidumping procedures, intrusive security considerations, onerous immigration procedures, and other restrictive measures’ (ibid.: 3). Their proposed agenda (table 3) for managing the Canada-US border reflects many of these concerns. This agenda is an amalgam of broadening, deepening, and updating NAFTA. Broadening implies extending NAFTA to new areas – see items 4, 5, 7, and 8 (note that broadening in the EU context, namely extending NAFTA to other members such as those in the FTAA, is not addressed in the table). Deepening in the sense either of moving beyond a free trade agreement towards a customs union/common market or of embedding internal governance procedures into NAFTA is represented by items 2, 3, 5, 6, 7, 8, and 9. Items 1, 3, and 4 would fall into the updating category which would include the earlier-referred-to ‘tyranny of small differences.’ NAFTA and 9/11 The dastardly deeds of 9/11 brought home two distinct but nonetheless interrelated realities. The first is just how economically dependent Canada is on the seamless border and just how vulnerable Canada is when the border becomes dysfunctional. A border subject to unpredictable slowdowns and closures will wreak havoc on much of Canada’s

48 Thomas J. Courchene TABLE 3 An Agenda for Opening the Canada-US Border Further 1 For customs and border administration, more progress needs to be made on various initiatives to facilitate, streamline, and even eliminate the need for routine customs clearance of both people and goods. 2 For tariffs and related programs, such as rules of origin, industry on both sides of the border would benefit from the reduction and harmonization of MFN tariff levels, obviating the need for many of these programs. 3 For product and process standards and regulations, much more progress can be made in developing either common standards or greater acceptance of equivalence, mutual recognition, common testing protocols, and similar provisions. 4 For services, there is room to move beyond commitments on market access to greater reliance on common standards and mutual recognition; sectoral discussions related to financial, transportation, telecommunications, and professional services would also provide further scope for reducing discrimination and enhancing trade and investment opportunities, and increasing healthy competition on a broader basis. 5 For government procurement, the rules could advance from the limited entities method pursued in the GATT/WTO Procurement Agreement and expanded in the CUFTA/NAFTA to a full national-treatment approach, mandating that governments throughout the region purchase goods and services for their own use on a nondiscriminatory, fully competitive basis, at least insofar as North American suppliers are concerned. 6 For trade remedies – antidumping and countervailing duties, the rules should evolve beyond WTO – like procedural safeguards to common rules about competition and subsidies, reducing the scope for anti-competitive harassment and procedures. 7 For competition policy, more effort could be devoted to setting out common goals and providing a basis for cooperative enforcement procedures. 8 For investment, provisions should move further down the track of enforcement by the domestic courts of jointly agreed rules of behaviour, and 9 Institutionally, the two governments may need to move beyond the ad hoc intergovernmental arrangements of the CUFTA and NAFTA toward more permanent supranational institutions. (Hart and Dymond, 2001:10–11)

manufacturing and export sectors. Existing Canadian firms operating in the just-in-time manufacturing mode will consider relocating south of the border while incoming North American foreign direct investment will discount Canadian locations. The second is that the United States has a new single-mindedness. Homeland security will henceforth be uppermost to such an extent that should the movement of goods, persons, services, and capital across borders compromise this security, then the border arrangements will

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be altered. Small wonder, then, that there has been a groundswell of interest and activity in Canada directed towards rethinking NAFTA in this larger (and new) context of an overall security perimeter encompassing homeland security and economic security. As the Canada Council of Chief Executives (CCCE) notes: ‘North American economic integration is irreversible and North American economic and physical security is indivisible’ (d’Aquino, 2003: 1). This potential window of opportunity has led to calls for a ‘grand bargain’ (Gotlieb, 2003), or a ‘big idea’ (Dobson, 2002), since in order to engage US officials any reform proposal must, the experts say, be sufficiently bold, broad, and creative. One such grand strategy could be a customs union, another could be a common market. Still another is Dobson’s proposal for a pragmatic ‘strategic bargain’: Canadian initiatives would be required in areas of interest to the United States, specifically border security, immigration, and defence. Energy security is another key area where Canada should build on its existing strengths. In exchange for these initiatives, Canada should seek customsunion and common-market-like arrangements that achieve deeper integration but recognize deep attachments to political independence and distinctive national institutions. (ibid.: 1)

Along similar lines, the CCCE proposes that Canada and the United States work towards a ‘North American resource security pact’ (encompassing oil, gas, coal, uranium, metals, forest products and agriculture) which would then be levered to resolve long-standing issues related to pricing, subsidies, and regulatory practices in selected areas, such as softwood lumber. Even more forward-looking is Daniel Schwanen’s 2004 attempt to sketch out the text of a ‘treaty’ for North America. For present purposes, I need not elaborate further on the rich variety of options for broadening and deepening NAFTA. What will be assumed is that NAFTA will continue to evolve in the direction of facilitating further economic integration. Admittedly, there are numerous Canadians and groups of Canadians who would prefer the NAFTA not be deepened and/or would argue that the United States would be willing to deepen only on terms that are unacceptable to Canada. I disagree with the latter. The December 2001 Smart Border Declaration and the associated thirty-point Smart Border Action Plan (which deals with four pillars: the secure flow of people, the secure flow of goods, secure infrastructure, and coordination/information-sharing) speak to

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the Canada-US mutual interest in managing the border. And on the trade side it is important to remember that thirty-eight of the US states have Canada as their number one international export market, with another six having Mexico as their number one international market. Moreover, US exports to Canada are larger than US exports to the pre2004 enlargement EU. Hence, on both the security and trade fronts there is a mutuality of interest. Federalizing/Democratizing NAFTA All three NAFTA countries are federations. This being the case, why not allow NAFTA’s more than ninety provinces (Canada) and states (US and Mexico) to become more fully and more formally associated with NAFTA? For example, the Montana-Alberta Memorandum of Understanding and Cooperation (which is one of many such Canada-US or Canada-Mexico sub-national agreements/arrangements) could be recognized as a NAFTA-related agreement. Likewise, provinces and states should be allowed to signal their willingness to comply with those NAFTA provisions which currently only apply to, or bind, the national governments – for example, the government procurement provisions. Stephen Blank (2002: 11–12) goes even further by proposing that Mexican, US, and Canadian state and provincial legislators and governments play some role in the institutions of NAFTA and/or North America. Specifically, allowing the sub-national governments some NAFTA flexibility with respect to international mutual recognition and subsidiarity are appropriate instrumentalities for federalizing NAFTA. The conception of ‘democratizing’ NAFTA would imply embedding it in the larger framework of North American integration. As my Queen’s colleague Robert Wolfe (2003) has emphasized, in 2002 there were nearly three hundred cross-border treaties, agreements, and understandings in force. But this is just the tip of the iceberg of the thousands of arrangements – some formal and some informal, some written and some tacit or in the form of conventions, some public and some private – that Wolfe argues serve as a living and growing ‘constitution’ of North America. While there is no overarching North American political project (à la Europe) associated with NAFTA, deepening or democratizing North American political integration on the one hand, and democratizing NAFTA to embrace any aspects of the comprehensive and complex web of cross-border arrangements on the other, will surely serve to advance

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the notion of a community of North American interests. Indeed, the existence of a more pluralistic, decentralized, mutual-recognition and subsidiarity-driven framework working within, or at least alongside, NAFTA may well be the dynamic that will drive the evolution of NAFTA itself. Now that the relationship between NAFTA and Canadian federalism has been broached, the remainder of the paper focuses on more direct ways in which the integration of North American economic space is impinging on the structure and processes of Canadian federalism. East-West versus North-South Tensions Arguably, the most daunting challenge arising from the integration of North American economic space is how to preserve and promote our east-west social/transfer/human-capital unions in the face of a northsouth trading axis. This challenge can be cast in an even starker perspective. Much of our east-west economic infrastructure that has served us so well over our history is in the process of becoming what economists would call a ‘standard asset.’ Indeed, even the ‘ribbons of steel’ are being re-oriented north-south. In this context a long-standing concern has been that the heightened degree of dependence on the US market will tempt Canadian policy authorities to cave into US interests in the name of keeping the border fully open and operative. I believe this to be unlikely, since our version of a sharing community, which serves to identify us in North America, was built during the very period when we were progressively integrating trade-wise with the Americans. And with recent initiatives such as the Canada child tax benefit to address children’s poverty, we are continuing to build our sharing community (and diverging from the Americans) in this post FTA/NAFTA period. Of more concern are the emerging pressures arising from the heightened degree of provincial trade dependence. Consider the softwood lumber dispute. The forestry sector practices and policies in some provinces (for example, New Brunswick) do not fall under the umbrella of the dispute. Other provinces have lobbied in Washington to plead for an exemption. What this means is that there may be both external and internal pressure on British Columbia, for example, to alter its policies. Moreover, Ottawa may find itself having to balance regional trade-offs in terms of formulating its own responses. Thus, the combination of heightened provincial north-south trade linkages on the one hand, and

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the differing industrial structures of the provinces on the other, mean that individual provinces may find themselves isolated both internationally and domestically by trade disputes. While both of the above relate to national and/or provincial tensions arising from trade disputes, the much more likely tension will arise from provinces legislating to promote their respective trade and economic interests within NAFTA. Policy externalities/spillovers, both federal-provincial and interprovincial, are sure to be ubiquitous. This being the case, there is a need for Canada to internalize these externalities. Appropriately, Canada has embarked on the process of accommodating the tensions between our trading and societal axes, as well as on preserving and promoting our east-west linkages. On the infrastructure front, ‘filaments of fibre’ are replacing the ribbons of steel as our eastwest ‘railway,’ as befits the knowledge/human-capital era. On the policy interdependency front, Canada has launched a fascinating and creative series of initiatives and instrumentalities – some interprovincial, some federal-provincial – that are serving to strengthen Canada’s internal economic, social, and transfer unions on the one hand, and are allowing provincial policy flexibility on the other. Among these initiatives are: the 1994 Agreement on Internal Trade (AIT); the 1996 Report to Premiers by the provincial-territorial Ministerial Council on Social Policy Reform and Renewal; the revitalization of the annual premiers’ conferences (APCs) and in particular the Jasper, St Andrews, and Saskatoon APCs over 1996–8; the 1997 Calgary Declaration; the 1997 budget which launched the federalism-friendly Canada child tax benefit (CCTB), inspired by the Report to Premiers; the watershed 1999 social union framework agreement (SUFA) and, finally, the 2003 Quebec-led, all-provinces Council of the Federation. Not surprisingly perhaps, the literature offers a variety of rationales for, and implications of, these initiatives. Part of this variety relates to the differing motivations for their creation. The FTA and NAFTA were clearly the triggers for the AIT. The Report to Premiers was in direct response to the 1995 federal budget and then finance minister Paul Martin’s call to the provinces to help develop ‘consensus principles’ to underpin social Canada. The Calgary Declaration was the recognition by the nine provinces of Quebec’s specificity in the wake of the narrow victory by the no forces in the 1995 referendum. Although the provincial pan-Canadianism as embodied in the revitalized APC process was also inspired by the near-failure of the referendum, it was even more the result of a realization on the provinces’ part that they had to assume

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greater pan-Canadian responsibility for, and coordination of, policies in their respective jurisdictions. And because the provinces’ efforts were beginning to play well with Canadians, Ottawa moved in to take some leadership of the process, resulting in the child tax benefit in the 1997 budget and, later, the federal-provincial framework agreement on the social union. It is appropriate to note that while Quebec signed the AIT, it only wished to have observer status in the process that led up to the Report to Premiers and it was not a signatory to SUFA. Partly as a result, many of these initiatives tend to be viewed against the backdrop of the QuebecCanada relationship – for example, the focus on the role of the federal spending power and on whether SUFA is centralizing or decentralizing. While all of these statements and interpretations ring true in varying degrees, there is another and, I think, overarching perspective from which to view these developments: they represent creative intergovernmental responses to the challenges posed by the dramatic shift in trade from an east-west to a north-south axis. Note that these instruments must address a range of objectives. One of these is that they need to secure our internal (east-west) economic and social unions. The AIT addresses the former, while the enunciation of pan-Canadian social policy principles (including a reaffirmation of five CHA principles) in the Report to Premiers and replicated in the SUFA address the latter. Second, given that knowledge and human capital are progressively at the cutting edge of competitiveness, it is essential that Canada also become an east-west human-capital union. The preferred instrument for accomplishing this is provision for the mutual recognition of accreditation and qualifications across provinces. Since there are both economic and social imperatives associated with mutual recognition, it is appropriate that this provision was contained in the AIT on the economic side as well as in the Report to Premiers and SUFA on the social side. Third, the Council of the Federation (which arguably is a more formal version of the APC process, but now including Quebec) is potentially an important and overarching pan-provincial body responsible both for internalizing interprovincial policy spillovers and for presenting a common provincial front vis-à-vis the federal government. While the council will get headlines when it confronts Ottawa over the fiscal imbalance issue or the health care issue, its most important contributions may well be in the area of reconciling and/or otherwise accommodating interprovincial differences. For example, developing an all-provinces’ posi-

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tion on issues such as the softwood lumber disputes may be easier within the council format than the first ministers’ conference format. Finally, but not exhaustively, SUFA (and the CCTB before it) is the epitome of a flexible structure/process that can simultaneously engage the north-south and east-west tensions and imperatives. On the one hand it recognizes the federal government’s right to exercise its spending power. On the other hand, it not only constrains the manner in which the spending power can be exercised but also provides policy room for the provinces to tailor the objectives of the spending power to suit their own needs and reality. By way of summary, the pervasive policy interdependencies arising in the context of superimposing north-south trade integration on our east-west socioeconomic integration has required a reworking and rethinking of the nature of our federal-provincial and interprovincial arrangements and relationships. In less than a decade Canada has embarked on a degree of intergovernmentalism (both federal-provincial and interprovincial) and, indeed, co-determination that is serving to transform the governing structures of our federation. This, then, is part of the way in which North American economic integration is spilling over into the structures and processes of Canadian federalism. However, there is another, albeit related, manner that NAFTA is impinging on the operations of Canadian federalism – namely the rise of global city regions (GCRs). GCRs, NAFTA, and Federalism The evolution of Ontario towards region-state status is, for all intents and purposes, the evolution of Toronto in the direction of becoming a global city region (GCR). Indeed, without Toronto as a powerful economic engine with an international reach, there would be no Ontario region state. More generally, each of Canada’s north-south regions effectively pins its NAFTA fortunes on its lead city: Vancouver for British Columbia, the Calgary-Edmonton corridor for Alberta; Winnipeg for Manitoba, Montreal for Quebec, and Halifax for the Maritimes/Atlantic region. And the same is true for the so-called four-motors of continental Europe: Lombardy centred around Milan, Baden-Württemberg (Stuttgart), Rhône-Alpes (Lyons), and Catalonia (Barcelona). However, GCRs are not only dominant players in traditional physical geography or what Castells (2001) calls the space of places, they are also increasingly dominant in network geography or the space of flows. This

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is because in this information era knowledge and human capital are at the cutting edge of wealth creation and competitiveness, and the GCRs are the dominant nodes in these networks by virtue of their intense concentrations of knowledge, human capital, R and D, that drive innovation, economic activity, and exports. In their recent book, Global CityRegions, Scott et al. (2001: 18) note that ‘global city regions come to function increasingly as the regional motors of the global economy, that is as dynamic local networks of economic relationships caught up in the extended worldwide webs of interregional competition and exchange.’ Globalization guru Kenichi Ohmae (2001: 33) is more sweeping: ‘the world economically and in management terms, has become a network of ... prosperous city-regions.’ The larger societal ramifications of this are as dramatic as they are straightforward: whether Canada can sustain itself as a high-income economy within an integrated North America will almost certainly come down to how our global city regions will fare in relation to their US counterparts (Harris, 2003: 50). At least two policy implications flow from this. First, Ottawa will naturally be vitally interested in the welfare of these GCRs since our nation’s standard of living is at stake. The second implication is related to the first: the GCRs have come to recognize that their economic and political star is in ascendency and they are accordingly beginning to flex their individual and collective muscle. There are reasons that are propelling the cities’ ascendancy. For example, subsidiarity calls for more powers/functions to be transferred down to cities. And static and dynamic efficiency concerns would call for more responsibility for taxation and expenditure to be devolved to cities (TD Economics, 2002a, 2002b). Moreover, nation-building in our former resource-based economy was often bound up with mega-projects which, by their very nature, tended to be rural. Nation-building in the knowledge era, and indeed what now sells electorally, is increasingly related to citizen issues (health, education) and these are inherently urban since this is where citizens are. Hence, cities would have attracted increased attention even without North American integration. Nonetheless, there is a qualitative and quantitative difference between the needs of GCRs and the rest of Canada’s cities. For example, since our GCRs will be competing head-to-head with their US counterparts, it is important that they not be unduly impeded in this activity. Hence, while the former behind-tariff-walls Canada had always viewed our large cities as appropriate places to redistribute from, critical to success-

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ful GCRs in a NAFTA environment is that they be able to retain a larger share of the revenues generated within their boundaries. This caveat aside, the key federal issue in play is that Canada’s cities are constitutionless: they are the creation and creatures of the provinces. If this is the starting point, the relevant conclusion or end point is surely that Canada’s cities and especially the GCRs will be brought more fully and more formally into the operations of Canadian federalism. What is in doubt are the structures and processes by which this might occur. Already there are numerous factors in play on the part of all three of GCRs, the provinces, and Ottawa. Recent demands/initiatives on the part of the cities themselves would include: – a demand for greater revenue and expenditure autonomy, similar to the situation of most GCRs elsewhere; – a desire to be able to directly access infrastructure and other funds from Ottawa in the same manner as US GCRs can do from Washington; – a concerted lobbying effort, including the formation of the C5 (Toronto, Montreal, Vancouver, Calgary, and Winnipeg) and a revitalization of the Canadian Federation of Municipalities, with the goal of carrying the cities’ message to Ottawa, if they cannot make headway at the provincial level; – the proposed charter for the megacity of Toronto (table 4) which envisages a more formal status within the federation, replete with enunciated powers, enhanced fiscal autonomy, and a formalized relationship with the other orders of government. Several other Canadian cities already have charters of various sorts. Ottawa’s interests in the city/urban agenda have already been touched upon: that is, competitiveness and electoral saliency. Beyond this, there are important issues of accountability and visibility on the one hand and operational relevance on the other, since many federal policies are implemented in and by cities. Phrased differently, in many areas Ottawa would probably prefer to deal directly with cities rather than having to deal with them indirectly through the provinces. Indeed, while Ottawa has delayed its proposal to transfer a portion of the federal gasoline tax to the cities (in part at least because of concerns raised by Quebec) it has exempted the cities from the federal GST. More generally, one might venture a guess that Ottawa would not be un-

NAFTA and Canadian Federalism 57 TABLE 4 The Greater Toronto Charter ARTICLE ONE The Greater Toronto Region form an order of government that is a full partner of the federal and provincial governments of Canada. ARTICLE TWO The Greater Toronto Region, and its municipalities, be empowered to govern and exercise responsibility over a broad range of issues, including: child and family services; cultural institutions; economic development and marketing; education; environmental protection; health care; housing; immigrant and refugee settlement; land-use planning; law enforcement and emergency services; recreation; revenue generation, taxation and assessment; transportation; sewage treatment; social assistance; waste and natural resource management; and water supply and quality management, with the exception of those matters as are mutually agreed upon with other levels of government with respect to those responsibilities outlined in article two. ARTICLE THREE The Greater Toronto Region have the fiscal authority to raise revenues and allocate expenditures with respect to those responsibilities outlined in article two. ARTICLE FOUR The greater Toronto Region be governed by accessible, democratic governments, created by their citizens and accountable to them for the exercise of the governments’ full duties and responsibilities. ARTICLE FIVE The Greater Toronto Region continue to fulfill its obligation to share its wealth, innovation, and other assets with the rest of Canada, through appropriate mechanisms developed in concert with other levels of government.

happy if the cities were to gain powers (formally or informally) at the expenses of the provinces. Although the provinces had the constitution on their side in terms of the cities, they were nonetheless concerned by these developments. As I have argued elsewhere (Courchene, 2004), the provinces were already caught up in the ‘hourglass federalism’ trap – namely, the rising medicare costs that absorbed any and all surplus revenues at the expense of most other spending programs on the one hand, and the growing range of federal government initiatives that bypass the provinces and deal

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directly with citizens and cities on the other hand, which in tandem threatened to leave the provinces in the squeezed middle of a divisionof-powers hourglass. Not surprisingly, the most obvious way to counter these federal initiatives was to seek to redress the fiscal imbalance: if the federal government is sufficiently fiscally flush that it has funds to share with cities, is this not prima facie evidence of a serious fiscal imbalance in the federation? Arguably, the additional federal transfers over the next decade committed by Ottawa in the first ministers meetings of September and October of 2004 ($41 billion for medicare and $33 billion for equalization) will go some way to offset this imbalance. Beyond this the provinces are also pursuing other avenues with the cities. For example, the Council of the Federation may invite the cities to occupy a sort of associate membership. This would not serve to convert the current federal-provincial relationship into a federal-provincialmunicipal relationship, but it would bring cities indirectly into the intergovernmental game via the Council. And, of course, some provinces (Ontario, Manitoba, and possibly others) have agreed to share provincial gas revenues with their cities. Others have had sharing schemes in place for some time. It is too early to speculate how the cities’ desire for enhanced powers in the federation might evolve. What is not a matter of speculation, however, is that cities and especially GCRs are the dynamic motors that will drive our success in NAFTA economic space. As such, they presumably will succeed in finding ways to involve themselves more fully and more formally in the governance of the federation. NAFTA and Sovereignty Harry Arthurs is one of the most ardent spokespersons for the case that Canada’s institutions and culture are being transformed. His fear is that, in cosying up to the Americans, Canada is falling prey to what he calls the two TINAs, the TINA of our time (There Is No Alternative) and the TINA of our place (Trapped In North America). He then adds: Moreover, our two TINAs are mutually reinforcing. The TINA of our time, neo-conservatism, ... is embedded in what is called, after its provenance, ‘the Washington consensus.’ The TINA of our place – our many, deep and complex connections with the United States – ensures that Canada will be amongst the last to abandon that consensus. And our tendency to constitutionalize the two TINAs makes it more than likely that long after

NAFTA and Canadian Federalism 59 the Washington consensus dissolves – as it almost surely will, some day – Canadian public policies will continue to be shaped by it. (Arthurs, 1999: 19)

The NAFTA-enhances-sovereignty case might go as follows. Canada and Canadians are not interested in US institutions or values or policies. But what we do want from the Americans is access to their markets. Since NAFTA gives us this, we are now free to legislate in other areas in our own likeness and image. However, without access to the US market our values and policies could well become pawns to curry favour with American interests in return for greater market access. Rather than attempting to choose between these two positions, it seems preferable to redirect the focus on some of the underlying forces at play. To do this, it also seems preferable to recast the issue in more general terms – namely, the relationship between international integration agreements on the one hand and national sovereignty on the other. Intriguingly, although not very transparently, the appropriate starting point for addressing this relationship is the familiar ‘tragedy of the commons,’ that is, the implications arising from the English common grazing ground or the commons. As noted by Hardin (1968), each herder will be enticed to add yet another sheep to his herd, the end result of which is overgrazing: ‘freedom in the commons brings ruin to all.’ One solution is to assign property rights to, or to privatize, the pasture which removes its common-property feature. Another is to develop a set of rules which will serve to constrain the actors. Now fast forward to the environment and the Kyoto Protocol. The rationale for the protocol (setting aside its specific provisions) is to address the ‘global environmental commons.’ Again, freedom in the commons spells ruin to all. And again, one solution is to develop a set of rules that serves to constrain the various actors (polluters and their national governments). While these agreements/protocols will surely limit the room to manoeuvre of national governments, they will equally surely increase effective individual and collective control over the future of the environment. Arguably, therefore, environmental protocols are sovereignty enhancing, and I think that the public perceives them as such. With this as backdrop, focus shifts to the relationship among globalization, FTAs, and sovereignty. In the Westphalian framework, nations are territorially sovereign within an international order that has no overarching authority. In the era of high tariffs and limited capital mobility, these nations held effective property rights over their eco-

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nomic space and, in aggregate, over global economic space. However, the processes of globalization have progressively undermined this territorial economic sovereignty. For example, highly mobile capital can and will flow over, around and through political and policy boundaries, so much so that nations are losing the ability to control key aspects of their economy within their own borders. In light of the above, the result should be clear: globalization has converted the Westphalian system of economic property rights into a veritable global economic commons. Once again, freedom in this commons will spell ruin for all if nations attempt to outbid each other for capital. This is an erosion of national sovereignty. How do nations reclaim their sovereignty? The obvious avenue is via international economic protocols or FTAs. In effect, such FTAs allow nations to pool shares of their sovereignty in order to engage capital head-on in the relevant multi-nation economic space which, in turn, serves to exert control over the former economic commons. However, because factor mobility and globalization are efficiency-enhancing and wealth-creating, nations will not attempt to reproduce the preglobalization version of national economic space. Rather, the focus will be on rules, procedures, and standards under which the free (or freer) mobility of goods and factors can proceed. While this will admittedly limit the room to manoeuvre on the part of national policy makers, the more important result is that it allows nations a role in formulating multilateral principles and procedures that not only will provide a degree of order and certainty to the international economic order but, in addition, will allow national governments to regain and/or reassert domestic control over selected policy areas. This is clearly sovereignty-enhancing. Indeed, applying this line of reasoning to the EU led information-era guru, Manuel Castells, to proclaim that nationalism, not federalism, is the political goal of the EU. This analysis carries over in principle to the successive Canada-US economic integration agreements on the one hand and to multilateral agreements such as GATT and the WTO on the other. To be sure, this leaves open the issue of whether NAFTA itself is sovereigntyenhancing. Conclusion The FTA, NAFTA, and North American integration generally have already dramatically altered Canadian and North American economic

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space. That this should have an influence on Canadian political space should hardly be surprising. For one thing, succeeding in NAFTA economic space increasingly requires provinces (and Canada) to legislate in ways that privilege themselves and their citizens in this North American context. More problematic, especially for Canadian federalism, is that the coexistence of a north-south trading axis and an east-west social/political axis is generating policy externalities and spillovers which need to be internalized. This juxtaposition provides one of the rationales for the fascinating spate of intergovernmental arrangements (some interprovincial, some federal-provincial) in the post FTA/NAFTA era: In addition, North American economic integration in tandem with the knowledge/information revolution have catapulted global city regions into the role of the new dynamic motors of the information era. The obvious implications for Canadian federalism are that these GCRs will lever their new-found power and influence to attempt to become more fully and formally integrated into the processes and structures of Canadian federalism. I have raised the issue of whether these developments are impinging on national sovereignty. My tentative answer is that it is globalization itself (via ultra-high factor mobility and the informatics revolution) that is eroding national sovereignty, and I offer the proposition that international economic agreements can and do serve to enhance (or reclaim) key aspects of national sovereignty. This brings me full circle, as it were, since there is no one better to address the nature of sovereignty, citizenship, and democracy within the new societal order than a political scientist who has not only mastered the structure and processes of Canada’s governing institutions but as well is steeped in the University of Saskatchewan’s economics and political science tradition. Hence, I hope that David Smith, as he deservedly assumes the venerable rank of professor emeritus, will deem that these issues merit his professorial attention.

REFERENCES Abbott, F.M. 2000. ‘NAFTA and the Legalization of World Politiques: A Case Study.’ International Organization 54, no. 3: 519–47. Arthurs, H.W. 1999. ‘Constitutionalizing Neo-Conservatism and Regional Economic Integration: TINA x 2.’ In Room to Manoeuvre? Globalization and Policy Convergence, ed. Thomas J. Courchene. Queen’s University: The John

62 Thomas J. Courchene Deutsch Institute for the Study of Economic Policy, Bell Canada Papers on Economic and Public Policy: 17–74. Bélanger, Louis. 2002. Vers une communauté nord-américaine? Asymétrie et instituions communes au sein le l’ALENA. Paper presented at the conference Integration dans les Amériques: Dix ans d’ALENA. 3–Sorbonne, Paris, June 13–14. Blank, Stephen. 2002. Building the North American Community: Next Steps. New York City: Mimeo Business School, Pace University. Castells, Manuel. 1998. The End of Millennium. Oxford: Blackwell. – 2001. The Internet Galaxy: Reflections on the Internet, Business and Society. New York: Oxford University Press. Courchene, Thomas J. 2004. ‘Hourglass Federalism.’ Policy Options/Options politiques April 2004: 12–17. Courchene, Thomas J., and Colin R. Telmer. 1998. From Heartland to North American Region State: The Social, Fiscal and Federal Evolution of Ontario. Toronto: Centre for Public Management, Rotman School of Business, University of Toronto. d’Aquino, Thomas. 2003. Security and Prosperity: The Dynamics of a New Canada– United States Partnership in North America. Presentation to the annual general meeting of the Canadian Council of Chief Executives, Toronto, 14 January. Available at CCCE website. Dobson, Wendy. 2002. Shaping the Future of the North American Economic Space: A Framework for Action. Commentary 162. Toronto: C.D. Howe Institute. Gotlieb, A. 2003. ‘A Grand Bargain with the US.’ Globe and Mail, 5 March: A14. Hardin, G. 1968. ‘The Tragedy of the Commons.’ Science 1243: 48. Harris, Richard G. 2003. ‘Old Growth and New Economy Cycles: Rethinking Canadian Economic Paradigms.’ In The Art of the State: Governance in a World Without Frontiers, ed. Thomas J. Courchene and Donald J. Savoie. Montreal: Institute for Research on Public Policy. Hart, M., and W. Dymond. 2001. Common Borders, Shared Destinites: Canada, and the United States and Deepening Integration. Ottawa: Norman Patterson School of International Affairs at Carleton University, Centre for Trade Policy and Law. Hufbauer, G.C., and G. Vega-Cánavas. 2003. ‘Whither NAFTA: A Common Frontier.’ In The Rebordering of North America: Integration and Exclusion in a New Security Context, ed. P. Andreas and T. Biersteker. New York: Routledge (0000). Ohmae, Kenichi. 2001. ‘How to Invite Prosperity from the Global Economy into a Region.’ In Global City Regions: Trends, Policy, Theory, ed. Allen J. Scott, Oxford: Oxford University Press.

NAFTA and Canadian Federalism 63 Ontario Jobs and Investment Board. 1999. A Road Map to Prosperity: An Economic Plan for Jobs in the 21st Century. Available at www.ontario-canada .com/jobgrow. Schwanen, Daniel. 2004. Deeper, Broader: A Roadmap for a Treaty of North America. In The Art of the State II: Thinking North America, ed. Thomas Courchene, Donald Savoie and Daniel Schwanen. Montreal: Institute for Research on Public Policy. Scott, Allen J., John Agnew, Edward W. Soja, and Michael Storper. 2001. ‘Global City Regions.’ In Global City-Regions: Trends, Policy, Theory, ed. Allen J. Scott. Oxford: Oxford University Press. Smith, David E., Peter Mackinnon, and John C. Courtney, eds. 1999. After Meech Lake: Lessons for the Future. Saskatoon: Fifth House. TD Economics. 2002a. A Choice Between Investing in Canada’s Cities or Disinvesting in Canada’s Future, 22 May. Toronto: TD Bank Financial Group. TD Economics. 2002b. The Greater Toronto Area (GTA): Canada’s Primary Locomotive in Need of Repairs, 22 April. Toronto: TD Bank Financial Group. Wolfe, R. 2003. ‘See You in Washington? A Pluralist Perspective on North American Institutions.’ Choices 9, no. 4. Montreal: Institute for Research on Public Policy.

3 Intrastate Federalism in Canada and the Civil Service donald j. savoie

It is a rare occurrence indeed in Canada when politicians from different parties, academics, journalists, and public servants all agree on something. Regionalism, as a pervasive feature of Canadian society and politics, is one such instance. This, however, is where the agreement ends, as there is a wide divergence of views on how best to deal with the issue. Some insist that the country’s political institutions need to be updated, others look to the workings of executive federalism as the way ahead, and still others maintain that regionalism is simply a part of Canadian political life and that we must learn to live with it as best we can. One keen observer of Canadian politics calls regionalism the ‘Canadian disease,’ adding that ‘the political culture of Canada may be defined as a profound sense of regional grievance married to a discourse of entitlement’ (French, 1990: 2). Former prime minister Jean Chrétien often argued that regional grievances were simply part of Canadian life and that the federal government somehow just had to deal with it. Scholars have looked at the place of Quebec in Confederation, at the impact of the Charter of Rights on federal-provincial relations, the changing nature of executive federalism and non-constitutional renewal (for example, Lazar et al., 1999). They have also produced some studies on intrastate federalism in Canada. By this, we mean structural and other arrangements by which regional interests are promoted or protected within the central government. These studies, however, have, for the most part, looked to the role of the prime minister and cabinet, the House of Commons, and the Senate to accommodate regional interests and grievances. The purpose of this chapter is to examine intrastate federalism from the perspective of the federal civil

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service and to assess its capacity to accommodate or deal with regional circumstances. Our constitution is silent on the civil service and its role and responsibilities. Indeed, Canada’s consolidation of its constitutional acts does not have a great deal to say about the machinery of government. It reads: The Executive Government and Authority of and over Canada is ... vested in the Queen ... [and] ... there should be a Council to aid and advise in the Government of Canada, to be styled the Queen’s Privy Council for Canada; and the persons who are to be members of that Council shall be from time to time chosen and summoned by the Governor General and sworn in as Privy Councillors, and members thereof may from time to time be removed by the Governor General.

It says little else on the matter and nothing at all to guide the work of the prime minister, ministers, and permanent officials. Even the Constitution Act of 1982 remains silent on the role and responsibilities of the bureaucracy. The fathers of Confederation thought that they had settled the matter once and for all when they wrote in the British North America Act that Canada should have ‘a government similar in principle to that of the United Kingdom.’ In brief, they wrote the constitution according to the British notion of responsible parliamentary government and grafted to it a federal structure based on the American model. It is important to note that the British civil service took shape in a unitary form of government. Regionalism, though always important in any political system, has never dominated British politics to the same extent that it has in Canada. It is also important to recognize that, though the civil service may well have been an institution of limited importance in 1867, this is not the case today. Indeed, one can now hardly overstate its importance. The role of the federal government now extends to virtually every sector of Canadian society. The civil service is Canada’s largest employer and it is present in the daily lives of all Canadians. It houses the country’s largest public policy advisory capacity and the prime minister and cabinet depend on its work to strike new policy measures, to make decisions, to deliver programs, and to carry on operations. Yet we have paid little attention to its role in dealing with regional issues. Even the literature on intrastate federalism in Canada has paid scant attention to this aspect. One of the most widely read studies on the topic devoted all of three pages to the

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role of the civil service in Canadian regionalism (Smiley and Watts, 1985: 78–81). This chapter looks at the forces and events that have shaped the Canadian civil service. It also reviews the growing influence of the civil service over both policy and administration and how the civil service as an institution looks at Canada’s regional factor in shaping public policy. The chapter also reports on the composition of the civil service from a regional perspective. Shaping the Institution J.E. Hodgetts designates the period 1841–67 as the formative years of the Canadian civil service, insisting that few students of government appreciate the extent to which decisions, by both ministers and officials, determined many present practices (Hodgetts, 1955: v). These formative years had their roots in Britain, Lower and Upper Canada, and nowhere else. The early architects of the machinery of government sought to replicate British forms and processes in the colony. Indeed, developments in Britain very often directly affected Canada’s civil service and machinery of government on both large and small structures. The result is that ‘British influence informed virtually every major development in the rise of the Canadian civil service,’ including the implementation of the departmental structure (Savoie, 2003: 25). Still, the North American colonies and their bureaucracy had to deal with something that British civil servants did not: geography. They had to come up with ways to provide services over a vast territory and had no choice but to experiment with decentralization. This is difficult enough for mature governments with well-oiled administrative and financial processes already in place. For the pre-Confederation civil service to decentralize operations while creating a departmental structure was an extraordinary challenge. The fact that they were unable to look to Britain for guidance here did not help matters. As a result, major problems surfaced in regional and local offices. Hodgetts writes that ‘it would be a tenable thesis that the history of the developing federal civil service reveals a gradual curtailment of powers delegated to local agents ... and has tended to place a few key officials under an unbearably heavy burden’ (1955: v). The political and administrative difficulties associated with this decentralization gave rise to an institutional memory that, I believe, lingers still. One needs to bear in mind that means of communications were not

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very efficient in 1867 and that the state of public administration was not very advanced. The early architects of the Canadian machinery of government had to improvise, given Canadian geography, great distances between central and local offices, and significant regional differences. Decentralization was difficult in this environment. The issue was less one of moving administrative or program decisions to local offices than of building a departmental structure in Ottawa and ensuring efficient administrative and financial decisions. Within months of Canada being born, it became clear that Ontario and Quebec would dominate the new civil service. The British North America Act provided for the transfer of some officers and clerks of the united Province of Canada ‘to the service of the Dominion’ (Bryce, 1986: 1). This new civil service, in fact, consisted of little more than the old bureaucracy of the old United Provinces of Canada. This became important for residents of New Brunswick and Nova Scotia because they became convinced that the federal government could never appreciate, for example, that harbours were as critical to many maritime communities as roads and canals were to central Canada. Nor, it was felt, would the civil service give proper attention to trade issues affecting the region (Buckner, 1993: 49). It is important to underline the fact that the Canadian civil service has been designed to serve the government in a Westminster-style parliamentary system. Accordingly, the civil service has no constitutional personality or responsibility distinct from the government of the day. The government can turn to the civil service knowing that civil servants have exchanged overt partisanship, some political rights, and a public profile in return for permanent careers, or at least indefinite tenure, anonymity, selection by merit, and the promise of being looked after at the end of a career. The prime minister and ministers can also take comfort in the knowledge that they will never be challenged publicly by career officials, or by those who have an intimate knowledge of a relevant policy or administrative issue. Our system of government also enables the concentration of power at the centre of government. The civil service constitutes no check on that power. Indeed, it may well contribute to its development. The prime minister has the power to appoint and dismiss cabinet ministers, as well as deputy ministers and the heads of agencies and crown corporations. The prime minister has come to dominate the government for many other reasons. But this does not tell the whole story about where power lies in government. Cabinet ministers also hold some power

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within their departments and they do participate in cabinet deliberations. Public servants, meanwhile, have the power to make some administrative decisions and they have considerable influence in shaping public policies and delivering programs. Notwithstanding numerous reforms introduced over the past twenty years, the machinery of government today looks a great deal as it did in 1980. Indeed, one can still easily detect Max Weber’s hand in government organization. Weber’s blueprint for bureaucratic structure operates on the basis of office hierarchy where there are clear lines of descending authority (1947: 333–4). In any event, the federal government has no choice but to organize its departments and agencies in a clearly defined hierarchy if only because the doctrine of ministerial responsibility continues to underpin accountability in our system of government. The doctrine offers accountability through time since the current minister is responsible for all activities of the department, past and present. The minister can reach down the department organized as it is in a hierarchy of offices to secure answers and initiate corrective measures (Marshall and Moodie, 1971: 55; Sutherland, 1991: 95). The Institution Has Influence It is not possible to delineate in clear terms the power and influence of Canada’s political and administrative institutions. But this much we do know. Senior career officials wield considerable influence in shaping public policy and in delivering government programs. It has not been possible for a long time to state that politicians decide all policy issues and career civil servants only look after administrative matters and implement ministerial decisions. Indeed, the growing influence, if not power, of career officials has been a major public policy issue in western governments during the past thirty years. By the mid-1970s leading politicians began to voice their criticism publicly about the work of their civil servants. Richard Crossman, a prominent minister in Harold Wilson’s Labour government in Britain, led the charge from the political left, the traditional ally of the civil service. His concerns had more to do with what he felt was unresponsiveness than with management. In his widely read diaries, which began to appear in 1975, he claimed that ‘whenever one relaxes one’s guard the Civil Service in one’s Department quietly asserts itself ... Just as the Cabinet Secretariat constantly transforms the actual proceedings of Cabinet into the form of the Cabinet minutes (i.e., it substi-

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tutes what we should have said if we had done as they wished for what we actually did say), so here in my Department the civil servants are always putting in what they think I should have said and not what I actually decided’ (1975: 88–105). Crossman opened a floodgate of criticism, and it has not abated. As for the political right, it had long believed that the bureaucracy has been subverting its policy objectives all along. Crossman’s Diaries of a Cabinet Minister spoke of his exasperation with a bureaucratic machine that took on a life of its own, like an uncontrollable monster. The diaries gave rise to the popular BBC television series Yes, Minister, which attracted some nine million regular viewers in Britain and became the favourite program of the permanent secretaries. The series also gained a worldwide audience and became highly popular with some politicians and civil servants in Canada, the United States, and Australia. The not-so-subtle message was that public servants were running the country and that the Sir Humphreys of the bureaucratic world wielded considerable power. The series actually served to give credence to bureaucrat ‘bashing.’ A new breed of politicians who believed that non-elected officials had become too powerful in shaping policy began to surface, claiming that the proper role of civil servants should be to implement policy decisions and manage government resources more efficiently. The new political leadership wanted to have partisan policy advisers on the public payroll and pollsters interacting with party strategists – to render obsolete the Sir Humphrey style of making policy (Hood, 1990: 206). Canadian politicians from both the right and the left became critical of bureaucracy by the 1970s. The right-of-centre Progressive Conservative party had long been suspicious of the public service, and its suspicions turned to public criticism after Joe Clark’s government lost a confidence motion in Parliament in 1979 after only a few months in power. They lost the subsequent election, and Flora MacDonald, minister of external affairs in the short-lived government, went on the lecture circuit to denounce senior public servants, claiming that they employed clever ruses to push their own agendas and to circumvent cabinet and ministerial direction. She itemized what she termed the officials’ entrapment devices for ministers, which included bogus options and delayed recommendations. Joe Clark himself became critical of the public service and spoke of misguided programs ‘concocted by a small group of theorists’ within the public service (MacDonald, 1980: 29–31; Simpson, 1980: 119–20).

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That Progressive Conservatives would be critical of the public service surprised few people. It was, however, a different story to find the centre-left Liberal party also doing so. The Liberal party, which held office for some forty-six of the fifty years between 1930 and 1980, had a particularly close working relationship with the public service. They had together built Canada’s welfare state, and by the 1970s some observers were noting an incestuous relationship between ruling Liberals and senior civil servants. It therefore surprised more than a few people when the deputy prime minister, Allan MacEachen, reported that if Liberals had learned anything during their brief stay in opposition (1979–80) it was that they would no longer rely so much on the advice of civil servants. Other senior Liberals joined in and publicly criticized the policy advisory and management capacities of public servants and argued that they were no longer in charge (for example, Savoie, 1990: chap. 9). Paul Martin organized training sessions for newly appointed members of his cabinet shortly after the swearing-in ceremony in December 2003. One important reason was to ensure that ministers would not become captives of the bureaucracy.1 Martin only had to consult former practitioners to see that ministers needed advice in dealing with their civil servants. Mitchell Sharp, a former deputy minister and later senior minister in both the Pearson and Trudeau governments, observed that ‘top public servants are powerful persons in the machinery of government at the federal level. They wield great influence. They do so because they are, in the main, professionals who have been selected for their proven administrative ability and who devote their full time to government. In many cases, they have a greater influence upon the course of events than have ministers, particularly the weaker and less competent’ (1981: 43–4). Robert Stanfield, former leader of the opposition, argued that ‘while the House of Commons has been losing control, so has the Government. The ministers just do not have the time to run such a vast show and make such a vast range of decisions. Consequently, more and more is for all practical purposes being decided by and implemented by the bureaucracy’ (quoted in Kernaghan and Siegel, 1987: 267). The public administration literature has also long acknowledged the influence of career officials on both policy and administration. Every textbook published in public administration since the early 1980s deals with the influence of career officials in shaping public policy and delivering government services. Even Max Weber, who sang the praises of the bureaucratic model, identified the problem at the turn of the last

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century when he observed: ‘The political master finds himself in the position of the dilettante who stands opposite the expert, facing the trained official who stands within the management of administration’ (quoted in Gerth and Mills, 1946: 228). Today, students of government recognize the influence, if not the power, of the bureaucracy and some report that the civil service projects ‘an image of autonomous powers, more important than the powers of political and participative organs in determining the behaviour of the state and the course of public affairs’ (Wilson, 1981: 49). Those outside government have also come to recognize the influence of career officials. Lobbyists in Ottawa spend more time working with civil servants than with politicians and access to deputy ministers today is viewed as important as securing access to ministers. Harrison McCain, former head of the McCain Frozen Food empire, for one, preferred working with deputy ministers. He explained why: ‘Half of the politicians I have worked with are buffoons and the other half do not stay in place long enough to see a deal through’ (2001). People such as Harrison McCain who are anxious to get things done quickly have learned to turn to deputy ministers to get results. Deputy ministers, as Hodgetts pointed out, occupy a ‘curious halfway house’ (1973: 208). They are part of the permanent hierarchy of the public service, but they are also in a constitutional sense the alter ego of the minister. They are half in the political world and half in the public service, sandwiched between the neutral civil service and the partisan political ministers. It is, in the words of Al Johnson, a relationship that is full of paradoxes (1961: 364). Deputy ministers serve ministers, but they are appointed by the prime minister - just one of many paradoxes. They must have a full appreciation of the dimensions in which the minister operates - elections; public opinion; question period, where a minister’s career can be undone; and the media, where one lets down one’s guard at one’s peril. In short, the debate is no longer about whether career officials have considerable influence; rather, it now centres around what should be done about it. Some insist that this should be expected in a modern economy and society and that bureaucracy remains a positive force (for example, Goodsell, 1983). Others argue that ministerial offices should be strengthened considerably as a counterweight to the civil service. Still others maintain that public consultative arrangements should be put in place in planning any major policy initiatives. There is also a whole body of literature on representative bureau-

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cracy. The thinking behind much of the literature is that the civil service should be democratized by ensuring that it represents the major social groups in proportion to each group’s numerical size within society.2 If ministers are losing power or influence to career officials then it is important to ensure that civil servants are not drawn from one class, one ethnic group and, in the case of Canada at least, from one linguistic group. It is important to note, however, that from the very beginning some students of government have challenged the merits of representative bureaucracy. They maintain that there is no assurance that persons continue to hold the same views or values as they grow older or after having worked in government for, say, ten years. Bureaucracy has its own values and its own socialization processes that make it difficult for someone to continue to hold attitudes rooted in social origins (Meier and Nigro, 1976: 458–69). One can also assume that the position one holds in the civil service will have a strong impact on how closely and how long the civil servant will identify with his or her social group. An Aboriginal working with Aboriginal groups in a local office of the Department of Indian and Northern Affairs in Saskatchewan will likely identify a great deal more with his or her social group than if he or she had worked in a central agency in Ottawa for the past ten years. There is an old saying within the federal civil service: ‘Where one stands on policy depends on where one sits.’ That is, if one works in the Department of Finance, one will likely have very different views from if one works in Human Resources Development or in the Department of Indian and Northern Affairs. The Canadian civil service has, over the years, initiated a number of affirmative action programs to hire more francophones, more women, Aboriginals, members of visible minorities, and persons with disabilities. The Employment Equity Act does not set quotas, but it does refer to numerical goals to be achieved through reasonable progress. Some efforts may have been made in the past to have the civil service reflect Canada’s regional composition, but these have never enjoyed the same degree of visibility or commitment as other affirmative action initiatives. Unless one equates francophone civil servants and Quebec, and clearly one should not, the government of Canada has never publicly stated its intention to hire career officials on the basis of regions. The Canada West Foundation recently tabled an action plan to address Western discontent and argued that it is more difficult to determine the ‘regional composition of staff ... [than] linguistic, gender or visible

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minority composition [since] regional identities are often very fluid in a country where people move around a great deal.’ The foundation, however, urged Ottawa to undertake a ‘restricted’ review of the regional composition of staff of a ‘small handful of horizontal central agencies that have a uniquely important role to play in ensuring that regional perspectives and interests are brought into play in the design of national policy’ (Anonymous, 2003). Dealing with the Regions Canadian politics is, by definition, bottom-up, with all voters having one vote. Its boundaries are defined by geography, by a constituency with community and regional interests to promote. All politicians, particularly in Canada, view things through regional or territorial lenses and look to the democratic process for guidance and a verdict on their performance. One runs for Parliament by securing the party’s nomination. Once nominated, candidates must quickly learn party discipline and toe the party line on policy issues. The leader’s office tells them that their views can be interpreted as their party’s and if they are too provocative or controversial they can come to the media’s attention – never a good thing. They could embarrass the party leader, place him or her on the defensive, and hurt the party’s chances at election time. But they also get a helping hand. They receive briefing books containing tips on running an election campaign and talking points for selling their party’s electoral platform. One Liberal candidate comments: ‘When I ran for the nomination it was just myself and one or two others. Now we have a whole team with the national party providing us with all the materials we need. I don’t have to spend any time organizing, which would be inefficient. I go into the office, the canvassing chair has materials ready and has organized the riding into areas of electoral importance (quoted in Docherty, 1997: 75). Local candidates do not have much say in putting together their party’s electoral platform. Pollsters, advertising and marketing specialists, close associates of the party leader, and a handful of senior party activists, all working closely with the leader, produce the national platform and retain a central role in the campaign organization and running of the national campaign. This is true even of the governing Liberals, notwithstanding a strong caucus and cabinet ministers from which to draw ideas. Reg Whitaker explains: ‘Neither Cabinet ministers

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nor the grass roots matter as much as they once did. National campaigns are poll and media-driven as never before’ (2000: 19). Party discipline matters in Canada as it does in any parliamentary system based on the Westminster model. The prime minister, his advisers, and senior ministers would much sooner see government MPs leave serious policy work to them. It is their turf. They regard policy not only as complex but as filled with potential regional, interdepartmental, and political pitfalls. Unless one can connect all the dots and ensure that the finer points of policy requirements are met, a crisis may well be in the making. Government MPs have access to resources, but with limits, particularly vis-à-vis expertise in departments. Public servants are uneasy about sharing their policy work with MPs, even when their ministers ask them to do so. MPs may run off with information prematurely to score political points, and information may be misinterpreted outside. There are also no rewards for career officials engaging MPs in policy work. The risks are even greater when it comes to opposition MPs. Career officials know that their ministers would not like their officials to share policy work before it becomes public. The adversarial nature of politics affects the public service, even though officials assiduously distance themselves from politics. C.E.S. Franks does not mince words: ‘In the question of the formation of policy and legislation ... the member of parliament (i.e., both government and opposition) is virtually excluded from the process ... There are two separate worlds in the public service, cabinet, central agencies, and their contacts with interest groups.’ He adds that ‘senior public servants in Canada tend to relegate MPs to the periphery of the policy-making world more so than those in Italy, Germany, the United States, or the United Kingdom’ (1987: 145). Government MPs sing from the policy hymn book given to them by the government. Opposition MPs use the book provided by the party’s last electoral platform, particularly for issues that have grabbed the media’s attention or that will enable them to score political points. Government MPs will usually harbour any political capital they have to promote their own constituency, province, and region. First, a regional caucus encourages them to look at government policies and programs from a regional or territorial perspective. Second, an MP’s efforts on behalf of his or her constituency takes place away from the media, are usually non-threatening, and are often one-on-one (an MP and the relevant minister or career official). But the prime minister and his or her office will monitor the situation very carefully to ensure that re-

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gional tensions do not surface in the media. Opposition MPs are relatively free to voice regional concerns but their influence on government policies and programs are, for obvious reasons, modest. Regionalism in Ottawa is thus sustained by its political constituency. As is well known, the Senate should, as one of its main roles, promote regional interests. However, as Donald V. Smiley and Ron Watts pointed out, ‘many believe that the Senate is inherently and irretrievably incapable of performing this role effectively because its members are appointed by the Governor-in-Council, in effect by the prime minister’ (1985: 118). A better-informed Canadian public no longer harbours any hope that the Senate, as currently constituted, can ever have much of an impact in articulating regional interests. Any illusion that the Canadian Senate has any legitimate role in this respect was recently put to rest when the federal government decreed in its Clarity Bill that ‘the Commons would have the final word on whether any referendum question on Quebec sovereignty passed the clarity test’ (Fife, 2000: A1). The prime minister and cabinet have emerged within the federal government as the locus for accommodating powerful and often times conflicting regional interests. As is well known, there is a long-standing tradition that each province is entitled to one cabinet post and the larger provinces more than one. If a province should not elect someone from the governing party, then tradition suggests that the prime minister will turn to the Senate to find a cabinet member to represent the province. Ministers responsible for a region or a province will take the lead in articulating regional interests but they have limited resources to assist them. The region, the province, the provincial premier, the provincial or regional caucus, the local business community will all talk to the regional minister to present their case within the federal government. It is expected that the regional minister in turn will present the case to the prime minister or to the relevant minister. The regional minister has standing within cabinet and in the eyes of the prime minister, but he or she has precious little administrative support. Regional ministers may be given one or two more partisan political assistants in their immediate offices but little else to support their regional responsibilities. The civil service provides little in the way of policy or administrative support to regional ministers. Ministers are busy people and, as Richard French once observed, ministerial time is one of the rarest commodities in Ottawa (1984: 43). Ministers, independently of the portfolio they may hold, put in extremely long hours, especially when Parliament is sitting. One only

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needs to take a brief look at their weekly agenda to appreciate this. Nor does the agenda chronicle all that ministers do in the course of a week. There are always last-minute meetings to be arranged, telephone calls to return (often in the evenings), correspondence to deal with, documents to read, and so on. As two students of politics wrote over twentyfive years ago, politicians ‘miss meals, neglect children, and lose sleep for politics. For them, politics is a central, vibrant and continuing preoccupation. Formal statements of purpose cannot adequately account for their involvement’ (Payne and Woshinsky, 1972: 519). A former clerk of the Privy Council and secretary to the cabinet, Gordon Osbaldeston, once issued a warning to cabinet ministers that ‘having many roles, you will be under constant and unremitting pressure to allocate some of your time to this or that worthy endeavour. [Ministers] must establish priorities and the time frame within which they want to accomplish them and allocate their time accordingly. If they don’t do this, and do it well, they will be lost.’ He added that ministers work between seventy and eighty hours a week, but that ‘surveys indicate that they often have only three hours a week to spend with their Deputy Ministers’ (1988: 2, 4). Through all these demands on their time, ministers must look after regional interests. However, as Hodgetts pointed out some twenty-five years ago, ‘regionalism is not part of the demand inputs of the system, but is a creation of the political system itself’ (1977: 287). That is, government departments are mostly organized along sectoral lines (for example, Agriculture and Agrifood Canada and Industry Canada), client groups (Indian and Northern Affairs or Canadian Heritage) while central agencies are organized to respond to demands from sectoral departments (the Privy Council Office, Finance, and Treasury Board Secretariat). Donald Gow believed that the unresponsiveness of the federal government to regional interests had a great deal to do with the way the government is organized. Departments generate demands on policy and resources based on their responsibilities for sectors or clients. Gow explains: Unless a minister was very clever, the problems which got identified and had their ‘issues’ stated were those within the department’s own frame of reference. Since the frames of reference of normal departments are drawn on the basis of industries or social categories, those problems which come up within a regional or cultural context are ignored, or are not seen clearly.

Intrastate Federalism and the Civil Service 77 With an eye to the integrity of their ‘little society’ almost any bureaucracy will resist answers to cultural and regional problems which may involve loss of functions. (1967)

Thus, proposals or advice that bubble up from departments and agencies to ministers and central agencies have a sectoral, a national, or client-specific perspective, rarely a regional one. A national perspective, however, means different things to different regions. For Atlantic Canada, ‘national perspective’ is a code phrase for the regional interests of Ontario and Quebec. More specifically, any issue affecting Ontario and Quebec is inevitably regarded in Ottawa as a national concern, requiring the close attention of the national government. The same is not true for the Maritimes. An example makes this point clear. The Supreme Court decision in the Marshall case, which gave broad fishing rights to the Micmac nation, had far-reaching political and economic consequences in the Maritimes. For some unexplained reason, Atlantic Canada’s representative on the Supreme Court did not participate in the Marshall decision. One can hardly imagine a case before the Supreme Court involving one of Ontario’s key economic sectors, such as, the automotive or financial services sector, which would not have all of Ontario’s representatives on the court participate in the decision. In addition, by all accounts, the government of Canada had no contingency plan in place to deal with any political fallout resulting from the Marshall decision. Contrast this to the federal government’s setting up a special ad hoc unit in the Privy Council Office to deal with any political fallout at the time the Supreme Court tabled its decision on the Quebec referendum. Yet Ottawa has jurisdiction over both the fisheries and Aboriginal affairs. The fact that Ontario and Quebec dominate the House of Commons and, by ricochet, the Prime Minister’s Office and cabinet, and that the Senate does not play a credible role in promoting regional interests strengthens the view that national perspective equates the interest of Ontario and Quebec. Tom Kent, former principal secretary to Prime Minister Pearson and later a senior deputy minister, has commented that promoting a regional perspective in Ottawa is like pulling against gravity. About federal regional development policy, he said: ‘From the point of view of almost all conventional wisdom in Ottawa, the idea of regional development was a rather improper one that some otherwise quite reasonable politician brought in like a baby on a doorstep from an election campaign’ (Canada, 1973: 24).

78 Donald J. Savoie

It is not uncommon to see ministers fight it out in cabinet on behalf of their regions. It is unusual, however, to see senior public servants drawing battle lines over regional issues. They are much more likely to disagree on sectoral matters, on whether or not the government should intervene in a given situation, and on the program interests of their departments, as opposed to those of other departments. In any event, economists in Ottawa are like most economists; they have a prejudice against regional policy on the grounds that such policies compromise efficiency in resource allocations (Husband, 1971: 548). Senior career officials consider that regional tensions should be managed inside government; if they surface at the political level then this is a failure of the system. It will be recalled that in the early 1980s, for example, the minister of Regional Expansion (DREE), Pierre De Bané, and Industry Trade and Commerce (IT&C) minister Herb Gray exchanged strong words in public over Volkswagen’s decision to locate a new parts plant in Barrie, Ontario, in order to take advantage of Ottawa’s duty remission program, under which the duty on automobile imports was waived if a company established a plant in Canada (Anonymous, 1982: 1). At De Bané’s urging, a delegation of federal officials was sent to Germany to meet with Volkswagen. DREE selected two sites, Montreal and Halifax, and offered a cash grant to Volkswagen to locate in either one. The company rejected the one-time grant, arguing that it would need a yearly operating grant to compensate for the fact that parts suppliers were located mainly in southern Ontario. De Bané suggested that the federal government should refuse the duty remission for Volkswagen if the company pressed ahead with its Barrie location rather than a DREE-designated region. If regional development were to be effective, De Bané had said many times, it requires many instruments. One of them clearly was the duty remission program, but applied from a regional perspective. Herb Gray rejected De Bané’s argument. DREE was disbanded on 12 January 1983 in a government reorganization and subsumed within IT&C. Shortly after the reorganization was announced, a Privy Council Office official declared that under the new structure public debates such as that between De Bané and Gray could not take place today. He explained: ‘It will never happen again ... the Department of Regional Economic Expansion had its own ideas on VW and Industry Trade and Commerce had different ideas. There was a lot of squabbling. Now that they’re together, they’ll have to resolve their differences internally and then go to cabinet’ (Anonymous, 1982: 1).

Intrastate Federalism and the Civil Service 79

The point here is not whether national or even regional considerations should decide the location of a Volkswagen parts plant. Rather, it is that, with the reorganization, there was no longer a regional voice at the cabinet table, assisted by a government department with a clear regional mandate. The new organization meant that the minister of industry would be henceforth responsible for regional economic expansion. For civil servants, it is much easier to manage regional issues when they remain within the bureaucracy and when they are not promoted by a government department working with its own minister. That is the way the civil service prefers things. Regional tensions are often messy, difficult to manage, and politically explosive. Civil servants will instinctively protect their ministers. Their loyalty is to the government of the day and they will go to great lengths to avoid placing their ministers and the government in a politically embarrassing situation. One senior Privy Council Office official summed up his job as the ‘ability to fall on hand grenades’ to ensure that politically explosive situations do not become public (Savoie, 1999: 129). Regional interests constitute a minefield of potential political problems, in part because they often pit one region against another and also because government departments and agencies are, with only a few modest exceptions, not organized along regional lines.3 In brief, the machinery of government in Ottawa is designed to manage economic and social sectors and client groups, not regions. Moreover, much of the machinery that matters – central agencies, senior civil servants, and the policy advisory capacity – is located in Ottawa. Civil Servants In December of 2003, the author consulted the Privy Council Office (PCO) and the web sites of twenty-nine government departments to determine the region of birth of deputy ministers and where they obtained their first university degree, as well as to establish who works in Ottawa and who works in the regions. We did not survey associate deputy ministers or other senior officials whom PCO does not consider to be members of the deputy minister community. Nine of the twenty-nine deputy ministers we surveyed were born in the province of Quebec, eleven in Ontario, five in Western Canada, two in Atlantic Canada, and two abroad. Eighteen received their first university degree in Ontario, four in Western Canada, three in Quebec, two in Atlantic Canada, and one abroad. We were not able to

80 Donald J. Savoie

establish whether or where one deputy minister obtained a university degree. Ontario, the largest province with a particularly strong presence in the House of Commons and in cabinet, also dominates the upper echelon of the Canadian public service. We saw earlier that where one stands on policy depends on where one sits. The Canadian civil service has offices in many communities and in all provinces and regions. So where do federal civil servants actually sit? Table 1 below reports on the location of work of federal civil servants, by province. The findings are presented on a yearly basis starting with 1996, the year after the Chrétien-Martin program review was launched, up to 2003. The attempt to secure reliable data on federal government employment by census metropolitan area was unsuccessful because the data did not square with provincial breakdown presented in table 1. That said, the data suggest that the number of federal public servants in Ottawa-Gatineau went from 93,640 in 1996 to 112,234 in 2003 (an increase of 18,594). This compares with a decrease in St. John’s of 226 during the same period (from 4,631 to 4,405), a decrease in Halifax of 920 (from 17,448 to 16,528), an increase of 3,334 in Montreal (from 23,210 to 26,544), an increase of 2,447 in Toronto (from 19,724 to 22,171), and an increase of 499 in Calgary (from 6,049 to 6,548) (Statistics Canada, 2004). Table 1 reveals that Ontario added 13,353 federal civil servants between 1996 and 2003. This compares with a gain of 2,316 for Quebec during the same period, a loss of 1,517 for Newfoundland and Labrador, a loss of 346 for Manitoba, a loss of 339 for British Columbia, a loss of 853 for Saskatchewan, and a gain of 344 for Alberta. Ontario was home to 42.8 per cent of federal civil servants in 2003, Quebec 21.2 per cent, Atlantic Canada 13 per cent and Western Canada 22.5 per cent (see table 2). Ontario represented 38 per cent of Canada’s population in 2001 while Quebec had 24.1 per cent, Atlantic Canada 7.6 per cent, and Western Canada 29.9 per cent (see table 3). Numbers only tell part of the story. For the most part, civil servants operating in local and regional offices deliver government programs and services, but they do not play much of a policy advisory role. Line departments and agencies have regional operations to manage and services to deliver, but central agencies do not. In addition, the senior executive (EX) category is largely concentrated in Ottawa. Deputy ministers (with four exceptions) are all located in Ottawa and even the four located outside of Ottawa do not spend a great deal of time away from Ottawa. One senior Treasury Board Secretariat official reports that ‘now

TABLE 1 Employment in Federal General Government (excluding uniformed RCMP), Annual Averages for 1996–2003

1996 Newfoundland & Labrador Prince Edward Island Nova Scotia New Brunswick Quebec Ontario Manitoba Saskatchewan Alberta British Columbia Yukon Northwest Territories Nunavut Outside Canada

1997

1998

1999

2000

2001

2002

2003*

% change 1996– 2003

8,077

7,124

6,555

6,320

6,495

6,446

6,451

6,560

–18.8

2,941 24,902 12,664 70,987 134,959 15,416 8,433 23,614 31,222 869

2,994 23,907 11,797 67,722 128,160 13,962 7,868 22,513 29,309 708

2,997 22,799 11,850 65,643 126,997 13,584 7,745 22,185 28,563 667

3,023 22,260 12,171 66,037 127,713 13,937 7,578 22,164 28,487 675

3,234 21,918 12,472 68,069 132,093 14,506 7,622 22,629 29,176 695

3,441 21,832 12,375 69,961 136,791 15,140 7,623 23,187 30,230 697

3,440 22,177 12,485 72,935 143,069 14,671 7,576 23,652 30,883 721

3,414 22,521 12,633 73,303 148,312 15,070 7,580 23,958 31,176 531

16.1 –9.6 –0.2 3.3 9.9 –2.2 –10.1 1.5 –0.1 –38.9

956 0 3,097

876 0 3,003

858 0 2,905

854 79 2,969

866 146 3,105

888 229 2,998

906 258 3,016

938 251 3,110

–1.9

Total – Canada + Outside 338,137

319,943

313,348

314,267

323,026

331,838

342,240

349,357

3.3

Total – Canada only

316,940

310,443

311,298

319,921

328,840

339,224

346,247

3.3

335,040

Source: Statistics Canada, 2004. *Average for 2003 is based on data from January to September.

0.4

TABLE 2 Employment in Federal General Government (excluding uniformed RCMP), Annual Average Percentages for 1996–2003

Newfoundland & Labrador Prince Edward Island Nova Scotia New Brunswick Quebec Ontario Manitoba Saskatchewan Alberta British Columbia Yukon Northwest Territories Nunavut

1996

1997

1998

1999

2000

2001

2002

2003*

2.4 0.9 7.4 3.8 21.2 40.3 4.6 2.5 7.0 9.3 0.3 0.3 0.0

2.2 0.9 7.5 3.7 21.4 40.4 4.4 2.5 7.1 9.2 0.2 0.3 0.0

2.1 1.0 7.3 3.8 21.1 40.9 4.4 2.5 7.1 9.2 0.2 0.3 0.0

2.0 1.0 7.2 3.9 21.2 41.0 4.5 2.4 7.1 9.2 0.2 0.3 0.0

2.0 1.0 6.9 3.9 21.3 41.3 4.5 2.4 7.1 9.1 0.2 0.3 0.0

2.0 1.0 6.6 3.8 21.3 41.6 4.6 2.3 7.1 9.2 0.2 0.3 0.1

1.9 1.0 6.5 3.7 21.5 42.2 4.3 2.2 7.0 9.1 0.2 0.3 0.1

1.9 1.0 6.5 3.6 21.2 42.8 4.4 2.2 6.9 9.0 0.2 0.3 0.1

Source: Statistics Canada, 2004. ‘Public Sector Employment, Wages and Salaries,’ Cansim II, table 183-0002. Special Order; compiled by the author. * Average for 2003 is based on data from January to September

Intrastate Federalism and the Civil Service 83 TABLE 3 Population Count for Canada, Provinces, and Territories, 1996 and 2001 1996 No.

%

2001 No.

%

Newfoundland & Labrador Prince Edward Island Nova Scotia New Brunswick Quebec Ontario Manitoba Saskatchewan Alberta British Columbia Yukon Northwest Territories Nunavut

551,792 134,557 909,282 738,133 7,138,795 10,753,573 1,113,898 990,237 2,696,826 3,724,500 30,766 39,672 24,730

1.9 0.5 3.2 2.6 24.7 37.3 3.9 3.4 9.3 12.9 0.1 0.1 0.1

512,930 135,294 908,007 729,498 7,237,479 11,410,046 1,119,583 978,933 2,974,807 3,907,738 28,674 37,360 26,745

1.7 0.5 3.0 2.4 24.1 38.0 3.7 3.3 9.9 13.0 0.1 0.1 0.1

Canada

28,846,761

100.0

30,007,094

100.0

Source: Statistics Canada, 1996 and 2001. ‘Population and Dwelling Counts for Canada, Provinces, and Territories.’ 1996 and 2001 Censuses.

over 70 per cent of the Executive category is located in Ottawa.’ He adds that this trend can be traced back to the program review exercise of the mid-1990s (Anonymous, 2004). Moreover, an important part of the policy work of the federal government continues to be contracted out to consultants and policy research groups. This is even true of the preparation of cabinet documents, something that would have been unthinkable forty years ago (Savoie, 2003: chap. 9). The great majority of consultants and think tanks advising the federal government are located in Ottawa, not in the regions. Both the United States and Australia have elected senates that are able to give life and credibility to a regional voice at the centre of government. As noted above, Canadian MPs have only a modest influence on government policies and programs. Accordingly, while there is probably less of a need to have the civil service speak to regional circumstances and interests in both the United States and Australia, given their elected Senate, there is a greater need for such a role in Canada. In the case of the United States, over 80 per cent of all federal civil servants (non-military) are located outside of the District of Columbia, Virginia, and Maryland (United States Government, 2002). In

84 Donald J. Savoie

Australia, some 67 per cent of all federal civil servants are located outside Canberra (Australian Public Service, 2002–03: 7). One senior Treasury Board official reports that the percentage of federal civil servants located in Ottawa has gone up in recent years and that it is now close to 40 per cent (Anonymous, 2004). Revisiting Intrastate Federalism There is great reluctance on the part of Canada’s political elite to look to the constitution to find new ways to accommodate regional interests. Paul Martin, for example, bluntly stated that he had no intention of entering into constitutional discussions to reform the Senate (Martin, 2003). Provincial premiers meanwhile established a Council of the Federation on 5 December 2003 and gave it the mandate to ‘analyse actions or measures of the federal government that in the opinion of the members have a major impact on provinces and territories’ (Council of the Federation, 2003: 3). This is the proper role of a second chamber in a federation. One can easily speculate that the council will have limited influence with the federal government because it will always be on the outside looking in and because it is unlikely to have the necessary resources to assemble the requisite knowledge to mount an effective case. Canada’s search for a venue that will give life and credibility to a regional voice in Ottawa has largely overlooked the civil service as a possibility. Only recently have such groups as the Canada West Foundation suggested such a role. The foundation argues: ‘What is needed is greater policy capacity on the part of the federal government to understand and respond to regional peculiarities. This capacity must be both political (achieved through parliamentary reforms) and bureaucratic’ (Anonymous, 2003: 12). In the absence of constitutional reform, the onus for accommodating regional interests in national policy-making will continue to be on the executive. Accordingly, to be effective, much will depend on ‘the degree to which the Cabinet is able to embody and express intrastate federalism in its composition, its decision-making processes and its political and administrative roles’ (Smiley and Watts, 1985: 155). The balance of influence between the political and the bureaucratic is never static – it fluctuates due to numerous forces. That said, the civil service has gained considerable influence in recent years in networking with interest groups, in shaping public policies and in delivering government programs and services. It is possible to restructure the civil service, to strengthen its presence

Intrastate Federalism and the Civil Service 85

and capacity in the regions without reference to the constitution or to Parliament. There is no reason why the federal government could not reform its machinery of government and in particular restructure its central agencies so that an important part of this capacity is located in the regions. This would enable the executive to understand and respond better to regional peculiarities. The only thing that is required is an acknowledgment that the status quo is not able to do this and a good dose of political will to introduce change. Canada’s political elites need to recognize the important policy advisory and program delivery roles of civil servants and to recognize that civil servants are not without policy and regional biases. We impose language requirements before civil servants can be promoted to senior positions. Similarly, measures could be designed to ensure that civil servants get experience in the regions or outside the national capital region before they can become directors general, assistant deputy ministers, associate deputy ministers, and deputy ministers. But that would only be part of the solution. To have civil servants spend two years in a regional office before becoming an assistant deputy minister, for instance, would enhance Ottawa’s understanding of regional circumstances, but it would also have its limits. As the literature on representative bureaucracy suggests, bureaucracy has its own values and its own socialization processes that make it difficult for someone to hold attitudes or, as in this case, a regional sensitivity or perspective over time. The above suggests that the federal government should reconsider its policy advisory capacity so as to bring regional circumstances to the centre of its policy-making process. Given modern means of communications, there is no reason why central agencies and line departments could not locate half of the policy advisory capacity in the regions. This new regional policy capacity could develop and articulate a regional perspective for central agencies and line departments to consider as they shape new policy initiatives. It could also assist ministers responsible for regions, commonly known as regional ministers in Ottawa, to present an informed regional or provincial perspective in cabinet deliberations. At present, the role of regional ministers is largely limited to partisan politics, political or project announcements and political patronage or government appointments. We know that Canada’s political institutions have a limited capacity to accommodate the regional factor. The Canadian Senate has never been able to speak on behalf of the regions with any degree of credibility. The House of Commons and, by ricochet, the cabinet have been and

86 Donald J. Savoie

continue to be largely preoccupied with the political and economic interests of Ontario and Quebec. Changing the machinery of government and, in particular, the federal bureaucracy, so that regional circumstances are better understood in Ottawa is only a partial solution. But it is an important step in the right direction. Thus, modifying the policy advisory and administrative machine offers some promise that regional circumstances and voices would be better articulated and heard at the centre of government.

NOTES 1 Comments made by several newly appointed cabinet ministers, CBC National News, 12 December 2003. 2 For an earlier work on representative bureaucracy, see J. Donald Kingsley, Representative Bureaucracy: An Interpretation of the British Civil Service (Yellow Springs, Ohio: Antioch Press, 1944). 3 The exceptions are the Atlantic Canada Opportunities Agency (ACOA), Western Diversification, and Développement Économique, Québec.

REFERENCES Anonymous. 2003. ‘An Action Plan to Address Western Discontent.’ The Alert in Canada. Calgary: Canada West Foundation, 9 September. Anonymous. 1982. ‘Bickering Over Car Plant Led to Cabinet Shake-up.’ Sunday Star. Toronto, 17 January. Anonymous. 2004. Consultation with a Senior Treasury Board Secretariat Official. Ottawa. 30 January. Australian Public Service. 2002–03. ‘Statistical Bulletin.’ Canberra: Public Service and Merit Protection Commission: 7. Bryce, Robert B. 1986. Maturing in Hard Times. Montreal: McGill-Queen’s University Press. Buckner, Philip A. 1993. ‘The 1870s: Political Integration.’ In The Atlantic Provinces in Confederation, ed. E.R. Forbes and D.A. Muise. Toronto: University of Toronto Press. Canada. 1973. Proceedings of the Standing Senate Committee on National Finance. 22 March. Council of the Federation. 2003. ‘Founding Agreement.’ Gouvernement du Québec, provided by Claude Longpré. Cabinet du ministre délégué aux Affaires Autochtones.

Intrastate Federalism and the Civil Service 87 Crossman, Richard. 1975. The Diaries of a Cabinet Minister, volume 1. London: Hamilton and Cape: 88–105. Docherty, David C. 1997. Mr. Smith Goes to Ottawa: Life in the House of Commons. Vancouver: University British Columbia Press. Fife, Robert. 2000. ‘PM Aims to Silence Senate on Clarity.’ National Post, 3 March. Franks, C.E.S. 1987. The Parliament of Canada. Toronto: University of Toronto Press. French, Richard D. 1990. ‘The Future of Federal-Provincial Relations ... If Any.’ Paper presented to the Institute of Public Administration of Canada, National Capital Region, 14 June. – 1984. How Ottawa Decides: Planning and Industrial Policy-Making 1968– 1984.Toronto: James Lorimer. Gerth, H.H. and C. Wright Mills. 1946. From Max Weber. New York: Oxford University Press. Goodsell, Charles T. 1983. The Case for Bureaucracy: A Public Administration Polemic. Chatham, NJ: Chatham House. Gow, Donald. 1967. ‘Canadian Federal Administrative and Political Institutions.’ Ph.D. dissertation: Kingston, Queen’s University. Hodgetts, J.E. 1955. Pioneer Public Service: An Administrative History of the United Canadas, 1841–67.Toronto: University of Toronto Press. – 1973. The Canadian Public Service: A Physiology of Government, 1867–1970. Toronto: Toronto University Press. – 1977. ‘Regional Interests and Policy in a Federal Structure.’ In Canadian Federalism: Myth or Reality, 3rd ed., ed. J. Peter Meekison. Toronto: Methuen. Hood, Christopher. 1990. ‘De-Sir Humphreying the Westminster Model of Bureaucracy: A New Style of Governance.’ Governance 3, no. 2. Husband, D.D. 1971. ‘National versus Regional Growth: Some Issues.’ Canadian Public Administration 14, no. 1. Johnson, Al. 1961. ‘The Role of the Deputy Minister.’ Canadian Public Administration 4, no. 4. Kernaghan, Kenneth, and David Siegel. 1987. Public Administration in Canada. Toronto: Methuen. Lazar, Harvey, and Tom McIntosh, eds., 1999. Canada: The State of the Federation 1997 Non-Constitutional Renewal. Kingston and Montreal: McGill-Queen’s University Press. MacDonald, Flora. 1980. ‘The Minister and the Mandarins.’ Policy Options 1, no. 3: 29–31. Marshall, Geoffrey and Graeme C. Moodie. 1971. Some Problems of the Constitution, 5th ed. London: Hutchinson University Library. Martin, Paul. 2003. ‘Year End Interview with Paul Martin.’ CBC, The National. 23 December.

88 Donald J. Savoie McCain, Harrison. 2001. Consultations. Florenceville, New Brunswick, 24 April. Meier, Kenneth J., and Lloyd C. Nigro. 1976. ‘Representative Bureaucracy and Public Preferences; A Study in the Attitudes of Federal Executives.’ Public Administration Review 36: 458–69. Osbaldeston, Gordon. 1988. ‘Dear Minister. A Letter to an Old Friend on Being a Successful Minister,’ notes for remarks to the Association of Professional Executives of the Public Service of Canada, Ottawa, 22 January: 2–4. Payne, James L., and Oliver H. Woshinsky. 1972. ‘Incentives for Political Participation.’ World Politics 24. Savoie, Donald J. 1990. The Politics of Public Spending in Canada. Toronto: University of Toronto Press. – 1999. Governing from the Centre: The Concentration of Power in Canadian Politics. Toronto: University of Toronto Press. – 2003. Breaking the Bargain: Public Servants, Ministers, and Parliament. Toronto: University of Toronto Press. Sharp, Mitchell. 1981. ‘The Role of the Mandarins.’ Policy Options 11. Simpson, Jeffrey. 1980. Discipline of Power. Toronto: Personal Library Publishers: 119–20. Smiley, Donald V., and Ronald L. Watts, 1985. ‘Intrastate Federalism in Canada.’ Ottawa: Royal Commission on the Economic Union and Development Prospects for Canada, vol. 39: 78–81. Statistics Canada. 2004. ‘Federal Government Employment, Wages and Salaries for Census Metropolitan Areas for the Month of September.’ Canism II, table 1830003, compiled by the author. Statistics Canada. 1996 and 2001. ‘Population and Dwelling Counts for Canada, Provinces, and Territories.’ 1996 and 2001 Censuses. Sutherland, Sharon. 1991. ‘Responsible Government and Ministerial Responsibility: Every Reform Is Its own Problem.’ Canadian Journal of Political Science 24, no. 1. United States Government. 2002. ‘Federal Government Finances and Employment.’ Statistical Abstract of the United States. United States Census Bureau, no. 474. Weber, Max. 1947. The Theory of Social and Economic Organization. New York: Oxford University Press. Whitaker, Reg. 2000. ‘Virtual Political Parties and the Decline of Democracy.’ Policy Options 22, no. 5. Wilson, Seymour V. 1981. Canadian Public Policy and Administration: Theory and Environment. Toronto: McGraw-Hill.

4 Declining Legitimacy and Canadian Federalism: An Examination of PolicyMaking in Agriculture and Biomedicine éric montpetit

The Canadian federation is often praised for its decentralized nature. Such decentralization, it is claimed, enables different provincial and regional communities to live peacefully under the same political system. David Smith showed how Canadian federalism, as shaped by the Crown, has combined with geography and migration patterns to enable the emergence of distinctive prairie and prairie-province communities. Decentralization, Smith (1988: 112) further claims, enables distinctive and superior patterns of policy-making. Autonomous decentralized governments can experiment at a relatively low cost and innovations can be diffused countrywide through collaborative arrangements often encouraged by the central government. David Smith (1995) argues that those ‘practical’ patterns of policy-making play an essential legitimizing role in a country where citizens identify with provincial communities first and foremost. Canadian federalism, Smith suggests, will be accepted by citizens to the extent that it solves policy problems. Is Canadian federalism really conducive to superior formulation of policies? To what extent can we say that recent evolutions in the Canadian federation contribute to improving or decreasing the capacity of policy-makers to resolve problems? Do these recent evolutions threaten the legitimacy of the Canadian federal system? These are the central questions I wish to address here. Because the federal government has recently changed its approach to policy-making, I argue that Canadian federalism is evolving in a direction that should raise worries. Moving away from executive federalism, thereby undermining intergovernmental ties, the federal government has recently sought to develop policies that directly target individual Canadians. Thus, public consultations and symbolic programs are used

90 Éric Montpetit

instrumentally to create a sense of belonging to the federal state. Instrumental federalism, I suggest, will be unlikely to achieve this goal. In addition, it reduces the capacity of the Canadian federal system to address problems in a practical fashion. Because Canadians expect federalism to produce superior policies, the system is likely to suffer from declining legitimacy. Democratic Legitimacy As Jane Mansbridge (2003: 525) suggests, when empirical political scientists ‘want to answer the question of how well a political system meets democratic norms,’ they need a normative theory of democratic legitimacy. Along these lines, I present one such normative view of what makes a political system democratically legitimate. I then assess the Canadian system from this view. Fritz Scharpf (1997) insists on a distinction between input- and output-oriented legitimacy. Input-orientated legitimacy relates to the process whereby the preferences of the citizens of a community are translated into public policy. As Scharpf (1999: 6) writes: ‘Political choices are legitimate if and because they reflect the “will of the people” – that is, if they can be derived from the authentic preferences of the members of a community.’ In contrast, output-oriented legitimacy derives from the effects of policy, that is the extent to which they address and resolve collective problems. As Scharpf (1997: 153) argues, ‘effective policies can claim legitimacy if they serve the common good.’ Both forms of legitimacy, although by no means completely mutually exclusive, involve different processes and institutions. The state has increasingly become organized in sectors, often segmented from each other. Likewise, the attention of citizens to state affairs has become increasingly selective, focusing on a limited number of sectors and issues. Citizens simply cannot feel concerned with the entire range of sectoral policies the modern state develops. They can only be informed about a limited number of sectors, if not about a limited set of issues within a sector. This organization of the modern state in sectors can be convenient from an input-oriented perspective on democracy. If citizens were all simultaneously concerned with all issues, every single decision would require policy-makers to listen to an unmanageable number of people. In modern states, only citizens who feel concerned with an issue had to be listened to and need to feel heard by policy-makers on this issue.

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This reasoning on input-oriented legitimacy in modern states implies some division of labour among citizens. As with any division of labour, this one functions better where participants (citizens) trust each other. Citizens who are involved over educational issues, for example, have to be listened to and feel heard in this sector, but they also have to be trusted and to trust their fellow citizens to do a good job in all the other sectors about which they do not feel as concerned. For this to occur, Offe (1999) argues, democratic institutions have to be more than just mechanisms to aggregate demands through the election of governments, they must also embed a number of values, among which are promisekeeping, truth-telling, and fairness. Promise-keeping is a central component of most democratic systems. Politicians make promises during electoral campaigns and legitimacy, one can argue, is conferred upon policy decisions to the extent they reflect those promises. Mansbridge (2003) has shown the extent to which this view of democratic legitimacy, as compelling as it may appear, is insufficient. Electors do not assess governments with an eye on the past election, but with an eye on the next. Representatives’ legitimacy, therefore, does not rest so much on what they have promised in the past as on their capacity to convince citizens that they can bring them to a place where they want to be. This, Mansbridge (2003: 517) argues, has significant policy-making implications: the focus of elected officials should not be on the implementation of their electoral program as much as on deliberation with actors, be they the media, interest groups, or opposition parties, who will challenge their preferences. As deliberative theory suggests, policy-makers in modern states must be capable of withstanding the test of the best argument (Bohman and Rehg, 1997). Deliberative processes are closely associated with Offe’s values of truth-telling and fairness. Once again, citizens are never simultaneously informed about various sectoral policy deliberations. They are, however, likely to trust that they occur if the country’s democratic institutions embed the values of truth-telling and fairness. Guaranteed by norms of transparency and critical examination, truth-telling prevents actors from cheating in the contest for the best argument. Equally important is fairness, or the possibility for every citizen to participate on an equal footing. The quality of deliberation, Mansbridge (2003: 519) suggests, depends on equality of ‘access to influence.’ Equality of access, of course, does not mean each and every citizen can participate in any deliberation, but it minimally requires that the process

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appears neutral, that is without a built-in bias against the representatives of a category of citizens (Offe, 1999: 74–5). When democratic institutions embody these values, ‘citizens recognize and trust each other as constituent participants of a republican political community’ (Offe, 1999: 76). In this last comment, Offe touches on an essential element of inputoriented legitimacy – namely, the presence of a strong community. Participation in fair and transparent policy-making deliberations alone does not generate input-oriented legitimacy. Participation also needs to provide citizens with a sense of belonging to a community. When this desire is absent, any participation is reduced to the exercise of ‘voice’ (Hirshman, 1970) – a strategic behaviour only aimed at influencing decisions in ways that satisfy the actor’s policy preferences. For actors content with exercising voice, participation in itself has no value, since they are only interested in the probability of influencing outputs. Other actors may want to participate because of a desire to contribute something to their community. Input-oriented legitimacy can only be conferred upon political systems in which actors are motivated by a desire to belong and not just to exercise voice. Hence, the presence of a strong community of reference for the political system is an essential element of input-oriented legitimacy. Precisely because of this, Scharpf (1997: 155) suggests that such legitimacy is increasingly difficult to generate in modern states with heterogeneous populations. In the absence of a strong trusting community he asks, ‘why a minority should be morally obliged to respect the policy choices of self-interested majorities?’ Input-oriented legitimacy, therefore, should pose a particular challenge to Canada, to the extent one views the country not as a community of faith, but as a community of claims. While citizens may want to belong to a community of faith, generally they are content with exercising voice in a community of claims. As Atkinson (1994: 743) explains, politics in Canada has increasingly become aggregative, employing processes that ‘encourage citizens to organize, persuade and threaten to obtain ... protection for their interests.’ As a consequence, ‘Overarching community covenants, the product of integrative processes, can no longer expect to survive a challenge from the aggregative politics of individual rights’ (ibid.: 742). To the extent several Canadians view the community of reference of the federal system only as a community of claims, possibilities to generate legitimacy through input-oriented processes are limited in comparison to several other countries.

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The difficulty to generate a sense of input-oriented legitimacy towards federal institutions in Canada is consequential. Even if federal institutions were to embody the three values identified by Offe, residents of prairie provinces are unlikely to feel morally obliged to abide by the decisions made by a majority of politicians representing central Canada. Likewise, francophones would not feel morally obliged to abide by decisions made by a majority of English-speaking politicians. Quoting W.L. Morton, David Smith writes: ‘Only in the provinces was the electorate homogeneous enough to allow the majority principle to work without reserve’ (1991: 461). Fellow provincial citizens trust each other to a larger extent than Canadians from one ocean to the other because they belong to provincial communities of faith and only to a federal community of claims. For Offe (1999: 76), a failure to build democratic institutions capable of providing citizens with a sense of belonging to a trustworthy community can ‘trigger regressive phenomena such as the switch from institutionally mediated to communal (e.g., ethnic and regionalist) forms of the mediation of trust.’ Because of this, he claims, Belgium and, to a lesser extent, Italy are on ‘the brink of breaking apart.’ How then can Canada, a country arguably even more deprived of the basic condition for input-oriented legitimation, survive? For Scharpf (1997), the difficulty of generating input-oriented legitimacy in modern states can be compensated for by output-oriented legitimacy. The idea of output-oriented legitimacy stems from the recognition that a moral obligation to a community is not a necessary condition for citizens to respect policy choices. Citizens may recognize a policy as legitimate to the extent that it serves their interest well, irrespective of whether they have participated in its formulation. In fact, in contrast to input-oriented legitimacy, output-oriented legitimacy can justify exclusion from policy-making as well as a relative lack of transparency. Specifically, output-oriented legitimacy in modern states normally is rooted in two distinctive policy-making processes: negotiated agreements and problem-solving. Negotiated agreements refer to the result of a negotiation among actors with distinctive policy preferences who strategically attempt to obtain their translation in public policy. Negotiated agreements will only translate into output-oriented legitimacy when they generate welfare-enhancing solutions, and to arrive at such solutions, they must ‘involve only those parties that have something to contribute that is of value to others’ (Scharpf, 1997: 146). Joined in an

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agreement, complementary resources and expertise can produce more for everyone than if they remained segregated. Even if such a negotiation is conducted behind closed doors and entails the exclusion of several actors, it will be recognized as legitimate because it accomplishes something widely beneficial. Exclusion, in fact, turns into an asset in negotiated agreements because it reduces transaction costs. While including actors who have something to contribute to others is indisputably beneficial, it also increases the prevalence of distributive conflicts whose resolution involves high transaction costs. When transaction costs are high, Scharpf argues, ‘negotiations will often fail altogether or will merely produce unsatisfactory compromises in which potential welfare gains are “left on the table”’ (ibid.). Problem-solving is the result of interactions among actors whose preferences are not as clear and whose behaviours are not as strategic as in negotiated agreements. When engaged in problem-solving, actors search for the best possible solution, irrespective of their initial preferences, in a deliberation understood as a test of the best arguments. Problem-solving is more likely to occur within constellations of actors relatively free of distributive conflicts (see Risse, 2000). Actor constellations capable of problem-solving are thus more exclusive than inclusive. But then again, to the extent such exclusive constellations are capable of finding solutions that policy-makers can convincingly present as serving the common good, citizens view them as legitimate (Öberg, 2002: 462-4). Output-oriented legitimacy generated by negotiated agreements and problem-solving explains Canada’s survival in the absence of a capacity to produce input-oriented legitimacy. This also is David Smith’s (1991: 467) explanation of the Canadian political arrangement: ‘The authority of Canada’s national government, from Confederation onwards, had rested in no pre-state arrangement or values (to the degree such existed, they were imperial in content), but in its success as a provider of goods and services.’ Executive Federalism and Democratic Legitimacy In the post–Second World War period, Canadian federalism rapidly evolved towards what Donald Smiley has called executive federalism and Richard Simeon federal-provincial diplomacy. These concepts characterize a pattern of policy-making whereby policy choices are made through negotiations and deliberations among the members of the executive branches of provincial and federal governments. Executive

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federalism emerged in Canada during a period of government expansion, when provincial and federal interventions increasingly overlapped, encouraging the organization of intergovernmental meetings to settle jurisdictional disputes or to join efforts in the formulation of policy. Because executive federalism in several sectors superseded the regular legislative process, it was criticized early on from an input-oriented perspective. Smiley (1987: 98) writes that executive federalism ‘contributes to secrecy in the governmental process and to the frustration of public debates about important aspects of our common affairs.’ Simeon (1972: 296) agrees, suggesting that to the extent an observer ‘prefers a system in which a majority will be elected and then govern with relatively few restrictions, the system is undemocratic.’ If one adds to this the observation that ‘the credentials of the political community as such are problematic’ (Smiley, 1987: 18), one has a complete explanation of the incapacity of executive federalism to inspire input-oriented legitimacy. Opportunities for participation in executive federalism are very limited; transparency is absent; participation is often reduced to the exercise of voice, as the actors engaged in negotiations and deliberations are primarily faithful to provincial communities. There is no doubt that executive federalism also faced important difficulties from an output-oriented legitimacy perspective. Several authors have blamed executive federalism for the absence of an effective industrial policy in Canada (Stevenson, 1995; Jenkin, 1983). Stephan Dupré (1988) has perhaps produced the most comprehensive study on the workability of executive federalism. His models of failure and success can easily be read in terms of transaction costs and inclusion of actors who have little to contribute to others. Trust ties between appointed officials of both orders of government, Dupré insists, are keys to welfare-enhancing intergovernmental relations. When officials share professional norms and a similar vocabulary, agreements on the nature of problems and their solutions can be achieved at lower transaction costs. Unfortunately, managerial change in the 1970s encouraged punctual intrusion by new central agents (notably from intergovernmental relations secretariats). These central agents are disconnected from sectoral history and knowledge and bring into discussions cross-cutting managerial concerns, especially in view of increasing control from the centre of their respective government (Rouillard, 2004). Unlike operational civil servants who are in constant contact with other actors in their sector, these central agents often have little to contribute to sectoral problems. Nevertheless, executive federal-

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ism, in itself, is by no mean deprived of a potential to inspire outputoriented legitimacy. In fact, Simeon was optimistic in the 1970s on output-oriented legitimacy. He argues that ‘given a decentralized federal system with strong provincial governments, it [federal-provincial diplomacy] is a valuable device for policy development. There is little evidence that it has frustrated widespread public demands in recent years’ (1972: 296). Public satisfaction with the practical side of policy, irrespective of whether or not participation in formulation was wide, is a key indication of outputoriented legitimacy. During the postwar period Canadians came to appreciate the convenience of federal social policy, to which provinces largely agreed. As Jenson and Philips (1996: 116) argue, ‘government entered into a relationship with each Canadian via several important new programs. Cheques came from the federal government for family allowances and pensions (...) unemployed picked up their benefits at a federal office.’2 Canadians viewed these social programs, which provinces alone were never able to develop, as serving them well. Universal access to health care figures prominently among those programs with a tremendous practical value for Canadians. In short, the claims of Canadians were satisfied by the federal system. In summary, executive federalism, although it often fails, possesses the capacity to legitimize the Canadian federal system through the production of welfare-enhancing outputs. Simeon explains the process very well: A wide variety of programmes, including the pension plan, have been enacted after discussion in the federal-provincial arena. Many could not have been developed by the federal government without negotiation, since they lay within provincial jurisdiction; nor could they have been developed by the provinces alone, since they lacked the resources. The process provides one way in which the ‘complications of federalism’ can be overcome. (1972: 295)

In his presidential address to the Canadian Political Science Association, David Smith (1995) made a strong case for viewing Canadian institutions not merely as ineffective symbolic tools to secure the loyalty of ordinary citizens, but as practical policy-making devices. This has been very important because of the limited capacity of the Canadian political system to generate input-oriented legitimacy.

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Instrumental Federalism and Democratic Legitimacy Is executive federalism alive and well? Of course not. Several commentators trace the roots of decline to the 1982 inclusion of the Charter of Rights and Freedom in the constitution and identify the failure of the Meech Lake Accord with the death knell of executive federalism. The argument goes as follow: the Charter of Rights and Freedom signals that sovereignty rests with individual citizens whose rights are protected against potential violations by the state; the Meech Lake Accord was negotiated, in a manner exemplifying executive federalism, behind closed doors by eleven statesmen and without public input; citizens, as empowered by the charter, saw this process as illegitimate and therefore opposed the deal (this logic is summarized in Simeon and Cameron, 2002: 278–9; and Brock, 1995: 99). This interpretation is partly wrong, if only because the charter has not suddenly made all Canadians give up on output-oriented legitimacy to embrace input-oriented legitimacy. Nevertheless, few federal policy-makers today would argue in favour of executive federalism and therefore only reluctantly resort to it as a policy-making device. A single institutional innovation, namely the Charter of Rights and Freedom, cannot alone explain the decline of executive federalism. The new public management, participatory policy analysis, and the governance discourses all belong to streams of thought that have gained significant popularity in the 1990s. All propose new ways to bring government closer to citizens and therefore all have contributed to discrediting elite-centred policy processes such as executive federalism. The receptivity to these ideas in Ottawa, however, was increased by the close result of the 1995 Quebec referendum. Fearing that citizens, Québécois in particular, might not be sufficiently attached to the federal government, officials in Ottawa began insisting on the establishment of more direct links with them, notably through public consultations and citizen engagement for policy development. Such direct links, officials argue, following a logic akin to that of input-oriented legitimacy, might help increase the loyalty of Canadians. These new methods of the federal government have transformed Canadian federalism. Despite potential variations from sector to sector, three novelties, difficult to delineate, appear particularly significant: the increased value accorded to citizen engagement by the federal government; the treatment of citizens as clients; and the unilateral

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adoption of symbolic policy tools by the federal government. Susan Phillips (2001) has coined the term ‘instrumental federalism’ to signal that these novelties which, in the case of citizen engagement, resemble a promise rather than an achievement, and do not so much reflect a genuine commitment to democracy as they reflect strategies on the part of the federal government to take the lead in a context of intergovernmental competition. I argue that the main consequence of instrumental federalism is an increasing resort to blame-passing discourses by policymakers, which reduces the legitimacy of the entire federal system. Citizen engagement is justified explicitly in terms of input-oriented legitimacy. Understood in this manner, citizen engagement is likely to fail as Canada is first and foremost a community of claims and the organization of consultations, dialogues or forums alone are unlikely to transform it into a community of faith.3 To be sure, citizens are likely to use these devices, but simply to exercise voice. Nevertheless, citizen engagement has an instrumental value for federal officials who can use it to justify the impossibility of negotiating and achieving compromises with provinces. Resorting to a democratic rhetoric, federal officials can stress the impossibility of betraying the engaged public in the face of provincial demands. In fact, citizen engagement and the democratic rhetoric that accompanies this idea may even justify abandoning altogether intergovernmental negotiations. Directly mandated by the public, the federal government can simply feel justified to act unilaterally. For example, the Millennium Scholarships Program, decided unilaterally, rested on such a justification. The Canadian Foundation for Innovation is another example of such unilateral action (Boismenu, Graefe, and Jenson, 2003: 98–9). Inspired by the new public management, the federal government and most provinces have decided to treat citizens as clients. Concretely, this means that in their negotiations, governments focus less on jurisdictional and other regulatory matters to concentrate their efforts on results. Clients, this logic suggests, do not care whether they receive their services from one order of government or the other; they simply want good services. This logic can be viewed as belonging to output-oriented legitimacy; however, it possesses the key elements of input-oriented legitimacy and thereby transforms executive federalism in a significant manner. While governments were accountable to each other in executive federalism, they become accountable to clients for the services they provide under this new method (Boismenu, Graefe, and Jenson, 2003: 92). As in a market where firms are responsive to the input of individual

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clients, public administrations under this new method should be responsive to clients. In contrast, legitimacy under executive federalism depended on the quality of negotiations and deliberation among representatives of communities and not on responsiveness to individual clients (Atkinson, 1994: 729). Some observers consider this change in approach as the emergence of a new period of collaborative federalism, and the Social Union Framework Agreement, which sets the rules of social investments for the post-deficit era, would serve as its main symbol (Lazar, 2000). Very few analysts, however, share this optimistic view (Phillips, 2001; Noël, 2000; Simeon and Cameron, 2002; Boismenu, Graefe, and Jenson, 2003). I will not summarize the entire range of their reservations here. Suffice it to insist that benchmarking, surveying, and performance indicators, which are the evaluative devices whereby governments become responsive to the input of clients under the new public management, do not eliminate power games among political actors and so do not foster collaboration. Indicators are constructions that provide some political actors with a degree of control over the activities of their subordinates, by no means lower than that provided by the regulations they seek to replace (Rouillard, 2004: 187–8). In the Canadian intergovernmental context, indicators can serve to subordinate one order of government to the other, just as the constitutional divisions of jurisdiction and spending power do. It is therefore not insignificant that the federal government reserves for itself the development of evaluative devices in the context of so-called collaborative federalism (Simeon and Cameron, 2002: 281). If citizen engagement fails to provide Canadians with a sense of belonging, federal officials reason, at least clients will see that their interests are protected by the federal government against provincial governments, which are potentially incompetent. It is because of this instrumental use of the client rhetoric by the federal government that Quebec never signed the Social Union Framework Agreement. Behind a presumed preoccupation for the quality of services to clients, the federal government hides its desire to exercise more control over policy-making activities (Noël, 2003). The rhetoric of the new public management subtly serves the goal of subordinating provinces to Ottawa. Signs of collaborative federalism, geared on results rather than turf battles, are fewer than signs of instrumental federalism. Conflicts between the federal government with one or more provinces prevail over reinvestments in health care, equalization, parental leaves, compassion

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programs, or the implementation of the Kyoto Protocol, to name just a few issues. As the next section indicates, conflicts are also important in areas that have not received much media attention. These conflicts often stem from the federal government’s inclination towards unilateral action. The last novelty is the increased reliance by the federal government on policy tools whose cost is easy to control and that have a high symbolic value. These policy tools appear to gain importance at the expense of financial transfers to provinces (Boismenu, Graefe, and Jenson, 2003). Executive federalism often produced programs partly financed by the federal government, but delivered by provincial governments, irrespective of whom had jurisdiction over what. In addition to their high costs to the federal treasury, the delivery of these programs by provincial governments made the federal contribution largely invisible to citizens. When deficit reduction became a priority in Ottawa, the federal government significantly reduced its financial contribution to these programs (Rocher and Rouillard, 1998). The absence of visibility was then rather convenient for the federal government as provincial governments had to take the blame for program cutbacks, especially in health care. However, in the context of the Quebec referendum and of a balanced budget, the federal government preferred a policy-making approach that granted it more visibility than reinvesting in transfers to provinces. In contrast to transfer payments, the programs launched in this context had two advantages for federal policy-makers: a control on cost easier to achieve and a high symbolic value. For example, the costs of the Millennium Scholarships Program and the Canada Research Chair Program are predictable, as they are independent of factors such as the growth in the student population or the maintenance of schools’ infrastructures. To control cost, federal policy-makers can simply decide unilaterally how many scholarships and chairs to grant each year. In contrast to transfers that simply helped provinces maintain schools, these programs have high symbolic values, both looking after the glamorous area of excellent scholarship. These two programs surely provide the federal government with unprecedented visibility in education. It is in such an instrumental manner that the federal government hopes to stimulate the desire of Canadians to belong to a community of faith. These novelties, mostly resting on the logic if not the language of input-oriented legitimacy (notably citizen engagement), are of instrumental value to the federal government. I have argued above that the capacity of the federal government to successfully resort to inputoriented legitimation processes is low. Instrumental resorts to input-

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oriented legitimacy devices to improve the federal government’s position vis-à-vis provincial governments are unlikely to contribute to transforming the Canadian community of claims into a community of faith. More problematic, however, is that resorts to input-oriented legitimation processes by the federal government often reduce its legitimation capacity through output-oriented processes. Citizen engagement, accountability to clients, and unilateral action have reduced the necessity of deliberations among officials of both orders of government. Fewer such deliberations eventually lead to fewer negotiated agreements and fewer problem-solving possibilities. Some might argue, following Mansbridge’s line of reasoning, that replacing these limited deliberations with engagement by a wider public in policy-making has more positive than negative consequences. In the Canadian intergovernmental context, however, policy-makers may prefer resorting to manipulative discourses rather than entering into genuine deliberations with engaged citizens (Montpetit, Rothmayr, and Varone, 2005). The results of deliberations, where only the best argument prevails, is indeed unpredictable and therefore risk tarnishing the prestige of one order of government or the other. In Canada, governments have often attempted to protect their prestige by resorting to blame-passing (Harrison, 1996), a strategy that only becomes more appealing in the context of instrumental federalism. When citizen engagement feeds deception among participants, when the so-called clients complain, or when unilateral action fails, blaming the other order of government can afford some protection to a government’s prestige. In contrast, blame-passing was not as appealing when policies were devised through deliberation among representatives of both orders of government. Executive federalism, indeed, provided forums not only to devise policy solutions, but also to develop common discourses by the two orders of government to convince citizens about the practicality of policy solutions. In the post executive federalism context, blamepassing discourses are increasingly replacing discourses to convince Canadians that the policy choices made through intergovernmental deliberations are good choices. The controversy surrounding a fiscal imbalance in Canada provides a clear example of this. Since the reduction of federal transfers to the provinces in the mid-1990s, provincial budgets have suffered severe strains. Quebec appointed a commission, the Commission on Fiscal Imbalance, to document the situation. The commission, unsurprisingly, blamed the federal government for creating an imbalance between the responsibilities of the provinces and the

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fiscal capacity of the federal government. All provinces have embraced the conclusion of this commission. In response, the federal government not only denied the existence of the imbalance, but blamed provincial tax reductions for creating strains in provincial budgets. Instead of deliberating on solutions to financial problems across Canada, governments pass blame. In what follows, I illustrate the consequences of these novelties in Canadian federalism on legitimacy through an examination of agricultural and biomedical policy-making. While these two case studies do not provide empirical support for every argument that I have presented thus far, they do provide some evidence of a shift towards inputoriented legitimacy and illustrate some of the consequences of this shift for outputs. The significance of the shift and of its consequences is further supported by the distinctive nature of the two sectors. In contrast to agriculture, which is territorially constrained and associated with regional and provincial communities, biomedicine is a new policy area arguably more amenable to the development of a policy legitimized Canada-wide by outputs. Despite these differences, I found in both sectors the same shift toward input-oriented legitimacy and similar consequences for outputs. Agriculture There are several agricultures in Canada.3 A salient cleavage is between prairie and central Canada agricultures. Prairie agriculture is concerned with cash crops, notably wheat, only a fraction of which can be absorbed by the domestic market. In contrast, central Canada agriculture is diversified, dairy farming occupying a pride of place, but comprising also a fair number of egg and poultry farms, whose produce is, by and large, targeted at the domestic market. Dairy, egg, and poultry production is regulated by a system of supply management, which sets the quantities of produce needed on the domestic market and shares them among farmers through a quota system. Naturally, this system requires a tight control of imports, originally exercised through import quotas. The advantage of such a system is that it avoids overproduction and thus guarantees a stable income to farmers. Both kinds of agriculture cohabited in relative harmony until 1986, when agriculture was placed on the agenda of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). Dependent on access to international markets and victims of price depreciation fol-

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lowing wars of export subsidies between the United States and the European Union, prairie farmers were naturally favourable to trade liberalization. In sharp contrast, dairy, egg, and poultry farmers from central Canada saw in trade liberalization a threat to supply management and a potential end to the price stability they had enjoyed. This tension represented a challenge for federal policy-makers who had to develop a Canadian position on agricultural trade in view of the GATT negotiations. The challenge was surmounted with relative success thanks to the practice of executive federalism. Indeed, the Canadian position on agricultural trade for the Uruguay Round of negotiations was developed during a series of intergovernmental meetings at the administrative and political levels. Unsurprisingly, an agreement was reached only at high transaction costs. The supply-managed sectors urged representatives of central Canada to resist too strong a stance against subsidies, fearing it would undermine any protectionist argument Canada had to endorse to protect supply management. Conversely, grain producers asked representatives of prairie provinces to resist too strong a stance in favour of protectionist measures, fearing it would undermine increased access to external markets. Adding to the difficulty were prairie provinces’ representatives who believed dairy quotas were unfairly distributed across Canada, and representatives of provinces in central Canada who believed federal subsidies were too often targeted at prairie farmers. While initially supporting both increased market access and GATT’s article XI.2(c), upon which rested import quotas, policy-makers finally came to accept substituting import quotas by tariffs subjected to a schedule of reduction, reflecting an agreement on a reformist agenda among them. This evolution in the position of Canadian policy-makers results less from international pressures than from internal considerations brought to bear in the intergovernmental forums of executive federalism. As Skogstad (1996: 156) points out, in the neo-liberal context of the late 1980s consumers and taxpayers increasingly expressed concerns that farmers were not sufficiently exposed to market discipline. After the Free Trade Agreement, Canadians across the country became convinced that international trade was economically beneficial and did not undermine the state’s autonomy in looking after the welfare of citizens. Under these circumstances, policy-makers became increasingly favourable to a reformist agenda for agriculture. As Paarlberg (1997: 441) wrote: ‘In many instances the modest reforms that were written

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into the final [GATT] agreement reflected policy changes already undertaken unilaterally in response to internal budget pressures or in response to other pressures that did not derive specifically from the Uruguay Round negotiation.’ In Canada, reforms had in fact been widely discussed in intergovernmental meetings prior to the conclusion of the Uruguay Round. The relative success of intergovernmental negotiations during the seven years of Uruguay Round negotiations are reflected by the practical changes policy-makers agreed to make in Canadian agricultural policy. In exchange for increased market access, subsidies for the grain sector were drastically reduced and were eliminated for the dairy sector. While the level of import tariffs guarantees the survival of supply management for some years, dairy, egg, and poultry producers are no longer entirely shielded from market discipline, forcing significant structural adjustments on farms (Skogstad, 1996: 152–3). These changes limited disappointments in farming communities, while partly satisfying neo-liberal reformers. They surely can be viewed as a source of output-oriented legitimacy. More importantly, however, intense intergovernmental negotiations created a sense of solidarity among policymakers of both orders of governments, curtailing any temptation to pass blame in the face of any expression of disappointment by citizens or farmers. Preoccupations with international trade negotiations in agriculture resumed later in the 1990s, after enthusiasm for executive federalism had significantly declined in Ottawa. After 1995, federal policy-makers began to display a preference for public and interest group consultations over intergovernmental negotiations during the preparation for the ministerial meeting of the World Trade Organization in Seattle held in 1999. While only some provinces organized wide-open public consultations during the Uruguay Round, the federal government held several such consultations after 1995. Officials explained that these initiatives to engage citizens were mostly educational exercises aimed at informing the public about Canadian positions in agriculture. They naturally also increased the visibility of the federal government. When it came to developing policy positions, negotiations with interest groups in the agricultural Sectoral Advisory Group on International Trade (SAGIT) had the greatest impact. The Canadian Federation of Agriculture (CFA) was largely sidelined during SAGIT negotiations by province-based farm groups. The CFA’s reputation suffered because of its inefficacy during the Uruguay Round. It should be underlined that

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the agricultural SAGIT is not an example of transparency and equal access, two important aspects of input-oriented legitimacy. In any case, responding to the narrow demands of clients, in fact, appears easier than attempting to reconcile the views of provincial officials stemming from contrasting regional interests. As an interviewee pointed out, the Alberta’s Cattlemen Association worries about cattle only. Unlike prairie province officials whose perspective on agriculture is wider, the association is not concerned with issues such as the distribution of dairy quotas across Canada. Therefore, it is easier for federal officials to negotiate with the Alberta Cattlemen Association than it is to negotiate with the Alberta provincial government, who will link all agricultural issues. From an output-oriented perspective, substituting negotiations with interest groups for negotiations with provinces has serious consequences. While it can reduce transaction costs, it detaches inclusion in deliberation from a logic that values participants for what they have to contribute to others. It is doubtful whether such a process will encourage a transfer of loyalty of interest groups from the provincial to the federal government. Direct consultations may increase the possibility for those concerned to exercise voice, but agricultural communities remain largely province-based. In addition, while the novel policy-making practices of the federal government can increase its visibility in agriculture, provincial governments currently make much larger financial contributions to farm programs (Skogstad, 1996: 159). Meanwhile, these policy-making practices reduce the capacity of Canadian federalism to make practical policy contributing to output-oriented legitimation. Responsive to specialized farm groups over provinces, the federal government currently favours a piecemeal approach to international trade negotiations. In fact, interviewees explained that the approach is intentionally dissociated from any cohesive reformist discourse, such as during the Uruguay Round, to grant the federal government more negotiating flexibility. Deprived of a cohesive reformist discourse, the federal government has increasingly adopted reactive agricultural policies at the domestic level. It has simply reacted to the plummeting of grain prices at the end of the 1990s, just as it has reacted to mad cow disease. As in other sectors, these reactions involve limited financial commitments. Output-oriented legitimacy entails a capacity on the part of policy-makers to convince all concerned actors and citizens that their policies are serving the common good. A wide public has to believe that policy choices serve them well. This capacity is reduced in

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absence of a cohesive discourse and a practical vision devised through problem-solving deliberations. The capacity to convince citizens that current agricultural policy choices are practical is further reduced by the absence of a provincial loyalty with respect to any rationale that federal officials decide to evoke. With intergovernmental loyalty absent, provincial governments blame the federal government when citizens express dissatisfaction. During the period of price depreciation following the mad cow crisis, provincial officials did not hesitate to resort to blame-passing strategies. Likewise, federal officials can compensate for a lack of reformist vision by employing the same strategy. Provinces, they can claim, are too divided to sit down and discuss such a vision. Biomedicine Unlike agriculture, which depends on topography, soil, and weather, biomedical issues do not vary greatly on a territorial basis; the biomedical activities carried out in Toronto could conceivably be carried out in Calgary or Halifax.4 Despite this important difference, federal policymaking in biomedicine functions according to a logic very similar to that prevailing in agriculture. Among the biomedical issues on the political agenda, stem cell research recently has captured most public attention. It has done so for three reasons. First, stem cells, because they can grow into any human tissue, promise a cure to those grave illnesses requiring tissue replacement. Second, embryos constitute a central source of stem cells. Naturally, all embryos used in stem cell research are destroyed, raising moral and ethical issues. For pro-life groups, this is akin to murder; for others, it represents an outrageous instrumentalization of human life at the expense of its sacred character. Third, some researchers claim that tissue creation from stem cells is most likely to lead to effective replacements if the stem cells come from the embryo of a clone of the patient. Cloning for stem cells, often referred to as therapeutic cloning, may help overcome biological rejection of a foreign tissue. Any knowledge created to clone for this purpose, however, can also be used to clone for reproductive purposes, hence the worries raised by stem cell research. Most worries raised by stem cell research are closely related to its reliance on assisted reproductive technologies (ARTs). Hardly new, those worries were most clearly formulated in Canada by the Royal Commission on New Reproductive Technologies (RCNRT) in its 1993

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report. The commission’s conclusions were straightforward: it stressed the urgency for the federal government to ban extreme practices such as human cloning or sex selection and to create, in concert with provincial governments, a new federal regulatory agency for ARTs. As far as banning extreme practices goes, the solution was indeed simple: the federal government was constitutionally empowered to adopt a law making it a criminal offence to resort to any such practices. All provinces even urged the federal government to use its criminal law powers to ban reproductive cloning. However, provinces insisted on their jurisdiction over health care and medical acts, making the creation of a federal regulatory agency a difficult exercise. The RCNRT argued that the federal government was constitutionally empowered to create such an agency given its responsibility for peace, order, and good government, although several lawyers disagreed. In any case, the commission acknowledged that intergovernmental cooperation was better than unilateral federal action. Even if provinces are constitutionally empowered to have their own biomedical policies, they have a clear interest in cooperation. Indeed, researchers and patients are highly mobile and can simply go wherever provincial regulations are permissive, creating regulatory competition among provinces that pulls towards the lowest common denominator. Intergovernmental cooperation to create a fair playing field could constitute a solution to this regulatory competition. It is in this spirit that provinces participated in intergovernmental meetings following the release of the report of the RCNRT. The growing desire of the federal government to become a prominent actor in this area, however, eventually spoiled the negotiations. In the period between 1993 and 1996 several intergovernmental meetings and public consultations on ARTs were conducted by Health Canada. Public consultations revealed that several groups, notably women’s groups, desired a comprehensive federal policy on ARTs,5 a policy similar to that proposed by the RCNRT. Meanwhile, intergovernmental meetings revealed a strong opposition to a new federal regulatory agency on the part of several provinces. The initial response of the federal government was largely consistent with executive federalism. In a 1996 white paper on ARTs, the federal government indeed announced a two-step approach whereby extreme practices were to be banned under a criminal law first, and intensive intergovernmental negotiations to develop a regulatory system were to follow. The criminal law, named the Human Reproductive and Genetic Technologies Act

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was introduced into Parliament, although parliamentary hearings rapidly revealed its deficiencies. While the groups heard by the House Standing Committee on Health invoked several conflicting reasons to justify their disagreement with the bill’s substance, they all seemed to agree that Health Canada had not consulted or listened to them enough, thanks to intergovernmental negotiations.6 In the face of these criticisms, the federal government decided to allow the bill to die on the order paper. When ARTs reappeared on the agenda of the federal government after the 1997 election, executive federalism was much less a priority. Intergovernmental meetings were certainly organized and the federal government even offered to recognise provincial policies equivalent to its own in a new bill. While this would have solved the problem of regulatory competition, several provinces just could not resign themselves to the idea of a new regulatory agency controlled exclusively by the federal government in an area of provincial jurisdiction. The federal government nevertheless presented a new bill to Parliament in the spring of 2002, an Act Respecting Assisted Human Reproduction and Related Research. When the bill finally passed in the House of Commons in October 2003, Ann McLellan, then health minister, said: ‘Countless individuals and organizations have contributed to bringing the legislation to this point. Canadians have clearly said that they want federal leadership in this area. Today the House of Commons has demonstrated that leadership.’7 Unsurprisingly, the minister did not say a word about provinces. In fact, just a few days before, Quebec’s health minister, Philippe Couillard, publicly denounced the bill: ‘We informed the federal government, in a clear manner, that we disapprove several dispositions of this new bill, because they fall clearly within provincial jurisdictions’ (quoted in Paré, 2003). Interestingly enough, Jean Charest’s newly elected government, to which Couillard belongs, has committed itself to collaborative federalism. As McLellan’s comment illustrates, intergovernmental negotiations are no longer a central concern of the federal government. In fact, federal officials heavily relied on a rhetoric of proximity with citizens to legitimize its new bill. The bill itself provides for the establishment of a board of directors to govern the Assisted Human Reproduction Agency of Canada (AHRAC), made of individual citizens from various backgrounds. Confirming the control of the federal government on the AHRAC, the board of directors is appointed by the governorin-council.

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Hoping to create a sense of input-oriented legitimacy, the federal government also opened up consultations to as many concerned citizens as possible during the formulation phase of the bill. Not content with the consultations undertaken by Health Canada, the government mandated the House Standing Committee on Health in the spring of 2001 to pursue consultations and report on a draft bill. The central concern of the federal government was the persisting disagreement among individuals and groups representing the medical profession, women, and religion. Appealing solutions did not come easily. A constellation of actors holding a variety of views is an asset for problemsolving up to a point. But beyond that point actors can no longer trust each other and therefore hold a reasonable discussion. Reactions to the bill in the Senate attest to the difficulty of holding reasonable discussions with the actors selected by the federal government seeking to stimulate input-oriented legitimacy. On 11 March 2004 Senator Wilbert Keon, himself a physician, presented the persisting disagreements among groups in these terms: ‘The Standing Senate Committee on Social Affairs, Science and Technology heard from many individuals and organizations with contrary opinions on this bill. Some strongly opposed it, others urged its passage.’ Beyond the disagreement of groups over the bill, Keon explained, senators must consider political reality in making their decision. In fact, when appearing before the committee, the new health minister, Pierre Pettigrew, made it clear that he would not accept splitting the bill to treat the prohibitions and the regulation of medial acts separately, an option several provinces would have welcomed. Therefore, Keon continued, ‘amending this bill in the Senate will be tantamount to killing it ... Those of us who view this bill with uncertainty must now weigh whether we can support it despite our reservations. Is it better to have this imperfect bill or none at all?’ In the face of such a political reality, only a few groups can feel they have been listened to and everyone else is likely to conclude that their voice was not heard, thereby depriving the decision of much input-oriented legitimacy. Nevertheless, the senators ratified the bill. The risk of tarnishing the prestige of the federal government with an imperfect law, as Senator Keon described the act, is reduced by the possibility of resorting to blame-passing strategies. If problems were to arise, the federal government would always have the option to blame the absence of provincial cooperation – a strategy currently plausible as Quebec decided in the fall of 2004 to challenge the federal act in court. Nevertheless, the absence of cooperation harms output-oriented legiti-

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macy, as fertility clinics and research facilities are currently largely regulated by the provinces. In addition, any blame will likely be deflected back towards the federal government by provincial authorities. As Hood (2002) argues, blame rarely travels in straight line. Provinces can credibly claim that the federal government should enact policies targeted at a sector for which they have primary expertise only after having obtained their full agreement. Blame-passing was common, even before the adoption of the bill on assisted procreation. When the Raelian cult announced the birth of the first human clone in December 2002, provincial politicians were keen to remind citizens how shameful it was for Canada not to have a criminal law preventing such an abuse. In turn, federal policy-makers argued that an approach based solely on criminal law would be wholly inadequate and blamed provinces for not sufficiently cooperating in the creation of a federal agency. The following quote from a provincial official illustrates this blame-passing discourse clearly: ‘I often get phone calls from people. They know I work on assisted conception since 1986 and therefore they ask me why in 2000 cloning is still permitted. I have to tell them that criminal law is a federal jurisdiction.’ Federal officials can surely claim that their law on ARTs serves a great cause – a cause which indeed has symbolic appeal. However, the absence of an intergovernmental agreement unfortunately prevents federal and provincial politicians from working in concert to convince citizens that their solutions for ARTs are practical and convenient, as they often did during the period of executive federalism. Without a discourse by politicians of all orders of government to convince citizens that Canadian policies serve them well, the Canadian federation can hardly inspire a sense of output-oriented legitimacy. Conclusion I have argued that input-oriented legitimation strategies in Canada are doomed to fail. Therefore, the legitimacy of Canada’s federal arrangement has to rest on output. However, it should be underlined that a return to executive federalism does not have to mean giving up entirely on input-oriented legitimation ideas, notably citizen engagement. Critics who claim executive federalism is undemocratic neglect the public consultations conducted by provincial governments before and after intergovernmental meetings. My advice to return to executive federal-

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ism in no way implies that provincial governments should not attempt to engage their citizens more prior to intergovernmental meetings. In fact, I concur with analysts who note that citizen engagement should ‘start first in the provinces and in specific sectors where democratization appears more advanced and more promising’ (Noël, St-Hilaire, and Fortin, 2003: 20). If executive federalism was not a perfect policy-making device, it was one that did not deserve to be abandoned. Stephan Dupré made several suggestions on how to improve executive federalism a few years before federal politicians gave up on it, and his suggestions remain as valid today as they were when he formulated them. If cabinets could be more stable, if lasting relationships among the participants in intergovernmental meetings could be built around professional norms, and if interference by central agencies motivated by managerial preoccupations could be reduced, members of provincial and federal executives could work better to find practical solutions. Executive federalism was not abandoned because it could no longer be improved, but for a host of circumstantial reasons. Among these reasons is the question of the place of Quebec in Canada that made federal officials particularly receptive to ideas of citizen engagement, governance, and new public management. These ideas provided the means for the federal government to become more visible to citizens. The shift to input-oriented legitimation in Ottawa is problematic because too many Canadians refuse to view the country as something to which they desire belonging and prefer viewing it as something convenient. In the 1970s, Donald Smiley (1976) asked whether Canada formed a national community. He rightfully stressed that Canada could not be conceived as a national community made of people who feel they belong together and believe they share a common destiny. He argued that Canada formed a ‘community of claims.’ Some Canadians believe in the country’s federal arrangement to the extent that it contributes to honouring their claims. Consequently, Smiley wrote, ‘we can find the reality of Canadian nationhood in such places as the Statutes of Canada and the Public Accounts of the Government of Canada’ (ibid.: 218). This is another way of saying that Canada’s legitimacy largely depends on its output. David Smith (1995) has also contributed to such an understanding of Canada when he powerfully argued in favour of a closer examination of the practicality of Canadian institutions, even those such as the Crown, traditionally valued for their

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symbolic character. As the case studies presented in this chapter show, however, policy-makers’ efforts to create among Canadians a greater sense of belonging have tragically contributed to undermining the practicality and hence the legitimacy of federalism.

NOTES I was sincerely honoured when Cristine de Clercy and Hans Michelmann asked me to contribute to the festschrift for David Smith. As the chair of the Department of Political Studies at the University of Saskatchewan, David Smith offered me a first professorship job. Needless to say, it was a pleasure to work with him in this friendly department. I would like to thank Alain Noël, Charles Blattberg, Francis Garon, Hans Michelmann, and Cristine de Clercy for useful comments on the first draft of this chapter. 1 Jenson and Pillips argue that these practical matters came to have significant input-oriented legitimacy consequences, creating what they call a ‘post-war citizenship regime.’ In comparison to other industrialized countries, the citizenship regime of a large proportion of Canadians has always remain first and foremost provincial. For those Canadians, output-oriented legitimation always dominated. 2 The construction of a community of faith is a topic which I cannot cover in this paper. Suffice it to say that it is a long-term social process, which cannot be controlled or manipulated from above by a single actor. If Canada becomes a community of faith some day, it will be because of a long list of actions, independently decided by a large number of actors, and which will not have been necessarily intended to create a community of faith. 3 This case study is based on a series of confidential interviews conducted in Ottawa, Montreal, and Quebec City in the winter of 2000. Additional details related to this case study can be found in Montpetit, 2004b. 4 This case study is based on a series of confidential interviews conducted in Ottawa and Montreal between 2000 and 2002. Additional details can be found in Montpetit, 2004a and 2003b. 5 It should be noted that several groups also disagreed. For example, groups of physicians were opposed to a strong federal presence in this area. 6 Several quotes from groups who support this argument are reproduced in Montpetit, 2003b: 107. 7 Press release by Health Canada, 28 October 2003. http://www.hc-sc.gc.ca/ english/media/releases/2003/2003_81.htm.

Declining Legitimacy and Canadian Federalism 113 REFERENCES Atkinson, Michael M. 1994. ‘What Kind of Democracy Do Canadians Want?’ Canadian Journal of Political Science XXVII, no. 4: 717–745. Blattberg, Charles. 2003. Shall We Dance? A Patriotic Politics for Canada. Montreal: McGill-Queen’s University Press. Bohman, James, and William Rehg, eds. 1997. Deliberative Democracy: Essays on Reason and Politics. Cambridge, Mass.: MIT Press. Boismenu, Gérard, Peter Graefe, and Jane Jenson. 2003. ‘Anciens et nouveaux outils de gouvernance dans l’union sociale canandienne.’ Société Contemporaines 51: 83–105. Brock, Kathy L. 1995. ‘The End of Executive Federalism?’ In New Trends in Canadian Federalism, ed. François Rocher and Miriam Smith. Peterborough: Broadview Press. Cairns, Alain C. 1991. ‘The Charter, Interests Groups, Executive Federalism, and Constitutional Reform.’ In After Meech Lake, ed. David E. Smith, Peter MacKinnon, and John C. Courtney. Saskatoon: Fifth House Publishers. Dupré, Stephen. 1988. ‘Reflections on the Workability of Executive Federalism.’ In Perspectives on Canadian Federalism, ed. R.D. Olling and M.W. Westmacott. Scarborough: Prentice-Hall. Gagnon, Alain-G., and Can Erk. 2002. ‘Legitimacy, Effectiveness, and Federalism: On the Benefits of Ambiguity.’ In Canadian Federalism: Performance, Effectiveness, and Legitimacy, ed., Herman Bakvis and Grace Skogstad. Toronto: Oxford University Press. Government of Canada. 1996. New Reproductive and Genetic Technologies: Setting Boundaries, Enhancing Health, Ottawa: Minister of Supply and Services Canada. Harrison, Kathryn. 1996. Passing the Buck: Federalism and Canadian Environmental Policy. Vancouver: University of British Columbia Press. Hirschman, Albert O. 1970. Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations and States. Cambridge, Mass.: Harvard University Press. Hood, Christopher. 2002. ‘The Risk Game and the Blame Game.’ Government and Opposition 37: 15–37. Jenkin, Michael. 1983. The Challenge of Diversity: Industrial Policy in the Canadian Federation. Ottawa: Science Council of Canada, Minister of Supply and Services Canada. Jenson, Jane, and Susan D. Phillips. 1996. ‘Regime Shift: New Citizenship Practices in Canada.’ International Journal of Canadian Studies 14: 111–35.

114 Éric Montpetit Lazar, Harvey. 2000. ‘In Search of a New Mission Statement for Canadian Fiscal Federalism.’ In Canada: The State of the Federation: Non-Constitutional Renewal, ed. Harvey Lazar. Kingston: Institute of Intergovernmental Relations, Queen’s University. Mansbridge, Jane. 2003. ‘Rethinking Representation.’ American Political Science Review 97, no. 4: 515–28. Mendelsohn, Matthew. 2000. ‘Public Brokerage: Constitutional Reform, Public Participation, and the Accommodation of Mass Publics.’ Canadian Journal of Political Science 33, no. 2: 245–73. Mendelsohn, Matthew, and John McLean. 2002. ‘Reconcilable Differences: Federalism and Public Consultation.’ In Federalism and Democracy, ed. David Stewart and Paul Thomas. Winnipeg: University of Manitoba Press. Montpetit, Éric. 2003a. Misplaced Distrust: Policy Networks and the Environment in France, the United States, and Canada. Vancouver: University of British Columbia Press. – 2003b. ‘Public Consultations in Policy Network Environments: The Case of Assisted Reproductive Technology Policy in Canada.’ Canadian Public Policy XXIX: 1–16. – 2004a. ‘Policy Networks, Federalism and Managerial Ideas: How ART NonDecision in Canada Safeguards the Autonomy of the Medical Profession.’ In Comparative Biomedical Policy: Governing Assisted Reproductive Technologies, ed. Ivar Bleiklie, Malcolm L. Goggin, and Christine Rothmayr, London: Routledge. – 2004b. ‘Can Québec Neo-Corporatist Networks Withstand Canadian Federalism and Internationalisation?’ In Québec: State and Society, ed. A-G. Gagnon. Peterborough: Broadview Press. Montpetit, Éric, Christine Rothmayr, and Frédéric Varone. Forthcoming in 2005. ‘Institutional Vulnerability to Social Constructions: Federalism, Target Populations and Policy Designs for Assisted Reproductive Technology in Six Democracies.’ Comparative Political Studies. Noël, Alain. 2000. ‘Collaborative Federalism with a Footnote.’ Policy Matters 1, no. 2: 4–26. – 2003. ‘Power and Purpose in Intergovernmental Relations.’ In Forging the Canadian Social Union, ed. Sarah Fortin, Alain Noël, and France St-Hilaire. Montreal: Institute for Research on Public Policy. Noël, Alain, France St-Hilaire, and Sarah Fortin. 2003. ‘Learning from the SUFA Experience.’ In Forging the Canadian Social Union, ed. Sarah Fortin, Alain Noël, and France St-Hilaire. Montreal: Institute for Research on Public Policy.

Declining Legitimacy and Canadian Federalism 115 Öberg, Perola. 2002. ‘Does Administrative Corporatism Promote Trust and Deliberation?’ Governance 15, no. 4: 455–475. Offe, Claus. 1999. ‘How Can We Trust our Fellow Citizens?’ In Democracy and Trust, ed. Mark Warren. Cambridge: Cambridge University Press. Paarlberg, Robert. 1997. ‘Agricultural Policy Reform and the Uruguay Round: Synergistic Linkage in a Two-Level Game?’ International Organization 51, no. 3: 413–44. Paré, Isabelle. 2003. ‘Clonage et techniques de reproduction: Couillard rejette le projet de loi fédéral.’ Le Devoir, 8 Octobre. Phillips, Susan D. 2001. ‘SUFA and Citizen Engagement: Fake or Genuine Masterpiece?’ Policy Matters 2, no. 7: 1–36. Risse, Thomas. 2000. ‘Let’s Argue!: Communicative Action in World Politics.’ International Organization 54, no. 1: 1–39. Rocher, François, and Christian Rouillard. 1998. ‘Décentralisation, subsidiarité et néo-libéralisme au Canada.’ Canadian Public Policy 24, no. 2 : 233–58. Rouillard, Christian. 2004. ‘Managerial Innovation and the Québec Central Agencies.’ In Québec: State and Society, ed. A-G. Gagnon. Peterborough: Broadview Press. Scharpf, Fritz W. 1997. Games Real Actors Play: Actor-Centered Institutionalism in Policy Research. Boulder: Westview Press. Simeon, Richard. 1972. Federal-Provincial Diplomacy: The Making of Recent Policy in Canada. Toronto: University of Toronto Press. Simeon, Richard, and David Cameron. 2002. ‘Intergovernmental Relations and Democracy: An Oxymoron if There Ever Was One?’ In Canadian Federalism: Performance, Effectiveness, and Legitimacy, ed. Herman Bakvis and Grace Skogstad. Toronto: Oxford University Press. Skogstad, Grace. 1996. ‘Agricultural Policy.’ In Border Crossings: The Internationalization of Canadian Public Policy, ed. G. Bruce Doern, Leslie A. Pal, and Brian W. Tomlin. Toronto: Oxford University Press. – 2003. ‘Who Governs? Who Should Govern?: Political Authority and Legitimacy in Canada in the Twenty-First Century.’ Canadian Journal of Political Science 36, no. 5: 955–74. Smiley, Donald V. 1976. Canada in Question: Federalism in the Seventies. 2nd ed. Toronto: McGraw-Hill Ryerson. – 1987. The Federal Condition in Canada. Toronto: McGraw-Hill Ryerson. Smith, David E. 1988. ‘Prairie Political Cultures and Canadian Federalism.’ In Centralizing and Decentralizing Trends in Federal States, ed. C. Lloyd Brown-John. Boston: University Press of America. – 1989. ‘Broadcasting in the Federation: National Power, Divided Purpose.’

116 Éric Montpetit In Federalism and Political Community: Essays in Honour of Donald Smiley, ed. David P. Shugarman and Reg Whitaker. Peterborough: Broadview Press. – 1991. ‘Empire, Crown and Canadian Federalism.’ Canadian Journal of Political Science 24, no. 3: 451–74. – 1995. ‘Bagehot, the Crown and the Canadian Constitution.’ Canadian Journal of Political Science 28, no. 4: 619–36. Smith, Miriam. 1995. ‘Retrenching the Sacred Trust: Medicare and Canadian Federalism.’ In New Trends in Canadian Federalism, ed. François Rocher and Miriam Smith. Peterborough: Broadview Press. Stevenson, Garth. 1995. ‘Federalism and Intergovernmental Relations.’ In Canadian Politics in the 1990s, ed. Michael S. Whittington and Glen Williams. Scarborough: Nelson Canada.

5 From Collaborative Federalism to the New Unilateralism: Implications for the Welfare State brooke jeffrey

The Canadian federation is evolving towards greater co-operation and consensus-building, while still respecting the constitutional jurisdiction of each order of government, rather than towards extensive centralization in favour of the federal government or extensive decentralization in favour of provincial governments. – Stéphane Dion, Minister of Intergovernmental Relations, May 2000

After more than ten years of bitter intergovernmental conflict and two failed attempts at constitutional reform that left executive federalism thoroughly discredited, it was widely anticipated Canada would enter a period of more harmonious federal-provincial relations in 1993. The reason for this optimism was the election of the Chrétien Liberals and their promise of a new approach to intergovernmental relations which proponents such as intergovernmental affairs minister Stéphane Dion termed collaborative federalism. In this model the federal and provincial governments would be equal, non-hierarchical partners in various policy fields, notably social policy. In theory, the two levels of government would participate equally in the decision-making process. Implementation would be left to the level of government most appropriate to provide the service or program, a concept reminiscent of the subsidiary principle of the European Union. Advocates of collaborative federalism believed its success was conclusively demonstrated by the signing of the Social Union Framework Agreement (SUFA) in 1999. Hopes were also high that the SUFA would mark the beginning of a new era for the welfare state, with the coordination and delivery of social programs greatly enhanced.

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For many, collaborative federalism represented a kind of third way of Canadian federalism. The old concerns with jurisdiction and power would be replaced with a pragmatic working model in which efficiency and efficacy prevailed. Some went so far as to claim the underlying centralization-decentralization paradigm would now be meaningless as well. In reality, however, collaborative federalism has not proven nearly as successful as hoped. Certainly it has not improved efficiency or enhanced intergovernmental cooperation. Instead, five years after the adoption of the SUFA, the formulation and delivery of social programs in Canada is a more disjointed exercise than ever before. On the one hand, both levels of government have implemented an unprecedented number of social policy measures unilaterally. On the other, many long-anticipated new social policy initiatives have been effectively derailed through lack of intergovernmental cooperation and consensus. Meanwhile the SUFA itself has all but disappeared from the radar screen of most federal and provincial politicians. And although the language of the various sub-agreements drafted since 1999 continues to reflect the ideals of collaborative federalism, the actions of the players speaks louder than words. Perhaps the most striking example of the SUFA’s irrelevance was the ultimatum issued by the premiers in January of 2002 demanding the federal government provide additional funding for health care. The press release at the end of their annual conference declared they would view Ottawa’s failure to respond to their concerns as an abandonment of the SUFA. This not-too-subtle attempt to blackmail the federal government was problematic, since the provinces themselves had consistently failed to live up to the accountability measures required of them in the SUFA. Despite their threat it was not until February 2003 that another funding deal for health care was offered by the Chrétien government, this time in exchange for provincial agreement on the creation of a National Health Council. Within months several premiers, and notably Ralph Klein of Alberta, proceeded to renege on this commitment. The root causes of the failure of collaborative federalism can be traced partly to the ambiguity of the provisions of the SUFA itself, but more importantly to a number of significant new developments within the Canadian political system. These events arguably have altered the context of intergovernmental relations, introducing a variety of new actors and weakening the long-standing liberal consensus on the role of the state. While the discourse of collaborative federalism reflects some

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of these new considerations, it fails to reconcile the competing claims of the new actors, or to acknowledge the overarching importance of the welfare state as an element of nation-building and, hence, to take into account the symbiotic relationship between social policy and the national unity file. Finally, like the Mulroney government’s naive strategy of personalizing intergovernmental relations at the executive level, the collaborative model fails to recognize the essentially competitive nature of the Canadian federal system as identified by Albert Breton (1989). In short, collaborative federalism has been more myth than reality. Moreover, there is considerable evidence to suggest the Chrétien government’s original enthusiasm for this model was motivated less by conviction than by its appeal as a solution of convenience, allowing the Liberals to fulfil their campaign promise of improved intergovernmental relations while buying time to cope with the unexpected problems encountered on taking office in 1993. For many provinces, meanwhile, collaborative federalism was clearly seen as opportunity not merely to work in partnership but actually to limit federal initiatives. This chapter explores the underlying factors leading to the collapse of executive federalism and the emergence of the collaborative federalism model, demonstrating their significance for the federal government’s subsequent difficulties in reasserting its leadership role on social policy once these problems were resolved. It concludes with an analysis of the impact of the new federal unilateralism which has developed as an alternative to collaborative federalism, highlighting some important consequences for the welfare state. Setting the Stage: The Collapse of Executive Federalism The election of the Mulroney Conservatives in 1984 represented a sea change in federal attitudes towards the welfare state and the conduct of intergovernmental affairs. Far from the sacred trust of the election campaign, it soon became apparent the new government’s commitment to social programs was conditional. Intergovernmental confrontation grew as the Conservatives began to focus on these programs as a problem. As Baker (1997) has outlined, neoliberal governments in many OECD states have used the discourse of ‘efficiency’ and ‘modernization’ to restructure the welfare state when the real purpose is to reduce program expenditures, and the Mulroney government was no exception. Ignoring the importance of social programs for national unity as well as social cohesion, they viewed these programs primar-

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ily as targets for cost-cutting to bring the burgeoning federal deficit under control. The new government also served notice it viewed the national unity file as unfinished business. Prime Minister Mulroney declared he was committed to achieving Quebec’s acceptance of constitutional reform at all costs. This too represented a dramatic departure from the approach of previous governments, and certainly of the Trudeau Liberals, who had not anticipated the need for further constitutional reform for at least a generation. Ironically, the Mulroney government aggressively employed the executive federalism model, already under strain during the last Trudeau mandate, in its efforts to achieve this constitutional reform. Where Prime Minister Trudeau had essentially gone around the premiers and appealed to Parliament and the people in order to succeed with his constitutional project, Mulroney opted to use executive federalism almost to the exclusion of Parliament and popular opinion. His approach to executive federalism was also very different from that of his predecessor. As Aucoin (1988) has demonstrated, instead of trying to forge consensus on policy issues, the new prime minister’s strategy depended heavily on his ability to develop personal relationships with individual premiers as a way of brokering deals. Problems with this personalized approach quickly surfaced. After a brief post-election honeymoon during which the first ministers met in Saskatoon on Valentine’s Day, 1985 to discuss the economy, the relationship began to deteriorate rapidly. This was partly the result of the prime minister’s tendency to pit one region of the country against another. But it was primarily because of the government’s ill-considered decision to pursue its retrenchment of the welfare state at the expense of the provinces, while simultaneously promoting an ambitious constitutional reform agenda that required provincial cooperation. Two specific measures brought the intergovernmental conflict to a head almost immediately. First, in 1986 the Mulroney government announced reductions in the cash transfer component of federal support to the provinces for social programs in the middle of a five-year agreement. By 1991 the impact of the federal cuts had so angered the premiers of the three wealthiest provinces – Ontario, Alberta, and British Columbia – that they launched a Supreme Court challenge to the federal actions. Although their suit was unsuccessful, the case served notice that the provinces were about to become far more demanding and inflexible. A third measure introduced by the Mulroney government to reduce

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federal expenditures on social programs was the 1986 tax provision to claw back a variety of benefits for senior citizens with incomes above a certain threshold. (This provision, which effectively eliminated the universality principle, set a precedent the Chrétien government would come to regret. A decade later, it was the provinces which began using the clawback mechanism to undermine the benefits of federal tax initiatives designed to improve the status of low income individuals and families.) The Mulroney Conservatives’ underlying ambivalence towards the welfare state was also evident in their handling of the national unity file. While the Liberal government’s 1982 constitutional amendment did not include any measures directly affecting federal-provincial jurisdiction, the two subsequent attempts at constitutional reform by the Mulroney government did. Although the failed Meech Lake and Charlottetown Accords were primarily intended to placate Quebec on other matters, both agreements contained provisions that specifically addressed national social programs. In effect the government was attempting to constitutionalize a further decentralization of responsibility for these programs through the virtual elimination of minimum national standards in favour of much less stringent ‘national objectives’ and guidelines. Opposition to this provision was substantial. In the case of the Charlottetown Accord, concerns about the future of the social safety net proved a major factor in its demise. These highly visible failures of executive federalism had consequences. By 1993 there was a widespread public perception that Canadian federalism itself was dysfunctional and the national social safety net was in tatters. Opinion polls showed increasing unhappiness with both levels of government over their apparent inability to agree on change. Public distaste for intergovernmental ‘squabbling’ was so strong that opposition leader Jean Chrétien and the Liberal party actually campaigned in 1993 on a promise to make no further attempts at constitutional reform. Instead they pledged Canadians would see a return to a more conciliatory relationship between Ottawa and the premiers, with administrative negotiations replacing constitutional bickering. The subsequent victory of the Liberals was generally considered to be partly due to their promise that constitutional reform would be shelved (Frizzell et al. 1994). While more harmonious federal-provincial relations were an important part of the Liberals’ platform in 1993, the transfer of responsibility for several federal programs to the provinces was not. Yet this occurred

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shortly after the Chrétien government took power. Traditionally supportive of a strong role for the central government in Canadian federalism, the majority of Liberal party members had continued to follow Trudeau’s vision during the years in opposition, first rejecting the Meech Lake Accord and then electing a new leader, Jean Chrétien, who was seen to be cut from the same cloth as his former mentor. As a result, the Chrétien government’s seeming willingness to follow in the decentralizing footsteps of the Mulroney Conservatives once in power was both surprising and unnerving for many. Several analyses of the Liberal record since 1993 have attempted to explain this apparent about-face as a consequence of changing economic realities. One of the most commonly cited causes is the North American Free Trade Agreement. Another is the pervasive nature of globalization, epitomized in the Canadian context by capricious money markets, increased foreign ownership and unfavourable WTO decisions which appeared to diminish the power of the national government. This argument concludes the Chrétien Liberals were merely bowing to the inevitable, a line of thought most enthusiastically promoted by those with a neoliberal predilection for reducing the overall role of the state. There are several problems with this interpretation of the Liberals’ actions. One obvious shortcoming is that it overlooks the importance of the national unity debate and the 1995 referendum. A more serious concern is its failure to account for the proactive approach to social policy taken by the same Liberal government since 1997. An alternative explanation offered here suggests, first, that the Chrétien Liberals’ apparent support for decentralization in their first mandate was not prompted by a resigned acceptance of international economic forces beyond their control. Instead, it should be seen as part of a deliberate strategy to respond to three unexpected developments confronting them when they took office, namely: – the massive federal deficit and debt inherited from the Mulroney government; – the resurgence of Quebec separatism after the failure of the Charlottetown Accord; – the collapse of the traditional federal party system and rise of two regionally-based, ideologically-grounded parties. This alternative interpretation also suggests the trend towards decen-

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tralization, resulting as it did from expediency rather than preference, was expected to be temporary. That this did not prove to be the case – at least in terms of the traditional approach to social policy – is due to the unanticipated consequences of this same strategy, even though it was successful in achieving the government’s immediate objectives. Hence with the deficit slain and the separatist movement in disarray, the Chrétien government nevertheless found itself unable to resume its previous leadership role in reinforcing the welfare state through national programs, and was forced to devise new ways to achieve its objectives. The following sections outline in detail the factors leading to the original federal decentralization strategy, the many unilateral measures taken by the Chrétien government since 1997 in the face of provincial resistance, and the impact of the provincial response on these new initiatives. New Players, New Issues: The Origins of Collaborative Federalism Like the expectation of improved federal-provincial relations, the return to power of the Liberal party in 1993 was accompanied by an expectation that the welfare state would be reinforced and expanded. The party’s celebrated Red Book contained several proposals for new social programs, including the introduction of national pharmacare and home care programs and the creation of a national child care plan. Yet almost immediately after assuming power the Liberals began to backpedal on these proposals. The magnitude of the deficit and debt posed a major problem for their agenda. It quickly led Jean Chrétien and his finance minister, Paul Martin, to conclude their first priority should be deficit reduction. Their subsequent drive to eliminate the deficit resulted in an unprecedented cost-cutting exercise far exceeding anything the Mulroney government attempted. Although major cuts were made to the federal public service and government agencies to achieve this objective, Martin and his advisers concluded, like the Conservative minister of finance, Michael Wilson, before him, that the only federal spending envelopes large enough to make a serious dent in the deficit were the transfers to provinces and individuals for social programs. Unlike the Mulroney Conservatives, however, the Chrétien government attempted to cushion the blow of further reductions to the provinces. Mindful of their campaign promise to maintain good relations with the premiers, they presented their plan for reduced federal transfers within the con-

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text of a new federal responsiveness to provincial concerns. Their plan, Martin stressed, was a direct response to the premiers’ long-standing demands for greater certainty in funding and greater administrative discretion in the spending of the funds. The February 1995 federal budget therefore made a major and unexpected change in the funding formula. It eliminated both the Established Program Financing and Canada Assistance Plan legislation and conditional programs and replaced them with a new comprehensive form of block funding called the Canada Health and Social Transfer (CHST). This plan was to be largely unconditional. Funding levels were to be guaranteed for the five-year period. The changes also left the provinces with great discretion as to how the funds they received were to be divided between health care, welfare, and post-secondary education. At first glance this appeared to be a clear-cut example of further decentralization, but several premiers were quick to note that the federal government had taken this action unilaterally. Nor did they ignore Paul Martin’s highlighting the federal role in safeguarding national standards. Although Martin took great pains in his budget speech to emphasize that the provinces would receive an absolute increase in funding every year, the premiers pointed out they would receive less in total under the new CHST than if the existing system had been left in place. Many questioned why the federal role in setting standards should remain dominant in the face of this fiscal withdrawal. Over the next several years the premiers were faced with rising health care costs while undergoing their own cost-cutting exercises in the name of deficit reduction. For some the problem was aggravated by their decision to voluntarily decrease their revenues through tax cuts, while other provinces suffered revenue declines due to the cyclical nature of their resource-based economies. Either way, many premiers were faced with a significant political problem as anxious citizens responded critically to media coverage of overcrowded hospitals, lengthy delays for surgery, and emergency room horror stories. Although there were many who argued that the federal deficit had been eliminated primarily by downloading to the provinces (Hobson and St-Hilaire, 2000; Osberg, 2000), the fact remained that by 1997 the Chrétien government had declared victory on the deficit front and was projecting its first surplus. With the federal coffers replenished and the Liberals facing an imminent election, the premiers seized the opportunity to renew their criticism of the decline in federal funding for health

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care. They openly challenged the government’s right to enforce national standards when it was effectively withdrawing from the field. As Ontario premier Harris put it, ‘He who pays the piper calls the tune.’ As a result of this criticism the Liberals announced a major infusion of cash for health care at the beginning of the election campaign, a ploy widely ridiculed as opportunistic and predictably described as insufficient by the premiers. Nevertheless the Liberals were re-elected with another majority, partly due to their success at eliminating the deficit and partly due to the continued lack of credible national opposition parties (Frizzell and Pammett, 1997). Although it played into the Liberals’ hands during this election campaign as well, the collapse of the other mainstream parties in 1993 was the second unprecedented development that had posed a major problem for them on coming to power. The 1993 federal election had effectively marked the demise of the traditional postwar three-party system. The Conservatives and New Democrats had seen their representation in the House of Commons plummet to single-digit levels. From the ashes of the Conservative party two new regionally based protest parties emerged – the Bloc Québécois and the Reform party – to become the official opposition and the third-largest party in Parliament respectively. Not only did this new configuration of five parties complicate the procedural aspects of the parliamentary process, but the two new parties brought new concerns to the policy mix. It is important to note that both regional parties favoured a more decentralized federation compared with the traditional parties. The raison d’être of the Bloc was, of course, to promote Quebec separation, but the Reform party also stressed the need for greater provincial autonomy as a solution to the problem of western alienation. The federal government therefore found itself isolated in Parliament, unable to call on either opposition party for support as the prospect of another Quebec referendum loomed large. Perhaps even more significant was the new parties’ ideological divergence from the norms of the postwar era. On the one hand, the Bloc was supportive of the social safety net but opposed to Ottawa’s involvement in Quebec jurisdiction in any way other than transferring funds. National standards were suddenly not an acceptable trade-off for federal largesse. On the other hand, the Reform party espoused a strain of neoliberal political thought new to Canadian politics, heavily influenced by developments south of the border such as the emergence of the New Right, Newt Gingrich, and the

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Contract with America. Reform thus represented an unprecedented ideological opposition to the welfare state. This opposition was compounded by the unexpected resistance to the Liberals’ new social policy proposals of two of the largest and wealthiest provinces, Alberta and Ontario, which had elected neoliberal governments similar to Reform in 1993 and 1995 respectively. The problem this second development posed for the Chrétien Liberals became apparent soon after the 1993 election when they attempted to implement their child care promise. The Red Book had promised they would implement a national program within three years of their election, subject to the agreement of a sufficient number of provinces to sign on to their proposal, but the Liberals were first rebuffed by the Klein government in Alberta and then by the Harris government in Ontario. The latter not only rejected the federal proposal for a national plan but began implementing cutbacks to its existing child care facilities. The Liberals had taken Ontario’s participation for granted, given its long record of support for the welfare state under previous provincial governments of all political stripes. With neither Ontario nor Alberta onside, the prospects for a national plan quickly faded and the project was essentially abandoned. Their refusal to participate in new social policy initiatives was only the beginning. Both the Harris and Klein governments took every opportunity to communicate their opposition to many aspects of the existing social policy framework. Their concerns with efficiency and cost effectiveness, hammered home through the very public forum of the premiers’ conferences, began to have an impact on the political discourse of federal actors including the Chrétien Liberals. As federal intergovernmental affairs minister Stéphane Dion (2000: 60) declared, ‘Collaborative arrangements are increasingly being used ... as a management tool to share power and authority with the government’s partners in making decisions. In our view, they have the potential to be an innovative, cost-effective and efficient way of delivering services and programs.’ For many critics of the federal deficit-reduction strategy, a major concern was that responsibility for social programs was not only being downloaded to the provinces but also was being eroded through transfers to the private sector through the increasingly popular mechanism of ‘partnerships’ (Boismenu and Jenson, 1999). It therefore surprised almost no one when Ralph Klein became the first premier to actively propose private-sector healthcare alternatives, a move the federal government was quick to attack as a violation of the Canada Health Act,

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but equally quick to withdraw in light of varying legal opinions and renewed provincial criticism of reduced federal funding. The third unexpected development confronting the Chrétien Liberals soon after their 1993 election was the resurgence of Quebec separatism. Resulting from the failure of the Charlottetown Accord and subsequent collapse of the federal Conservative party, it was reinforced by the unprecedented presence of a separatist party in Ottawa under the leadership of former Mulroney Conservative cabinet minister Lucien Bouchard, and by the hardline separatist position of Quebec premier Jacques Parizeau of the Parti Québécois. With limited resources at its disposal in the first years of its mandate, the simplest way for the federal government to demonstrate greater flexibility with the provinces – and thus appease Quebec through nonconstitutional means – was to address some of the long-standing concerns about federal intervention in policy areas they considered to be essentially provincial jurisdiction. This new collaborative approach saw the federal government voluntarily divest itself of its programs in the areas of tourism, mining, forestry, housing, and manpower training, by signing bilateral agreements with provinces. Although the Liberals believed this would go a considerable distance towards placating the premiers, it must also be noted that the federal government would save hundreds of millions of dollars in annual program spending. This attempt to appease the provinces failed abysmally in the one province where it mattered most; the vast majority of Quebeckers were not merely unappreciative but largely unaware of the federal gesture. The separatist government of Quebec, perhaps sensing unprecedented federal vulnerability in light of these transfers, moved within the year to launch another referendum on sovereignty. Premier Parizeau’s decision to hold a second referendum on separation in 1995 was initially viewed by most federalists as a foolhardy move, driven more by ideology than any realistic chance of victory. However this attitude soon changed. Federal nonchalance faded quickly as highly publicized infighting emerged among provincial federalists leading the no forces. Their open disagreement, coupled with the decision to discourage former prime minister Pierre Trudeau from participating in the campaign, led to a situation in which the federal side narrowly avoided snatching defeat from the jaws of victory. The impact of the close call on the visibly shaken prime minister was substantial and long-lasting. Indeed, many Liberal insiders subsequently referred to Chrétien’s obsession with the national unity file after 1995

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and the degree to which that issue coloured his approach to almost all policy areas (Martin, 2003). Perhaps the most important consequence of the Liberals’ brush with defeat was the subsequent division of the federal cabinet into two camps – those who believed a new hardline approach towards Quebec was necessary, and those who argued for further decentralization as a form of appeasement. Initially the appeasers appeared to have won the day, as evidenced by the hasty introduction into Parliament of a bill guaranteeing that the federal government would not attempt further constitutional change without the consent of Quebec or any of the other regions. The bill had no constitutional force but it did lead to a declaration by the other nine provincial premiers in Calgary in 1996, indicating they too would support this legislation. However, the cost of their support for this largely symbolic document was high. In exchange for this show of solidarity the federal government agreed to meet with the provinces to discuss the funding and delivery of national social programs. The Calgary Declaration did not capture public imagination in Quebec or anywhere else. Nor did it have any demonstrable effect on the government of Quebec. As a result, supporters of the hardline faction in the federal cabinet gradually succeeded in gaining the upper hand and promoting their own solution, which came to be known as Plan B. This included a public education campaign on the part of intergovernmental affairs minister Stéphane Dion, to set the record straight on a variety of legal and historical issues about which, from the federalist perspective, the separatists had long misled ordinary Quebeckers. It culminated in federal legislation introduced by the prime minister himself to establish the ground rules for any future referendums, legislation popularly known as the Clarity Bill. Meanwhile the provinces had not been idle. The problem of Ottawa’s cutbacks to social programs already had been the lead topic at the August 1995 annual premiers’ conference. Shortly thereafter a Ministerial Council on Social Policy Renewal and Reform was struck, which presented a progress report to provincial premiers in June 1996. The report called for restraint of the federal spending power, clarification of jurisdictions, and measures to ‘minimize overlap and duplication of programs with a view to more efficient and responsible management.’ The premiers endorsed the report and then invited the federal government to join the council. Since its participation was a direct quid pro quo for provincial cooperation on the Calgary Accord, the government could hardly refuse. By now, however, the mandate of the council had been quietly expanded by the premiers from a review of existing prac-

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tices in social programs to a broader one in which the concept of a ‘social union’ was being promoted as a companion to the ‘economic union’ which had been the organizing principle of the Mulroney government in the previous decade. (In retrospect, however, the premiers might have done well to remember that it was the Chrétien government that brought the Agreement on Internal Trade to fruition in 1994, an agreement which effectively resulted in the loss of provincial decisionmaking power to the federal level.) To all appearances the provinces were driving this social union agenda, demanding recognition as equal partners with the federal government. ‘Managing interdependence’ became an integral element of the new discourse of intergovernmental relations, and all references to Ottawa as the senior level of government were eliminated. When the council’s 1997 report provided options for joint federal-provincial decision-making and a dispute resolution mechanism, it was endorsed immediately by all the provinces except Quebec. Then in 1998, Quebec’s premier (now Lucien Bouchard) agreed to join the discussions and all of the provinces as well as the federal government announced that they would seriously work towards the adoption of a Framework Agreement. According to Saskatchewan premier Roy Romanow, a strong proponent of the collaborative federalism paradigm, the achievement of such an agreement was imperative for the future of the social union. ‘We are at a Rubicon,’ he declared at the start of their meetings in Saskatoon in 1998, indicating his desire to see an entirely new form of consensual decision making replace the ‘old, outdated confrontational’ style of intergovernmental relations. Provincial consensus was reaffirmed in January 1999 in Victoria and the negotiations quickly shifted to Ottawa, where a final text of the agreement was hammered out and signed by nine provinces and the federal government on 4 February 1999. (Although Quebec did not sign, it agreed in ambiguous language to participate in the ongoing process resulting from the deal.) At the signing ceremony, ecstatic premiers and visibly pleased federal ministers announced the SUFA represented the beginning of a new era in federalprovincial collaboration. The Social Union Framework Agreement: Epitome of Collaborative Federalism? At first glance, then, it appeared the provinces had won the battle and made considerable inroads in their drive for a greater role in social

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policy. By the same token it appeared the federal government was abandoning its practice of using social policy to counteract the decentralizing trends of the national unity file. Certainly this was the impression given by Stéphane Dion, who spoke enthusiastically about collaboration on the occasion of the signing of the SUFA. The minister declared the agreement ‘represents a new and promising approach for managing interdependence ... It reflects the need for the two orders of government to work together, while respecting their constitutional jurisdictions.’ Dion even went so far as to criticize opposition to collaboration. He noted (correctly) that such opposition ‘comes from proponents of centralization, who believe the government of Canada should regain a greater role in a number of areas that are now in the hands of the provinces,’ and he stressed that the government was ignoring this opposition in favour of the collaborative approach. Many of the key provisions of the SUFA seemed to confirm his view. The preamble actually stated ‘the following agreement is based upon a mutual respect between orders of government and a willingness to work more closely together to meet the needs of Canadians.’ A section entitled ‘Working in Partnership’ took the collaborative rhetoric further, noting ‘The Ministerial Council has demonstrated the benefits of joint planning and mutual help through which governments share knowledge and learn from each other.’ In that spirit the signatories agreed to ‘undertake joint planning, share information and collaborate on the implementation of joint priorities.’ Perhaps more presciently, they also agreed to ‘give one another advance notice’ prior to the implementation of a major change in a social policy program or the implementation of new social policies and programs ‘likely to substantially affect other governments or the social union.’ Last, but hardly least, the two levels agreed to a series of provisions on ‘Dispute Avoidance and Resolution’ which, while vague, gave the clear impression that the federal government and the provinces would eventually be bound by the decisions of an arm’s-length institutional arbiter. One section of the SUFA was a direct response to the growing concerns about the so-called democratic deficit in intergovernmental relations. As mentioned above, these concerns first arose during the Mulroney years, when constitutional negotiations among political elites behind closed doors had been widely discredited. Remedial measures to enhance credibility were grouped together under the self-explanatory title ‘Informing Canadians – Public Accountability and Transparency.’ At the time, the federal government made clear its intention to

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use this section to achieve the upper hand with the provinces, forcing them to account for their spending of federal transfers. This plan quickly went awry. While federal negotiators succeeded in inserting a requirement that provinces ‘use funds transferred from another level of government for the purposes agreed and pass on increases to residents,’ they failed to establish any provision for an arm’s-length review of provincial spending. Instead, largely due to fierce resistance from Ontario and Alberta, it was left to each province to report voluntarily to its own residents on its allocation of resources, a move most critics believed would eliminate any real hope of accountability or transparency. For the SUFA’s major opponents, the most serious concession to the provinces was the section related to the federal government’s spending power. Not only did the federal government promise to consult with provinces before making changes to existing programs, but it agreed there would be no new nation-wide social programs in ‘health care, postsecondary education or social assistance ... without the agreement of a majority of provincial governments.’ A similar provision affected direct federal spending. Any new initiatives involving transfers to individuals were to be preceded by a three-month notice to the provinces and an offer to consult. However, there were also measures in the agreement which some viewed as concessions on the part of the provinces. In a preamble to the section outlining limitations on the federal spending power, the provinces acknowledged that ‘The use of the federal spending power under the Constitution has been essential to the development of Canada’s social union.’ They also agreed that ‘Conditional social transfers have enabled governments to introduce new and innovative social programs, such as Medicare, and to ensure they are available to all Canadians.’ Shortly after the adoption of the SUFA, Stéphane Dion referred to these concessions as a major breakthrough for the federal government, stating that they constituted recognition by the provinces of the validity of federal interventions in areas of exclusive provincial jurisdiction. At the same time Dion was unable to provide specific examples of how this recognition might prove useful in future. If the federal government were to attempt to introduce new programs such as pharmacare or home care, for example, he admitted the requirement for majority provincial agreement for any such new programs would surely trump the historical recognition of the spending power. Most academic commentary on the SUFA in the immediate aftermath of its signing reinforced the participants’ views that collaborative federalism was in the ascendancy. As political scientist Roger Gibbins (2000:

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24) put it, ‘Informing virtually every clause of the [Framework Agreement] is the commitment to consult with one another before acting, and to continue this process of consultation while acting.’ There was less consensus on what this collaborative approach might mean for the centralization-decentralization debate. A few observers, almost exclusively from Quebec, saw the agreement as a massive power grab on the part of the federal government (Noël, 2000). Others, such as Boismenu and Jenson, argued that greater decentralization was likely to evolve with the SUFA’s implementation, particularly if an independent dispute resolution institution was ever adopted as planned. According to them, If such an institution were to be established and rendered functional, Canadian federalism would look very different from the postwar model, characterized by Ottawa’s leadership and provincial subordination. It would, in effect, formalize intergovernmental relations that blur constitutional distinctions. Principles of subsidiarity and processes of consultation and negotiation would replace the Constitution as the mechanism that determines policy responsibility. (2000: 72)

Another common view of the SUFA’s possible implications was that it would likely lead to an overall decrease in governmental authority and a further transfer of responsibility to the private sector and the markets. For the neoliberals, this would naturally result from the inevitable decline in the role of governments in an era of economic globalization. This view was enthusiastically promoted by Thomas Courchene, who concluded the social union will constrain Parliamentary flexibility, even sovereignty ... Aspects of sovereignty will become shared among the provinces and Ottawa ... Perhaps an even better way to express the result is that sovereignty will be transferred to individual Canadians ... This is increasingly what globalization is all about – a mushrooming array of international and domestic ‘contracts’ among governments and between governments and private sector agents. (2000: 12)

A final provision of the SUFA which went largely unnoticed was the agreement to conduct a full-scale review of its implementation by the end of the third year of operation. Five years later there is little evidence that such re-evaluation is taking place. Nor has any progress been made on a dispute resolution mechanism. Indeed, recent criticism by several

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provincial premiers has focused on the federal reluctance to discuss the implementation of this mechanism. On the other hand, only the federal government has been a keen participant in the reporting mechanisms to increase accountability and transparency. As predicted by critics at the time, the provinces’ insistence on voluntary self-reporting has meant that no meaningful progress has been made. Finally, despite the positive language describing provincial participation in the various framework agreements on child care and social housing, the reality has been very different. Failure to take up federal funding offers, and/or consistent use of these funds for unintended purposes, has been the provincial rule rather than the exception. These facts alone would suggest the SUFA’s impact has been minimal and intergovernmental relations far less collaborative than originally anticipated. One possible reason for SUFA’s failure was raised by one of its most ardent proponents, former senior federal bureaucrat Harvey Lazar. In his annual report on the state of the Canadian federation, Lazar (2000: 30) worried that ‘a crucial issue for the future of Canadian fiscal federalism is whether the concept of collaborative federalism can survive a period of federal government fiscal prosperity.’ Developments over the past five years provide persuasive evidence that Lazar was right to worry. The SUFA’s slide into obscurity can be attributed as much to the progress made by the federal government in eliminating the deficit as to the demise of Québec separatism and the dramatic reversal of fortunes of the Reform party. Yet even flush with cash, the federal government was not able to negotiate traditional agreements with the provinces on new national social programs. In the end it was forced to adopt a new unilateral approach to the evolution of social policy to achieve any meaningful strengthening of the welfare state. The New Federal Unilateralism When Ottawa signed on to the SUFA negotiating process in 1996 it was still fighting the deficit battle. It was also fresh from its brush with defeat in the Quebec referendum only months earlier and, desperate to have provincial backing for the Calgary Accord, it found itself at the mercy of the provinces on the national unity file. But while the next three years saw intensive federal-provincial negotiations taking place on the SUFA, a parallel set of developments was occurring which eventually enabled the federal government to move in a different direction as well.

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First, by 1997 the government’s fiscal situation had improved dramatically. The deficit was about to be eliminated and the 1997–8 budget projected significant federal surpluses for the foreseeable future. Second, the 1997 election did more than return the Liberals with another comfortable majority. It suggested the Reform party and the Bloc Québécois were doomed to remain regional protest parties with no potential for growth, and therefore no potential to seriously undermine Liberal hegemony as the only remaining national party. The snap election of 2000 seemed to deliver the death knell for both parties and, although they retained their status in the House of Commons, their influence on national debate was essentially eliminated. This was particularly the case for the Reform party. It had rapidly lost its remaining credibility when several caucus members defected to form a new political group in the House of Commons and another leadership race was launched soon after to replace Stockwell Day. Last, but hardly least, opinion polls between 1997 and 2001 demonstrated a dramatic decline in popular support for separatism in Quebec. This abrupt change of fortunes led to the resignation of Premier Bouchard, and the announcement by his successor, Bernard Landry, that separatism was ‘dead’ and there would be no third referendum in the foreseeable future. With the deficit eliminated, the menace of Quebec separatism removed and the opposition of the new federal parties neutralized, the Chrétien Liberals ought to have been in a position to implement much of the social policy agenda they had outlined in their 1993 Red Book. As they quickly discovered, however, the problem now was partly the SUFA itself, with its obligation to consult and collaborate before making major changes in existing programs and obtain provincial consent for new national programs. Mindful of these constraints, the Liberals first attempted to link their plans for national pharmacare and home care plans to the existing health care plan. This led to a series of negotiations on health care financing as health minister Allan Rock sought to purchase provincial cooperation for the plans by providing increased funding for health care generally. The failure of this approach, in which the provinces accepted the funding but refused to consider any new programs, was an obvious and distressingly public setback for the government. In addition, it was clear the positions of the Harris and Klein governments were unlikely to change. Not surprisingly, there was no further federal talk of national pharmacare and home care plans. These proposals, like

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the national child care plan, simply disappeared from the political radar screen of the Chrétien Liberals. But while the SUFA contributed to an impasse in creating new national social programs in the traditional sense, the Chrétien government was clearly determined to press on with its social policy agenda. Several significant social policy measures were put in place through unilateral federal initiatives providing funds directly to individuals, primarily through tax provisions and the creation of niche programs. This approach was actually begun by the Liberals once the deficit was eliminated and before the SUFA was concluded, and had led the provinces to push harder for guarantees of limitations on federal spending power during the SUFA negotiations. Their success in achieving that objective in the agreement was, however, undercut by these new federal measures, as was their visibility. The Chrétien government’s determination to pursue a proactive social policy agenda with or without the provinces was further demonstrated by the prime minister’s deliberate strategy of jettisoning the practice of regular first ministers’ conferences in favour of meetings of officials and ministers, thereby depriving the premiers of a platform. It was also apparent in the virtual disappearance of the SUFA’s chief supporter, Stéphane Dion, from the federal spotlight, as the finance minister and other federal ministers took centre stage to announce the new measures. The first and most prominent example of the new type of federal initiative, which American federal scholar John Kincaid (1999) has termed ‘the movement from places to persons,’ was the National Child Benefit (NCB). Although the issue of child poverty and possible supplements for the child tax benefit had been the subject of federal-provincial discussions for some time, the NCB was introduced in 1997 as a federal budgetary measure. Its objective was to supplement the social welfare benefits of low-income families. Ironically, it was deemed necessary to counteract increased levels of child poverty, a situation caused in large measure by reductions in provincial welfare rates and the elimination of various benefits after the implementation of the CHST.1 The NCB was viewed by some critics as the beginning of the end for national social programs. Others argued it was the only possible response of the federal government to a situation in which some key provinces were consistently opposing new programs. For supporters, unilateralism was seen as a positive end-run of provincial intransi-

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gence. The framework document eventually agreed to by provinces and signed in 2000 was typically vague, allowing each participant to spend matching funds on ‘initiatives that support the goals of the NCB.’ Nevertheless there was specific mention of the fact the provinces would ‘support the emerging national platform of income support’ the NCB was building and the federal minister, Jane Stewart, evidently believed progress was being made. The apparent success of the NCB led the federal government to conclude that a similar approach would not only allow for increased spending on other social programs despite provincial opposition, but would also heighten federal visibility. This, in turn, was seen to have an added benefit for the national unity file. The perceived success of the NCB not only led to repeated increases in its funding in subsequent federal budgets, but quickly spawned a raft of other federal initiatives. Over the next six years federal budgets introduced measures related to both welfare and post-secondary education. On the welfare side, Lifelong Learning accounts were introduced to promote the upgrading of workers’ skills. A variety of EI reforms, including the expansion of maternity leave, were also part of the federal package to improve access to and flexibility in the labour market. The most visible evidence of the federal government’s new unilateralism could be found in the area of post-secondary education. Having lost the ability to direct its transfer payments to specific programs with the advent of the CHST, the federal government could no longer influence the level of provincial spending on education any more than it could do so on welfare or health care. With education clearly a provincial matter, the option of providing funds for the operational costs of universities was not available. Instead students, academics, and researchers as well as universities benefited directly from several new federal transfers through the tax system. In addition, an innovative ‘foundation’ mechanism was developed that allowed surplus funds in one year to be allocated over several years. For students, the stated federal objective was to improve access and counteract the concerns of low and middle-income Canadians that post-secondary education was becoming unaffordable. As with welfare, the blended CHST funding had resulted in cuts to provincial spending on post-secondary education across the country. According to the 2004 CAUT Almanac on Postsecondary Education in Canada, the decade 1992–2002 saw cuts ranging from 43 per cent in New Brunswick to 28 per cent in Alberta, 25 per cent in British Columbia and 17 per cent in Ontario. A dramatic but predictable increase in university tuition fees

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followed in virtually every province except Quebec. Unable to reverse this trend directly, the Liberals established the Canada Millennium Scholarships, the Canada Graduate Scholarships, the registered education savings plan, and the Canada education savings grant. In the 2004 federal budget they continued this approach with the creation of the Canada Learning Bond and the provision of up-front grants for first year post-secondary students from low-income families as well as students with disabilities. Changes were also made to update and enhance the Canada student loans program. Decreased provincial funding for post-secondary education was also having a serious impact on the state of the universities and their faculty. Cutbacks in operational grants meant reduced funding for salaries, maintenance, and the purchase of state of the art research equipment. Even library acquisitions were declining significantly as a result of the shortfalls. Concerned that Canada was falling farther behind in research and development at a time when economic competitiveness required a greater investment, the Chrétien government introduced its own measures to circumvent the provinces, this time by providing funding directly to promote academic research, upgrade university research facilities, and retain outstanding Canadian researchers at Canadian institutions. The new niche programs included the Canada Research Chairs and the Canada Foundation for Innovation as well as funds from the Canada Infrastructure Program. At the same time funding for the three research granting councils was increased substantially. Altogether federal spending on R&D increased from $150 million in 2001 to $1.9 billion in 2004–5. A somewhat different approach emerged in the area of health care, where transfers to individuals were not feasible. The federal government found itself constantly on the defensive in terms of provincial demands for additional funding, but virtually no provinces were living up to the voluntary reporting and accountability mechanisms called for in the SUFA. Unwilling to commit further funds through the CHST with no guarantee of their ultimate use, the Chrétien Liberals began allocating funds to the provinces for health care outside the CHST, and only for specific purposes such as costly medical equipment or the hiring of additional nurses. Specific amounts were made available to each province for take up. As many outraged voters discovered a year after the first round of such funds had been offered, the Quebec government had not spent any of its available funds but had left them earning interest in a Toronto bank. Meanwhile the Harris government in Ontario had used funds earmarked for MRI’s and other costly medical equip-

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ment to subsidize shortfalls in hospital operating expenses, including such mundane items as laundry and lawn maintenance. Yet such revelations did little to damage the widespread perception that most of these federal initiatives were successfully accomplishing their objectives. With the heightened federal profile on the social policy agenda well established, and a third majority government in hand after the 2000 election, the Chrétien Liberals were even prepared to tackle the issues of child care and social housing once more. That same year some $2.2 billion in federal money was provided to the provinces over five years through the Early Childhood Development Agreement. The agreement was not limited to child care spaces, but was extremely flexible in terms of requirements for provincial spending. However, it was expected that each province would spend at least some of the money on child care spaces. In 2003, largely as a result of their unhappiness with the provincial response to the 2000 funding, an additional $935 million in federal funding was committed over the next five years for quality child care only. Similarly the 2001 federal budget reasserted Ottawa’s role in social housing after an absence of nearly a decade. At the time of its withdrawal as part of the ‘six sisters’ transfer of responsibility to the provinces, the Canada Mortgage and Housing Corporation (CMHC) had been funding nearly twenty thousand co-op and non-profit housing units. The years since then had seen few provinces pick up the slack, and some, such as Ontario, had cut their own funding for social housing by more than one-third. As a result, by 2001 the annual CMHC rental survey revealed very low vacancy rates, falling stock of rental units, and rising rents. This had led to increased evictions of working poor and growing numbers of homeless families. The 2001 budget provided $680 million over five years to provinces which matched federal dollars for the construction of new low-cost housing. It also introduced the Residential Rehabilitation Assistance Program (RRAP) to fix or upgrade existing housing stock. The 2003 budget made further offers to provinces, committing an additional $320 million over five years for new affordable housing and extending the RRAP program. In addition, a program designed specifically to address homelessness, the Supporting Communities Partnership, was introduced and given a startup budget of $270 million. Apart from the Quebec government’s protestations about the Millennium Scholarships, there was remarkably little public evidence of federal-provincial friction as a result of the new initiatives. With all provinces free to take up federal money while ignoring accountability mecha-

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nisms, extra revenue accruing to them through the clawback of new federal tax benefits, and some provinces simply refusing to sign bilateral accords under the framework agreements, this was perhaps not surprising. The Provincial Response: More Unilateralism Although the provinces were consulted on many of the federal initiatives, and in some cases signed on to framework agreements, their subsequent actions have demonstrated an increasing tendency to go their own way. On virtually every new federal policy initiative, at least some provinces have introduced their own taxation policies to offset the federal benefits either partially or completely. Nowhere is this situation more evident than in the case of the much heralded National Child Benefit. Since the measure was introduced in 1998 the federal government has paid out over $50 billion in benefits. All provinces but Newfoundland and New Brunswick have clawed back at least some of those benefits. Ontario under the Harris Conservatives clawed benefits back dollar for dollar. The framework agreement did not prohibit such clawbacks. Instead, it stipulated that any money retrieved by provincial governments in this way must be spent on other initiatives for low-income families. This also did not prevent a province from using the clawback money to fund an existing income support program, freeing up money it would have used to pay for the program for another purpose. The 2001 annual report of the National Welfare Council concluded: ‘The process is a little different in each jurisdiction but in the end it amounts to the same thing: provincial and territorial welfare officials siphoned off amounts equal to the supplement ... Between inflation and the clawback ... most welfare incomes for families lost value in the period since the National Child Benefit was introduced.’ A similar picture emerges with respect to post-secondary education, where some provinces clawed back the Millennium Scholarships. In Ontario provincial policies were sufficiently regressive that students began turning down federal scholarships because they would result in higher taxes and less income. In the case of Ottawa’s $680 million social housing initiative, several provinces did not take up the 2001 federal offer in part or in full. In fact, as the National Housing and Homelessness Network concluded, provinces generally scaled back spending in response to the matching program, with provinces outside Quebec spending $637 million less in 2002–3 than in the previous year. Equally revealing is the provincial response to the federal child care

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initiative. Although Ontario received $844 million, or 38 per cent of the total allocation from the 2000 Early Childhood Development Agreement, it did not create one new child care space. By 2002, when the federal government conducted its first SUFA review (a half-hearted, online-only effort), the Canadian Child Care Advocacy Association declared in a 27 September press release: ‘After two years of the ECDA, the child care community is in the best position to send the federal government a loud and clear message that SUFA and the resulting ECDA are NOT meeting the needs of children and families across Canada.’ Among the association’s most significant criticisms were the fact ‘there is no consistent federal/provincial/territorial agreement regarding the components, structure or timelines’ ... and ’the provincial territorial governments are not required to spend any of the ECDA funds on supporting or improving regulated child care.’ The result, they concluded, is ‘the majority of Canadian families continue to face a patchwork of services.’ While the 2003 budget originally committed additional funds for child care spaces only, the range of options for provincial spending was actually increased in the negotiations that followed. In the end it was agreed provinces could spend the money on ‘information and referrals’ and also delay spending the federal funds until a later date. Yet, despite the fact only two provinces – British Columbia and Alberta – met even the minimum reporting requirements that they spend federal funds on some aspect of early childhood development, the next instalment of $150 million in the five-year plan was dispersed to all provinces on 1 April 2004 by the federal government as planned. On the subject of health care few if any federal politicians would deny there is less consistency in the application of the Canada Health Act today than a decade ago. Despite the early promise of the Chrétien government’s 2003 health care accord that provided additional funding and renewed guarantees of provincial accountability, several provinces apply user fees and some, such as Alberta and Quebec, regularly test the limits of federal patience by approving stand-alone private clinics for a variety of procedures while others, notably Ontario, even contemplated the development of so-called ‘P3’ hospitals before the election of the McGuinty government reversed that decision. Meanwhile a central recommendation of the Romanow Commission, the creation of a National Health Council, remains an elusive and divisive goal despite the 2003 agreement. Precisely because the transfer to individuals approach is less applicable to the health care file, and also because provinces have

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ignored even the limited conditions attached to targeted federal funding over the past three years, this has been the area in which Canadians have become most aware of ongoing federal-provincial conflict and can clearly see the negative impact on the delivery of service. Conclusion The Chrétien government willingly adopted the collaborative federalism format to appease provinces after the collapse of executive federalism, to improve intergovernmental relations during a time of fiscal restraint and challenge to national unity. Little was expected in the way of concrete initiatives while the government put its own house in order and addressed the unity challenge. Once these challenges were overcome, however, there is considerable evidence to suggest the Liberals expected to resume their leadership role in the development of national social programs. Their inability to do so by traditional means, through negotiation of federal-provincial agreements with minimum standards, was unexpected. One crucial consequence of this miscalculation has been a ten-year delay in implementing the next generation of social policy architecture, such as national child care, home care, and pharmacare plans. Another has been the federal government’s aggressive pursuit of new social policy measures through alternative means. Transfers to individuals and organizations have replaced transfers to the provinces as the growth area of federal expenditures. Federal unilateralism has become the order of the day, using the tax system as the principal delivery mechanism. This in turn has produced a growing tendency on the part of the provinces to act unilaterally as well, frequently off-setting the benefits of the federal initiatives. In short, the past five years have clearly demonstrated collaborative federalism has been more myth than reality. The real successor to executive federalism is a new era of dual unilateralism in which the two levels of government have operated largely independently of each other on most major social policy initiatives, despite the rhetoric of framework agreements. The consequences for the welfare state have been significant. In some cases this dual unilateralism has actually led to a decline in the overall benefits received by those citizens most in need. It has also led to increased provincial reliance on partnerships with the private sector, as many experts had feared. More significant still is the fact it has led to a patchwork quilt of benefits across the country, rather than any truly

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national programs. And, while some federal niche programs have successfully addressed specific problems, they have been unable to compensate for the decline in benefits and services provided through existing programs such as health care and welfare. The degree of this regression has been partly masked until recently by a strong economy. However, with the advent of a period of more restrained growth the cracks in the unilateral approach to social welfare are likely to become more apparent. There were signs the Chrétien government was becoming aware of these developments. The 2003 federal budget, under the auspices of finance minister John Manley, moved to address one of the most obvious problems of accountability by removing welfare and post-secondary education from the CHST and creating two separate accounts, the Canada health transfer and the Canada social transfer. Although this may prove useful in terms of establishing some indicators for provincial health care spending, without a further separation of the welfare and post-secondary education components, the impact of this measure will undoubtedly be less than ideal. More significantly, the arrival of Paul Martin as prime minister has introduced new political considerations which will further complicate any federal initiatives. It might have seemed likely the federal government’s determination to proceed unilaterally when necessary would be one of the few aspects of the Liberal government’s strategy that would not alter with the change in leadership. Certainly Martin indicated his intention to pursue the next round of social policy programs supported by his predecessor. However, Martin’s repeated commitments to consult with provinces before making further moves on his cities agenda, especially with respect to his gas tax commitment, also provided an early indication that his government would be inclined to pursue more vague federal-provincial agreements rather than an aggressive interventionist and unilateral approach. As Martin’s leadership opponent, Sheila Copps, pointed out in one of the leadership policy debates in the summer of 2003, his approach might result in the provinces clawing back the municipalities’ newfound revenues in much the same way as had occurred with welfare and postsecondary education. Yet Martin categorically rejected her alternative of direct federal funding to municipalities or cooperatives through CMHC, something which had been common during the early years of federal housing strategy. The reasons for this difference in approach are grounded in the new

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prime minister’s differing vision of Canadian federalism. Simply put, Martin is not a Liberal in the Trudeau/Chrétien tradition. His genuine commitment to a more decentralized approach to federal-provincial relations was evident as early as 1990, when his defeat at the hands of Jean Chrétien in a previous leadership race was directly connected to his support for the Meech Lake Accord. With his subsequent support for the Charlottetown Accord and reservations about the Clarity Bill, as well as his recruitment of former separatists such as Jean Lapierre as Liberal candidates in Quebec in the 2004 federal election, his willingness to allow all provinces, and especially Quebec, even greater discretion on social policy should not have come as a surprise. As a result, while the Martin minority government has identified health care and child care as two of its priorities, its method of addressing these programs has actually exacerbated the growing inequities in what is rapidly becoming the patchwork social safety net. The prime minister’s election commitment to ‘solve’ health care for a generation led him to personally negotiate a new deal with the provinces in which some $41 billion, far more than was originally contemplated, will be transferred to the provinces over ten years. In exchange, the provinces have agreed to a vague set of accountability measures that may well prove less significant than hoped. Under the agreement the provinces are merely required to develop comparable indicators to measure access to doctors and diagnostic equipment as well as waiting times, rather than the ‘common’ or ‘uniform’ measures recommended by the Romanow Commission. Similarly, provinces are only obliged to develop voluntary benchmarks for waiting times as of December 2005, with multi-year targets for priority benchmarks to be adopted by the end of 2007. Most important, in exchange for the participation of Quebec in the national accord, Martin has essentially given that province its portion of the funding without conditions or penalties, and recognized that other provinces could negotiate separate side deals as well. Martin’s defence of his health care accord as a legitimate manifestation of asymmetrical federalism predictably touched off a firestorm of controversy within the federal Liberal party. From former finance minister John Manley and financial institutions minister Maurizio Bevilacqua to Pearson policy adviser Tom Kent and Trudeau adviser Jim Coutts, their concerns were uniformly focused on the perceived abandonment of the concept of national programs. From Kent’s description of the process as ‘sugar daddy federalism’ to former Trudeau cabinet minister and Liberal senator Serge Joyal’s claim that Martin ‘has opened a

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Pandora’s box,’ the criticism has centred on the government’s failure to maintain a strong national presence in the social union. One of the most telling analyses has come from a former pollster for the Mulroney government, Alan Gregg. Mr Gregg argues that the prime minister is creating ‘a Frankenstein federalism ... that will lead to a patchwork of unequal national programs and push Quebec closer to full independence’ (‘Quebec’s Final Victory,’ The Walrus, February 2005). Events since the negotiation of the health care accord appear to lend credence to at least the first part of Gregg’s conclusion. Taking his cue from the prime minister, social development minister Ken Dryden speculated in mid-February 2005 that the federal government would be willing to establish separate child care agreements with individual provinces if a consensus on a national program could not be reached. This was soon followed, after a fractious and public dispute, by the federal government signing unprecedented bilateral agreements on equalization payments and offshore oil revenues with Newfoundland and Nova Scotia. These agreements, in turn, have led Saskatchewan and Ontario to argue for a similar deal on the one hand, and a re-examination of the entire equalization formula on the other. In a move reminiscent of the provinces’ unilateral approach to the social union after the Calgary Accord, Ontario premier McGuinty announced in late February 2005 the creation of a panel of ‘pre-eminent’ Canadians to examine the equalization issue, to be established by the provinces under the auspices of the premiers’ Council of the Federation which McGuinty chairs. With the federal government predicted to run considerable surpluses for the next several years, the degree of inequity resulting from such agreements may be less significant than predicted. The long-term consequences of the Martin government’s approach – for the social union and, ultimately, for national unity – may be far greater.

NOTE 1 In Ontario alone, welfare rates were cut by 21.6 per cent between 1995 and 2003, while child poverty increased by 41 per cent since 1990.

REFERENCES Aucoin, Peter. 1988. ‘The Machinery of Government: From Trudeau’s Rational Management to Mulroney’s Brokerage Politics.’ In Prime Ministers and

From Collaborative Federalism to the New Unilateralism 145 Premiers: Political Leadership and Public Policy in Canada, ed. Leslie Pal and David Taras. Scarborough: Prentice-Hall. Baker, Maureen. 1997. ‘The Restructuring of the Canadian Welfare State: Ideology and Policy,’ Social Policy Research Centre, Discussion Paper No. 77. Bakvis, Herman, and Grace Skogstad, eds. Canadian Federalism: Performance, Effectiveness, and Legitimacy. Toronto: Oxford University Press, 2002. Breton, Albert. 1989. ‘The Theory of Competitive Federalism.’ In Federalism in Canada, ed. Garth Stevenson. Toronto: McClelland and Stewart. Boismenu, Gerard, and Jane Jenson. 1999. ‘A Social Union or a Federal State?’ In How Ottawa Spends 1998-99, Balancing Act: The Post-Deficit Mandate, ed. Leslie Pal. Toronto: Lorimer. Brock, Kathy. ‘The End of Executive Federalism?’ In New Trends in Canadian Federalism, ed. François Rocher and Miriam Smith. Peterborough: Broadview Press, 1995. Cameron, David, and Richard Simeon. ‘Intergovernmental Relations in Canada: The Emergence of Collaborative Federalism.’ Publius 32, no. 2, Spring 2000. Courchene, Thomas. 2000. ‘A Mission Statement for Canada,’ Institute for Research into Public Policy, Policy Options. Dion, Stéphane. 2000. ‘Collaborative Federalism in an Era of Globalization.’ In Collaborative Government: Is There a Canadian Way? ed. Susan Delacourt and Ed Lenihan. Institute of Public Administration of Canada, New Directions No. 6. Frizzell, Alan, et al., eds. 1994. The Canadian General Election of 1993. Ottawa: Carleton University Press. Frizzell, Alan, and Jon Pammett, eds. 1997. The Canadian General Election of 1997. Toronto: Dundurn Press. Gibbins, Roger. 2000. ‘Taking Stock: Canadian Federalism and Its Constitutional Framework.’ In How Ottawa Spends 1999–2000 – Shape Shiftin: Canadian Governance Towards the 21st Century, ed. Leslie Pal. Toronto: Oxford University Press. Harmes, Adam. 2004. The Return of the State. Toronto: Douglas and McIntyre. Hobson, Paul and France St-Hilaire, ‘The Evolution of Federal-Provincial Fiscal Arrangements: Putting Humpty Together Again.’ In Canada: The State of the Federation 1999/2000, ed. Harvey Lazar. Kingston: Institute of Intergovernmental Relations, McGill-Queen’s University. Kincaid, John. 1999. ‘De facto Devolution and Urban Defunding: The Priority of Persons Over Places.’ Journal of Urban Affairs 21, no. 2. Lazar, Harvey. 2000. ‘The Social Union Framework Agreement and the Future of Fiscal Federalism.’ In Canada: The State of the Federation 1999/2000.

146 Brooke Jeffrey Martin, Lawrence. 2003. Iron Man: The Defiant Reign of Jean Chrétien. Toronto: Viking. Noel, Alain. 2000. ‘Without Quebec: Collaborative Federalism with a Footnote?,’ Institute for Research into Public Policy Working Paper, vol. 1, no. 2. Osberg, Lars. 2000. ‘Poverty Trends and the Canadian Social Union.’ In Canada: The State of the Federation 1999/2000.

6 Aboriginal Peoples and the Crown in Canada: Completing the Canadian Experiment greg poelzer and ken coates

At the beginning of the twenty-first century, the Canadian polity remains incomplete. Few Canadians fully appreciate or realize that although the three territories lying north of the 60th parallel possess much greater devolved authority than thirty years ago, the hundred thousand residents who occupy 45 per cent of Canada’s land mass do not enjoy the same constitutional right of regional self-government that Canadians who reside in the ten provinces south of the 60th parallel take for granted through their provincial governments. In a constitutional, financial, and practical sense, the three northern territories remain colonies of Canada. In a similar manner, Aboriginal peoples are not full partners in the Canadian political system. Notwithstanding three decades of concerted efforts to secure Aboriginal rights and to conclude land claims agreements – through litigation in the courts and at the negotiating table – Aboriginal peoples have neither achieved the degree of political autonomy for which many First Nations leaders have argued, nor received the recognition and respect from, and meaningful partnership with, fellow Canadians that many Aboriginal peoples desire. It need not be so. A country that takes great pride in innovative programs such as equalization payments, medicare, and multiculturalism has yet to succeed in resolving one of the most fundamental challenges of the country – building a Canadian federal state with Aboriginal peoples as fellow architects. The failure to reach agreement on a common future has not been from a lack of trying either on the part of Aboriginal communities and their leaders, or on the part of some Canadian citizens and federal and provincial governments. For more than two decades, Aboriginal leaders have sought a constitutional right to self-government. And, as dem-

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onstrated in the Charlottetown Accord of 1992, federal and provincial governments at that time were prepared to acknowledge this right. But the provision for self-government was not achieved. The accord, which contained many constitutional amendments, failed in the 1992 national referendum, at least in part due to the proposed strengthening of Aboriginal governments.1 One consequence of this failure is that almost all Aboriginal governments remain under the provisions of the Indian Act. With the possible exception of the Nisga’a of northwestern British Columbia, none constitute a constitutionally protected, third order of government. For other Aboriginal peoples, the creation of a third order of government remains a distant dream, one that appears now to be gathering opponents among the non-Aboriginal population. The early 1990s represented the high point of public support for Aboriginal self-government and Aboriginal rights more generally. By the end of the 1990s, Canada became divided over the question of the rightful place of Aboriginal self-government in the Canadian polity. A decade later, public opinion polls indicated that the majority of Canadians opposed the extension of Aboriginal rights and new treaties; the federal government considered major changes to the Indian Act to impose greater accountability on First Nations governments. Among many segments of the Canadian population, including sizeable numbers of Aboriginal peoples, support for Aboriginal self-government had dropped precipitously. In the 1970s and 1980s, key Aboriginal leaders met regularly with federal and provincial politicians to discuss an issue of pressing national importance. By the 2000s, federal ministers of Indian Affairs, particularly Ron Irwin and Robert Nault, launched policy initiatives that were inherently at odds with positions of the Assembly of First Nations, sought to challenge Aboriginal assumptions about selfgovernment, and seemed motivated by a desire to insist on greater fiscal accountability.2 British Columbia is symptomatic of the general landscape of Aboriginal relations in Canada. The British Columbia treaty process, launched with much fanfare in 1992, raised the hopes of First Nations in that province. Slow progress and unrealistic expectations by many tempered initial enthusiasm; that $500 million had been spent without a single agreement being reached sapped support for the initiative. Critics of the treaty process – those who think Canada and British Columbia are giving up too much to First Nations and those who think First Nations are gaining too little – have no shortage of supporters. The first

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set of critics, mostly non-Aboriginal, argues that Aboriginal selfgovernment in particular, especially as conceived as a third order of government, is contrary to Canadian political practice. These critics argue that Aboriginal self-government is essentially race-based and violates basic tenets of liberal democracy. The second set of critics, mostly Aboriginal, argue as well that the treaty process, particularly a tri-partite process, is not consistent with Canadian political practice. A genuine treaty process should be on a nation-to-nation basis, excluding provincial governments. Aboriginal self-government, as a third order of government, is a natural extension of existing political practice. Rather than restate the rich normative debate that exists among thinkers such as Kymlicka (1995), Tully (1998), Carens (2000), and Borrows (2002) and rather than restate the legal rights debate about whether or not there is a legal basis to an Aboriginal right to self-government among Smith, Clark, and others, this paper mounts a separate set of arguments. Drawing on Alexis de Tocqueville, we argue that Aboriginal self-government, as essentially a form of local self-government, is desirable because it strengthens Canadian democracy. The analysis suggests that selfgovernment does not violate notions of universal liberal democratic principles because Canada was built on pluralistic democratic practices and an acceptance of regional differences. Finally, the argument focuses on the role of the Crown and draws on the insights of David Smith about the role of the Crown as the basic principle organizing governance in Canada. A third order of government, sharing sovereignty with federal and provincial governments, is consistent with the historical and institutional foundations of Canada. Bringing this argument forward does not indicate an acceptance of the standard Aboriginal interpretation of the Crown in Canada. The First Nations’ position excludes the provincial governments and asserts that negotiations with the Crown relate exclusively to the federal government. This assertion is fundamentally flawed. Negotiating with the Crown in the Canadian context – that is, nation-to-nation – means negotiating with the federal as well as provincial governments. Creating a shared future that involves Aboriginal peoples and the rest of Canada requires agreement on the foundations of the Canadian political system. In the first instance, this requires that all parties to the negotiations about Canada’s future understand that there is a shared past, and that the Crown is the fundamental tie that binds the country

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together. Similarly, there has to be a clear and shared understanding of the basic issues and aspirations under discussion, particularly the concept of a third order of government. What Do We Mean by a Third Order of Government? Canadians are not of one mind on the crucial question of Aboriginal self-government as a third order of government. A useful way to proceed with a discussion of models of self-government is within the context of modern federal and unitary states. Prior to the French Revolution, European states were weak compared to their modern successors. They were not highly centralized, nor staffed by a professional bureaucracy recruited on strict principles of meritocracy. Moreover, the population of the traditional state was divided by status. Peasants were subjects, not citizens. Traditional authority was vested in the person of the monarch and, in France, the absolutist monarch was the embodiment of the state. ‘L’état c’est moi,’ boasted Louis XIV. However, even the absolutist regime of the Sun King paled in comparison to the modern state that would succeed it. Born in the aftermath of the French Revolution, the unitary state became the most powerful, centralized form of political organization in the history of human societies. The modern state does not merely make a claim to sovereignty; it exercises sovereignty. Nearly 90 per cent of contemporary states are unitary. The federal state evolved as a different, more decentralized structure. The distinction between unitary and federal states hinges on sovereignty. Canada belongs to a minority of countries that divide sovereignty between a central government and two or more regional (and sometimes even local) governments.3 Sovereignty can be defined as the authority that overrides all others and through that authority bestows the right of command. A right is entitlement to do, or refrain from doing, something which others have an obligation to respect. From this perspective, sovereignty is understood as a bundle of rights rather than a lofty abstract concept. One metaphor is to think of each right of command as the branch of a tree. A number of branches can be tied into two distinct bundles which can then be tied together. From a distance the joined bundle appears as a single whole, but when the outside string is untied, it become apparent that there are in fact two bundles. This is the nature of sovereignty in a federal state. In this regard, citizens of federal states have a tangible sense of how sovereignty, as the

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right of command, is divided between the central government and the regional government. How many Albertans are unaware of the fact that natural resources fall within provincial jurisdiction? How many Canadians are not aware, through the constant bickering over health care funding, of the distinction between federal taxation powers and the financial obligations of the provinces to provide health services? In federal states, because sovereignty is divided between at least two orders of government, the division of decision-making authority has to be clearly articulated. Federal states by necessity have written constitutions that divide sovereignty and concretely enumerate the respective areas of jurisdiction that each order of government holds. In Canada, the manner in which sovereignty is divided between the federal and provincial governments is outlined in great part, in sections 91 and 92 of the Constitution Act, 1867. The United States, another federal system, failed to spell out the responsibilities quite as clearly; it is often observed that the American Civil War was fought, not simply on slavery as is commonly understood, but also fundamentally over a long simmering conflict between the rights of the states and the rights of the national government (Spicer 2004). Other key concepts associated with federal states require definition. The first is concurrent law-making. This occurs when both levels of government are able to make laws in an area of jurisdiction. If there is a conflict between the laws of the central and regional government, the constitution typically specifies whose law prevails. This is called paramountcy. A crucial feature of federal states is the issue of constitutional protection of each order of government. In other words, neither order of government can unilaterally dissolve the other order of government. The federal government in Canada cannot unilaterally dissolve provincial governments nor can a province or the provinces unilaterally dissolve the federal government. In Canada, as in most federal states, federal and provincial governments are not the only governments. In addition to these, local governments are arguably the most important. Local governments, as is often observed, are the creatures of the provincial governments and exist only insofar as provincial governments pass legislation to create them. The powers local governments possess, however broadly or narrowly defined, are determined by each respective province. Constitutionally, the government of Saskatchewan could make the postal clerk in La Ronge the sole administrator of the City of Regina. Practically, of course, this is unlikely to happen, though many in the North might take some

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delight in such an event. Local governments have authority, but it is delegated from the province. This does not mean that local government is not important or ineffective. Local governments provide critical services to citizens; they are catalysts of economic growth; and, most importantly, they build community. However, the fact that provinces have a share of sovereignty and constitutional protection and local governments do not make the provinces fundamentally different from local governments in Canada. This model is not universal, however. Both Germany and Russia, for example, recognize local government in their constitutions and, thus, have three clearly identified orders of government. A third order of government exists if it satisfies at least two conditions. First, it must be a constitutionally protected order of government. Two, it must have specific areas of jurisdiction over which it can exercise ultimate, though not necessarily exclusive, decision-making authority. In other words, it has paramountcy in some jurisdictional areas. Canada already has a third order government, arising out of a lengthy land claims and treaty negotiation – the Nisga’a Final Agreement. At the end of the 1990s, the Nisga’a Agreement was the subject of vociferous and passionate debate. This is understandable, for it marked a fundamental change in Aboriginal-state relations in Canada in that the treaty both granted a substantial measure of Aboriginal self-government and, through the constitutional authority imbedded in the treaty process, established the constitutional authority of the Nisga’a government. The Nisga’a agreement, however, was not the first self-government agreement. More than a decade earlier, the Sechelt Indian Band began to operate under the Sechelt Indian Band Self-Government Act (1986), which replaced the authority of the Indian Act. The Métis settlements in Alberta also achieved self-government in 1990 through provincial legislation (Metis Settlements Act 1990, c. M-14.3). In both these cases, self-government was delegated by legislation and not constitutionally protected. Neither instance could be characterized as the creation of a third order of government. Given that the Nisga’a agreement ushered in a new era of Canadian politics and directly recognized a First Nation as constituting a third order of government, it is hardly surprising that the accord attracted strong reactions. Some observers likened the agreement to a constitutional amendment and demanded a referendum. Other critics described the arrangement as being a precursor to a country of mini-states, with the provinces and federal government powerless to control the Aborigi-

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nal ‘nations.’ On the other extreme, advocates of greater empowerment of the First Nations scoffed at the treaty as being inconsequential, for it fell far short of the recognition of the full and inherent sovereignty of Aboriginal peoples. It was also clear in that debate that, despite the strong opinions and vociferous arguments, few people had actually read or understood the highly technical and complex treaty. A review of some of the key articles in the agreement illustrates the degree to which the Nisga’a Final Agreement represented a radical departure from past Canadian practice. One of the requirements of a third order of government is that it is constitutionally protected. Paragraph 2.1 states: ‘This Agreement is a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982 (Nisga’a Final Agreement Act (2000, c. 7)).’ The subsequent paragraph states: ‘This Agreement is binding on the parties.’ Affirming that the provisions of the agreement are explicitly recognized as Aboriginal rights constitutionally and that none of the parties can unilaterally amend the agreement provides the Nisga’a constitutional protection. One of those rights is the right to selfgovernment. Paragraph 11.1 states that ‘the Nisga’a Nation has the right to self-government, and the authority to make laws, as set out in this Agreement.’ As a consequence, the right of the Nisga’a to selfgovernment is now constitutionally protected. The second requirement of a third order of government is that there are areas of law-making authority over which that government has the ultimate, though not necessarily exclusive, right of command. The Nisga’a agreement establishes a concurrent law-making model. Nisga’a Lisims Government has no areas of exclusive jurisdiction.4 All areas in which the Nisga’a can make laws are areas in which the federal and provincial governments will continue to make laws of general application; in this regard, the constitution has not changed. The breadth of law-making authority that Nisga’a Lisims Government holds is quite extensive. For example, ‘Nisga’a Lisims Government may make laws in respect of solemnization of marriages within British Columbia, including prescribing conditions under which individuals appointed by Nisga’a Lisims Government may solemnize marriages [paragraph 11.75].’ This is an area of provincial jurisdiction identified in section 92 of the constitution. However, paragraph 11.76 states that ‘in the event of a conflict between Nisga’a law under paragraph 75 and a federal or provincial law of general application, the federal or provincial law prevails to the extent of the conflict.’ There are numerous such provisions in the agree-

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ment, covering such topics as environmental assessment and protection, social services, health services, public order, traffic and transportation, fish and wildlife sales, and regulation of intoxicants. It is also important to note there are areas where the Nisga’a have no lawmaking authority, such as national defence and security, international treaty-making, immigration, and international trade. The Nisga’a do have paramountcy in a number of other areas. One of the most important examples is Nisga’a citizenship, which in this agreement means political rights, including the right to vote in Nisga’a elections and the right to run for office. The agreement states that ‘Nisga’a Lisims Government may make laws in respect of Nisga’a citizenship [paragraph 11.39’; moreover, ‘in the event of an inconsistency or conflict between a Nisga’a law under paragraph 39 and a federal or provincial law, the Nisga’a prevails to the extent of the inconsistency or conflict.’ In other words, the Nisga’a have paramountcy in determining who may or may not be members of the Nisga’a political community. The number of areas over which the Nisga’a have paramountcy is limited and includes those principally internal to the Nisga’a such as language and culture, Nisga’a lands and assets, and administration of Nisga’a government. Nevertheless, it is the only government in Canada that can overrule federal or provincial law in certain areas. Establishing Nisga’a paramountcy in selected areas does not mean that the Nisga’a are unencumbered by obligations to other levels of government. Education, another area of provincial jurisdiction, provides a prominent example. The agreement states that: Nisga’a Lisims Government may make laws in respect of pre-school to grade 12 education on Nisga’a Lands of Nisga’a citizens, including the teaching of Nisga’a language and culture, provided that those laws include provisions for: a. curriculum, examination, and other standards that permit transfers of students between school systems at a similar level of achievement and permit admission of students to the provincial post-secondary education systems; b.certification of teachers, other than for the teaching of Nisga’a language and culture, by: i. a Nisga’a Institution, in accordance with standards comparable to standards applicable to individuals who teach in public or independent schools in British Columbia, or

Aboriginal Peoples and the Crown in Canada 155 ii. a provincial body having the responsibility to certify individuals who teach in public or independent schools in British Columbia: ... [paragraph 11.100] In the event of an inconsistency or conflict between Nisga’a law under paragraph 100 and a federal or provincial law, the Nisga’a law prevails to the extent of the inconsistency or conflict [paragraph 11.101].

Although the Nisga’a government has paramountcy in this instance, Nisga’a standards must meet or exceed provincial standards. The Nisga’a agreement clearly represents a marked departure from all previous self-government agreements and as such constitutes a third order of government. It is much less clear that this supposedly radical initiative actually represents either an extension of, or departure, from Canadian political practice. Aboriginal Self-Government: Building on Canadian Political Tradition Critics of the inherent model of self-government generally argue that the third order of government model is not consistent with Canadian political practice. Their criticisms are usually based on appeals to political equality, individual rights, and practical workability. This perspective is championed by political commentators such as the late Mel Smith of British Columbia, radio broadcaster Rafe Maier of Vancouver, National Post columnist Andrew Coyne, and academic Thomas Flanagan. It is a perspective also expressed politically. In the British Columbia provincial election in the mid-1990s, a popular campaign sign advocated ‘one country, one people, one law’ in clear reference to the hotly contested Aboriginal rights issue. This appeal argued for a universal application of the equality of rights, a position some observers loudly, but wrongly, described as racist. Prime Minister Trudeau attempted to implement this vision more than thirty years ago in the 1969 white paper on the Indian Act. Such as perspective draws much upon the ideals of the French Revolution which sought to abolish a political system founded on status and privilege based on accident of birth, and which replaced it with a political system in which all citizens stood equal before the law. It also draws upon the ideals of the civil rights movement of 1960s which sought to eliminate distinctions between citizens based on race. While this view appeals to one model of liberal democracy, it neglects

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the degree to which the Canadian experiment was built on different premises, including the recognition of collective rights and federal citizenship. As Khayyam Paltiel (1987: 27) notes, ‘The fact is that despite the ritual obeisance to the values of equality before the law, as well as the principle of “one person, one vote” and majority rule, Canadian institutions and politicians from colonial days to the present have always implicitly and explicitly acknowledged group claims, privileges and rights.’ Group rights, the centrepiece of Aboriginal aspirations for self-government, have long been hallmarks of the evolution of the Canadian polity. Many are familiar with the recognition of language rights in Canada; fewer are familiar with the recognition of religious rights. In sharp contrast to the United States, for instance, Canada did not adhere to a strict separation of church and state; in fact, religious rights in public education are constitutionally protected. The 1870 Manitoba Act explicitly recognizes the rights and privileges of denominational schools, as well as specifically the rights and privileges of ‘the Protestant or Roman Catholic minority.’ In Saskatchewan and Alberta (and, in an intriguing twist, in the Yukon Territory later on), not only were the educational rights of Protestant and Roman Catholic denominations protected, but so was the right to have such education publicly funded: ‘The minority of the rate payers [of a district], whether Protestant or Roman Catholic, may establish separate schools therein, and in any such case, the rate payers establishing such Protestant or Roman Catholic separate schools shall be liable only to assessments of such rates as they impose upon themselves in respect thereof ... (The Alberta Act 1905, 4–5 Edward VII, c. 3 (Canada)).’ Protestant and Roman Catholic education rights are not the only religious group rights to be accommodated in the Canadian polity. Upper Canada granted exemption from military service to Dunkers, Quakers, and Mennonites, a practice extended in post-Confederation Canada to include Hutterites. Federal authorities have also adapted personal and corporate income tax systems to the Hutterite economic structure with virtually no complaints being raised about the changes. Moreover, ‘the federal authorities have bent so-called universal principles of the Canadian welfare state in the field of old age pensions, family allowances and social insurance to meet the reservations expressed by Hutterites and Old Order Mennonites’ (Paltiel 1987: 28). Accommodation of group difference in Canada is also largely territo-

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rially based under the federal system. Heeding Richard Vernon’s (2004) observations, it is necessary to appreciate federalism from the perspective of the citizen. As he notes, this does not change the definition of federalism, but rather it ‘merely changes perspectives on it from that of obeying to that of belonging’ (p. 150). Citizenship defines the rights and duties of membership in a political community. Federal states not only divide sovereignty; they also divide loyalties. As a consequence, federal citizens have citizenship in, and dual commitments to, separate but integrated political communities. Canadians share a common duty to pay federal income tax and to serve the country in times of war and the right to vote in federal elections. But, as citizens of their respective provinces, Canadians enjoy specific rights that others do not. Basic rights, such as the right to vote in a provincial election, are acquired through residency. To vote in British Columbia provincial elections one must be a residents for six months; in Nunavut it is twelve months. Citizens of Quebec operate with a different legal system for civil matters. Students in Saskatchewan have the right to access Saskatchewan student loans, but Manitoba students do not, unless they become residents of Saskatchewan. Only in Alberta can a bank foreclose on a house that is in arrears in payments and seize it, but cannot also sue the owner for any shortfalls between what is owed and the market price. Even for recreational fishing, citizenship matters. For an annual angling licence in British Columbia, B.C. residents pay $36; non-residents $55; and Non-resident aliens $80. Whoever believes there is ‘one people, one country, one law,’ has not been fishing recently. And so it goes in many other areas, from income tax rates to quality of health care services, educational opportunities, and labour laws. The idea that Canadians operate under different laws and have different rights – occasionally dramatically different – is fundamental to the very nature of our federal system. The recognition of territorially based selfgovernment for the citizens of respective Aboriginal political communities, with some rights and duties shared with fellow Canadians and others not, is therefore merely an extension of existing practice. Canadians cherish individual liberties, but they also cherish Canada as a community of distinct and historically separated constituencies. This is the essence of the Canadian federal experiment. Albertans do not want to see another National Energy Program and argue that federalism provides them a degree of protection. For many this is seen as desirable; yet for some reason there is a reluctance to extend this principle to Aboriginal Canadians.

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A discussion between a political scientist and a member of Parliament on a local television program provides a good illustration of the process. The MP’s political party supports greater provincial autonomy. He was asked about the east coast fisheries: ‘Wouldn’t it be better if jurisdiction over the cod fishery were transferred to Newfoundland? After all, the people of Newfoundland had been there for several hundred years and the fishery is essential to their way of life. Wouldn’t it be better for them to control their own future rather some distant government? Why should the federal government, controlled largely by residents of Ontario and Quebec, make decisions on issues critical to the survival of Newfoundlanders?’ The MP completely agreed without hesitation. The political scientist then observed that the salmon fishery was also critical to the Nisga’a in British Columbia, and wouldn’t it be better if they, too, had some control in the management of their salmon fishery. That, the MP argued, was completely different. What was different, fundamentally, was that it was okay to devolve political authority to a non-indigenous political jurisdiction, but it was not okay to devolve similar authorities to an indigenous government. One final point needs to be emphasized. Federal citizenship confers group rights and allows for difference; it also means rights in, and duties to, a federal political community. In other words, through treaties, Aboriginal peoples are accepting membership in Canada as much as they are ensuring that their distinct political communities endure into the future. Self-government agreements expand the formal working of Canadian federalism and grant collective rights to First Nations which other Canadians will not hold. However, critics of such developments should also recognize the enormous steps forward that such agreements bring to completing the Canadian polity. Consider the highly politicized issue of Aboriginal taxation. The Nisga’a agreed to phase out federal and provincial tax exemptions within twelve years of the implementation of their treaty. Moreover, they also agreed to the provision that ‘The Canadian Charter of Rights and Freedoms applies to Nisga’a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga’a Government as set out in this Agreement’ (Nisga’a Final Agreement Act (2000, c. 7)). It is important to note further that the Nisga’a do not have access to the notwithstanding clause. No provincial government has indicated a willingness to forgo access to section 33 of the charter.

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Aboriginal Self-Government: A Means of Strengthening Canadian Democracy Among the many pros and cons in the debate about Aboriginal selfgovernment, little attention is given to how it may help strengthen, rather than diminish, Canadian democracy. A couple of centuries ago the French thinker Alexis de Tocqueville observed in his travels across America how essential the independence and authority of local government were to the success of democracy, liberty, and citizenship. In fact, de Tocqueville (1839) argued, ‘municipal institutions constitute the strength of free nations.’ First Nations are ethnocultural political communities, which is but one critical distinction from the communities that municipalities govern. However, First Nations typically are local level communities and share that commonality with the New England townships de Tocqueville observed long ago. At the core of de Tocqueville’s argument is that if local level political communities to have both autonomy and authority, citizens will engage in political life. He observed that in America ‘not only do municipal bodies exist, but they are kept alive and supported by town spirit. The township of New England possesses two advantages which strongly excite the interest of mankind: namely, independence and authority. Its sphere is limited, indeed; but within that sphere its action is unrestrained. This independence alone gives it a real importance, which its extent and population would not ensure.’ De Tocqueville argued that it is the small scale of local government that makes it accessible and encourages civic participation. Indeed, without meaningful and extensive participation in the democratic process, how can we seriously expect a healthy democracy? ‘Town meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a free government, but without municipal institutions it cannot have the spirit of liberty.’ What is more, de Tocqueville makes a very important observation. Being born into a community is not a guarantor of commitment to ensuring a healthy polity. Instead, local autonomy and authority are necessary (though not sufficient conditions) for healthy community. The New Englander is attached to his township not so much because he was born in it, because it is a free and strong community of which he is a

160 Greg Poelzer and Ken Coates member and which deserves the care spent managing it. In Europe the absence of local public spirit is a frequent subject of regret to those who are in power; everyone agrees that there is no surer guarantee of order and tranquility, and yet nothing is more difficult to create. If the municipal bodies were made powerful and independent, it is feared that they would become too strong and expose the state to anarchy. Without power and independence a town may contain good subjects but it can have no active citizens.

Healthy democracies require active and engaged citizens, not passive subjects. In this vein, many reasons are put forward to explain the malaise among the Canadian electorate and a growing disinterest in political life. Few have offered the relative weak position of municipal governments as an important explanation. The past two decades have witnessed massive cuts in transfers to municipalities who struggle to meet the basic services that citizens expect. Should we be that surprised that, if the schools of democracy are weak, citizen trust and engagement are low? In its policy statement, ‘On the Future Role of Municipal Government,’ the Federation of Canadian Municipalities draws together these connections: Municipal government is the bedrock on which Canadian democracy rests ... Despite citizens’ expectations that municipal institutions should act as though they constitute an order of government, the Canadian constitution does not recognize them as such. As a consequence, municipal governments do not have the autonomy required to exercise adequate powers or command adequate resources to meet local needs or expectations.5

Do local governments require constitutional protection? Building political community is an unceasing endeavour. It requires long-term planning and huge investments of human resources. It is difficult to imagine long-term commitment to polity building without a reasonable degree of predictability that the institutions that will be built have reasonable prospects to endure. If a provincial or federal government has the authority to dismantle the powers of an Aboriginal government, that predictability would be damaged, if not lost. For many, this may seem highly unlikely, and therefore constitutional protection is unnecessary. This view would have been shared by most

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political scientists a decade ago. In a textbook written in the early 1990s, the authors observed that ‘the government of Ontario has the power, that is the legal authority, to abolish the government of the City of Hamilton, but obviously it does not have the positional power to do so. If it tried, it would fail’ (Pocklington and Pyrcz 1994: 38). Experience over the past decade shows how much circumstances can change. The residents of the former communities surrounding Toronto, now the mega-city of Toronto, found out that the provincial government could exercise its constitutional power, even in the face of well-organized and vocal opposition at the community level. In Montreal a similar set of events occurred under the PQ government. However, even the recent reversal by the Liberal government to allow residents to re-establish a number of former municipalities did not see a corresponding restoration of the original authority of those municipalities. Given these examples, one can understand why some First Nations are not interested in the delegated models of self-government. If we care about the future of our political system and the foundations that local level self-government, Aboriginal or public, may provide for a healthy democracy, then the accommodation of Aboriginal self-government may be in everyone’s best interest. Towards a Shared Future: The Role of the Crown Although the recognition of Aboriginal self-government may be an extension of existing Canadian political practice of accommodating the rights of collectivities, and even though Aboriginal self-government may actually strengthen Canadian democracy, the means necessary to move forward are not immediately clear. One reason is that much of the debate about Aboriginal self-government centres around legal and normative rights – a discussion which, although important, is invariably divisive. Typically, the debate about Aboriginal self-government is set in the context of a zero-sum game. The sovereignty that federal and provincial governments exercise over Aboriginal people and their traditional territories comes at the loss of the right to self-determination of Aboriginal peoples. Conversely, if Aboriginal peoples gain specific rights, other Canadians lose, even if they can rarely articulate what specific powers and responsibilities have disappeared. Moreover, Aboriginal self-government is often presented in terms of returning to the past, a past that predated the arrival of European settlers. Trying to move forward amid a calculus of winners and losers and without a consensus

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for the rationale or foundation for proceeding interferes with efforts to build a common future. Institutions that predate Canada that Aboriginal and non-Aboriginal Canadians share, and that can serve as organizing principles for building a new future, do exist. In fact, the most elemental building block of Canadian political institutions, the Crown, may well provide the answer. The Crown is one of the most powerful and pervasive influences on Canadian government and politics, both federally and provincially. It is also the least understood. In this regard, one of the most important contributions to the study of Canadian political life is David Smith’s The Invisible Crown: The First Principle of Canadian Government. Smith argues that the Crown is not simply important to Canadian governance, ‘the monarchical principle is the organizing principle of Canadian government’ (1995: 5, emphasis added). Smith contends that ‘the Crown is the organizing force behind the executive, legislative, administration, and judiciary on both the federal and provincial spheres of government. Moreover, because of this dual presence, the Crown exercises determinative influence over the conduct of intergovernmental relations. The result ... is a distinctive form of federalism best described as a system of compound monarchies’ (1995: x). This latter point – that Canada is best understood as a system of compound monarchies – is critical, for it holds enormous consequences for the building a mutually beneficial future with Aboriginal Canadians. The Crown or monarchical principle, of course, was inherited from Britain and subsequently Canadianized. In Canada, the monarch is not resident and is represented by the governor general at the federal level and by the lieutenant-governor at the provincial level. The Crown has played a pivotal role in establishing the dominance of the executive in Canada and in strengthening the provinces. Canada, as is well-known, has powerful executives which emerged from a parliamentary system based on responsible government. Party discipline ensures the almost autocratic power of cabinet between elections. The acquisition of the prerogative power of the Crown by the executive has further strengthened its dominance in the workings of Canadian governance. As Smith (1995: 66) notes, ‘The political executive fed on the Crown, directly through the exercise of prerogative powers and indirectly through the exercise of powers delegated by the legislature to the Crown.’ Thus the fundamental political ethos and operation of Canada rests in the authority and existence of the Crown. The importance of Smith’s distinction needs to be explained. Put

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simply, the Crown is not singular, but rather divided. Before 1867, the Crown was unified under empire; after 1867, it was divided between the trinity of empire, dominion, and provinces. However, the division of the Crown, and thus the division of sovereignty between the federal and provincial governments, was not confirmed until the latter part of the nineteenth century when the Judicial Committee of the Privy Council determined the division of powers in Canada, ruling (in fifteen of eighteen cases) decidedly in favour of the provinces. These cases were crucial in determining the division of sovereignty and confirming the provincial Crown in its own right. In the Liquidators case (1892) the JCPC found the ‘Lieutenant Governor ... as much the representative of His Majesty for all purpose of Provincial Government as the GovernorGeneral himself is, for all purposes of Dominion Government’ (Smith 1995: 23). The existence of the provincial Crown gave force to the determination of provincial executives, unencumbered by bicameral legislatures, to draw on the sovereignty that the provincial Crown provided to engage in province-building. Smith argues: No institution contributed more to the consolidation and centralization within the regions than did the provincial Crown. The argument advanced earlier for seeing the Crown as the structuring principle of national government – the prerogatives exercised on advice of the political executive, the reservoir of power delegated to it by Parliament, its monopoly over appropriation measures, the Crown’s appointment power, and its authority over the organization of government – all these, once the Crown’s priority of preference was confirmed in the case of the Liquidators of the Maritime Bank, applied with equal force to the provinces. (1995: 166)

The right of command that the provincial Crown provided provincial executives gave substance to the division of powers outlined in section 92; the subsequent history of province-building led to one of the most decentralized federations in the world. What is more, the existence of a divided Crown, federal and provincial, and of provinces led by their own powerful executives in possession of sovereignty in their own right, made Canada a compounded monarchy. One final, but crucial note: although the Crown has played a huge role in the centrifugal politics of Canadian federalism, Smith also notes the Crown plays an integrative role, as well: ‘As a theoretical principle

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the Crown still integrates the Canadian polity both vertically, within individual jurisdictions, and horizontally, across jurisdictions (1995: 25).’ The Crown may provide an integrative force that at once provides for greater autonomy for Aboriginal governments and binds these governments as essential members within the Canadian body politic. First Nations have a long-standing relationship to the Crown in the political history of Canada. For many First Nations, particularly those who signed the pre-1920s treaties, the relationship is that of a sacred covenant. The Crown holds the promise of providing an institution that holds the political legitimacy upon which Canada can build a common future with Aboriginal peoples. But moving forward constructively requires two things. First, it requires non-Aboriginal Canadians to understand and appreciate the special relationship First Nations have with the Crown. The importance of the Crown is reflected in the policy statements of a number of treaty organizations and in the Assembly of First Nations: ‘What First Nations require is the recognition and affirmation of aboriginal rights in a manner consistent with Section 35 of the Constitution. This includes enhancing the special relationship of First Nations with the Crown’ (Assembly of First Nations: 1990). Second, it requires First Nations to recognize that Canada is a compound monarchy and that the Crown is divided. Building a common future, including third orders of government, means building a relationship that involves Aboriginal peoples reconciling their political aspirations with both federal and provincial governments. Furthermore, as in the case of the Nisga’a, it means all Canadian recognizing that Aboriginal selfgovernment represents an excellent example of First Nations accepting and embracing Canada, not separating from or rejecting the country and its political institutions. The view that the federal Crown, not the provincial Crown, has the sole authority to enter into treaty negotiations is a standard position of most First Nations political organizations across Canada. It is argued even by some First Nations involved in the tri-partite treaty process. In their statement to the courts, which sought to prevent the British Columbia government from proceeding with its controversial 2002 referendum on the treaty process, the plaintiffs (a select number of First Nations leaders in British Columbia) argued that ‘common law recognizes that the Imperial Crown, and its successor the Crown in Right of Canada, has the sole Royal Prerogative to enter into treaties with aboriginal people whereby aboriginal people cede, surrender or in any way compromise, limit or adjust their aboriginal rights and title’ (State-

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ment of Claim ... 2002). And even though British Columbia was not an original signatory at the time of Confederation, the provisions of the constitution still apply to that province, including ‘all legislative and executive power in relation to Indians and Lands reserved for the Indians in British Columbia vested in Parliament and Her Majesty the Queen in Right of Canada, pursuant to s. 91(24) and s. 146 of the Constitution Act, 1867 and Article 13 of the Terms of Union of British Columbia and Canada’ (ibid.). In other words, in the opinion of Aboriginal leaders, nothing changed in the relationship between the federal Crown and First Nations when British Columbia joined Canada; Canada retains exclusive jurisdiction to negotiate with First Nations. There are problems with this approach, of course. First Nations leaders in many ways operate with a vision of Canada frozen in 1867. At that time, the Fathers of Confederation assumed that the federal government was the Crown for all intents and purposes. However, that is not how Canada evolved. The decisions of the Judicial Committee of the Privy Council in London clearly established that the Crown was divided and that the provincial Crown enjoyed sovereignty in its own right. Given the legal realities, traditions, and principles involved, First Nations leaders have to recognize that Canada is a compound monarchy – one that is capable of adjusting to accommodate Aboriginal aspirations. This analysis does not discount the fact that the constitution clearly defines the authority and responsibility for Indians and lands reserved for Indians as an exclusive power of the federal government under section 91. However, much of the authority that First Nation government seek, whether concurrent, or concurrent with paramountcy, are actually provincial powers. Crown lands are provincial Crown lands and any land claim negotiation south of the 60th parallel has to involve provincial governments. Areas such as natural resources, wildlife, and education are all within provincial jurisdiction. As Aboriginal legal scholar, Dan Russell, correctly argues: In a bilateral agreement, the federal government may be able to negotiate a recognition of Aboriginal jurisdictions, which may be found within Section 91 of the 1867 Constitution Act ... However, the federal government has no mandate to negotiate the powers of the provincial governments found in Section 92 of the act ... This requirement may be unpalatable for certain Aboriginal communities. Reluctance by some First Nations to negotiate with provincial governments will have to be overcome. (2000: 41–2)

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The notion of treaty federalism fits closely with the idea of building a common future along the lines of extending our current practice of federalism and of recognizing the common institution of the Crown. James [Sakej] Youngblood Henderson is perhaps the scholar most closely associated with this concept. It is premised on the idea that Canadian federalism is incomplete. Just as the federal government has a constitutional relationship with the provinces, so, too, should the federal government strike comparable relationships with the First Nations of Canada. The critical link for Henderson is the original relationship with the imperial Crown. He argues that the authority of the British monarch, the Crown, was delegated, not ceded, by First Nations through the treaty process. For Canadian political authority to be legitimate, Canada needs negotiate a federal arrangement with First Nations political communities – thus treaty federalism. It is not clear, however, that Henderson accepts the notion of the compound Crown. Nevertheless, the idea of the Canadian polity as Crown plus federalism holds much promise. It gets beyond elements which divide Aboriginal and non-Aboriginal Canadians and, instead, seeks to build a common future on those institutions. As Henderson notes: Treaty federalism was and still is an existing constitutional concept and mechanism to allow Aboriginal peoples to take over their affairs and destiny. It is consistent with their constitutional right to think and freely express Aboriginal conscience with both the Imperial Crown and Canada. As a constitutional standard, treaty federalism is not a racial, ethnic, religious or linguistic standard. Instead, the idea focuses on the legal documents that interlinked to create Canada rather than on the fate of being born into a race or particular culture. (1994: 326)

Conclusion All countries are, at all times, works in progress. Nations struggle with their historical legacies and with institutionalized inequities, regional or cultural differences, and ideological conflicts. They wrestle, as well, with the weaknesses of national political structures and all manner of other political, legal, and constitutional difficulties. Canada’s struggles are far from unique. Britain continues its efforts to address the separatist impulses from Scotland and Wales. The United States struggles with numerous democratic ills, ranging from the influence exerted by interest groups to the disproportionate power in the Senate of small states.

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Australia, much like Canada, is continuing its efforts to define political space for Aborigines and Torres Straight Islanders, and is finding the path forward difficult to find. Other federal states, such as India and Indonesia, cope with far more profound linguistic, ethnic, and cultural tensions than those that bedevil Canadian politicians. Canada’s uniqueness stems, in large measure, from the surprisingly strong consensus about the divided Crown and the distinctive system of parliamentary federalism which resulted. Canadians accept, with astonishingly little debate, the linguistic duality of the country, expressed in the significantly different empowerment and constitutional status of Quebec and the French in Canada. They tolerate, with very little opposition, a political legacy that gave considerable authority to the provinces and that institutionalized conflict between federal and provincial authorities. There are signs that the country is adjusting to a new and third dimension of federalism, relating to the growing authority of Aboriginal people and the territorial North. The massively expensive Nunavut experiment attracts scarcely a word of public protest. So, too, the negotiation of major treaties with Aboriginal people in the Yukon and Northwest Territories has reconstructed Canadian politics without attracting much sustained criticism. And even the passionate debate about Aboriginal self-government – reminiscent of the political conflicts in the 1960s and 1970s about the emerging and surprisingly assertive French-Canadian nationalism – masks the fact that the country has increasingly accommodated itself to the new federal reality, one which accepts Aboriginal self-government as a third order of government within the Canadian federal system. A great deal of legal, constitutional, and political work lies ahead. The instrumentality of the Crown will likely play a crucial role in articulating a new, collective understanding of the divisibility of sovereignty in Canada and of the ability of the federation to accommodate Aboriginal self-government without immolating the national political and constitutional system (Smith 2003). As the Nisga’a agreement becomes solidified in practice – and at some point the nation will recognize how fortunate it is that the creative, flexible, and innovative people of the Nass were the first to negotiate a modern self-government agreement – the country will recognize that dividing the Crown further to include Aboriginal governments no more shatters the Canadian political fabric than does allowing government funding of Catholic schools in Manitoba or accepting the existing of the code civil in Quebec. Federalism is an inherently flexible political structure, not rigid and

168 Greg Poelzer and Ken Coates

unbending. The national challenge is to demonstrate that the aspirations of Aboriginal peoples can be accommodated within a nation that has repeatedly demonstrated the capacity to adjust to meet the needs of other groups within Canada.

NOTES 1 Although the provisions around Aboriginal self-government did not play a prominent role in most of Canada, it did in some provinces, especially British Columbia where Aboriginal land title across most of that province has not been settled. Incidentally, most voters on Indian reserves who cast ballots rejected the Charlottetown Accord. 2 The Assembly of First Nations passed numerous resolutions that were highly critical of government policy and, most notably, Bill C-61, First Nations Governance Act. 3 These states include Argentina, Australia, Austria, Belgium, Bosnia and Herzegovina, Brazil, Canada, Comoros, Ethiopia, Germany, India, Malaysia, Mexico, Micronesia, Nigeria, Pakistan, Russia, St Kitts and Nevis, Serbia and Montenegro, South Africa, Spain, Switzerland, United Arab Emirates, United States of America, and Venezuela. 4 Nisga’a Lisims Government is the formal name of the Nisga’a people as recognized in the Final Agreement. 5 Federation of Canadian Municipalities, ‘On the Future Role of Municipal Governments,’ http://www.fcm.ca/newfcm/Java/frame.htm

REFERENCES Alberta Act 1905, 4–5 Edward VII, c. 3 (Canada). Assembly of First Nations. 21 August 1990. ‘Assembly of First Nations’ Critique of Federal Land Claims Policies’ (4 October 2004). Borrows, John. 2002. Recovering Canada : the resurgence of Indigenous law. Toronto: University of Toronto Press. Carens, Joseph H. 2000. Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness. New York: Oxford University Press. de Tocqueville, Alexis. 1839. Democracy in America. http://xroads.virginia .edu/~HYPER/DETOC/toc_indx.html (4 October 2004). See also de Tocqueville, Alexis. 2004. Democracy in America, trans. Arthur Godhammer. New York: Library of America.

Aboriginal Peoples and the Crown in Canada 169 Federation of Canadian Municipalities, ‘On the Future Role of Municipal Governments,’ http://www.fcm.ca/newfcm/Java/frame.htm Henderson, James [Sakej] Youngblood. 1994. ‘Empowering Treaty Federalism,’ Saskatchewan Law Review 58 (1994): 326. Kymlicka, Will. 1995. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon Press. Manitoba Act, 1870, 33 Victoria, c. 3 (Canada). Metis Settlements Act (1990, c. M-14.3). Nisga’a Final Agreement Act (2000, c. 7). Paltiel, Khayyam Zev. 1987. ‘Group Rights in the Canadian Constitution and Aboriginal Claims to Self-Determination.’ In Contemporary Canadian Politics: Readings and Notes, ed. Robert J. Jackson, Doreen Jackson, and Nicolas Baxter-Moore. Scarborough, Ont.: Prentice-Hall Canada. Pocklington, T.C., and Greg Pyrcz. 1994. ‘Power and Influence.’ In Representative Democracy: An Introduction to Politics and Government, ed. T.C. Pocklington. Toronto: Harcourt Brace & Company. Russell, Dan. 2000. A People’s Dream: Aboriginal Self-Government in Canada. Vancouver: University of British Columbia Press. Saskatchewan Act 1905, 4–5 Edward VII, c. 42 (Canada). Sechelt Indian Band Self-Government Act (1986, c. 27). Smith, David E. 1995. The Invisible Crown: The First Principle of Canadian Government. Toronto: University of Toronto Press. – 2003. ‘Distinguished Researcher Award Lecture University of Saskatchewan.’ Presented at the University of Saskatchewan, 22 October 2003. Spicer, John. 2004. ‘The Cause of the American Civil War,’ History Review 49. ‘Statement of Claim in the Supreme Court of British Columbia Between: Wilson Bob, Robert Sam, Roderick Naknakim, Mavis Ericson and Lydia Hwitsum Plaintiffs And: Her Majesty The Queen In Right Of The Province Of British Columbia, The Attorney General and Minister Responsible For Treaty Negotiations and the Chief Electoral Officer Of British Columbia,’ April 2002. http://www.ubcic.bc.ca/docs/FNTNA_WRIT.doc. (4 October 2004). Tully, James. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge: Cambridge University Press. Vernon, Richard. 2004. ‘The Federal Citizen.’ In Braving the New World: Readings in Contemporary Politics, ed. Thomas Bateman and Roger Epp. Toronto: Nelson. .

7 Provincial Coalition Governments in Canada: An Interpretive Survey gregory p. marchildon

Coalition governments in Canada are comparatively rare because of the very nature of the Westminster model of cabinet government operating within a single-member-plurality electoral system, colloquially known as a first-past-the-post system. As a consequence, there has been only one federal coalition government, itself established for historically unique reasons during wartime, and no coalition government experience in six of Canada’s ten provinces. There are, however, important exceptions in this Canadian political history. The four provinces of Ontario, Manitoba, British Columbia, and Saskatchewan have had coalition governments. Their coalition experiences will be summarized in order to draw some generalizations concerning the creation, maintenance, and termination of coalition governments within the Westminster model. Before surveying this history, however, it is important to examine the incentives underpinning the traditional two-party Westminster model, as well as the impact on this model of the rise of third parties and the consequent possibility of minority governments. The Anti-Coalition Logic of the Westminster Model and Minority Governments In his classic book on cabinet government, Sir Ivor Jennings (1969) described the four basic features, or principles, that define the modern Westminster model as democratic, parliamentary, monarchical, and cabinet government. It may be more accurate to say that cabinet government is based upon two sets of competing principles that are in tension with one another, with democratic and monarchical principles as one set, and parliamentary and cabinet government as the other set.

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While modern Westminster government is democratic in nature, it has been erected on a monarchical foundation that is anti-democratic in its origins. Through the broad democratic franchise, governments are held accountable through periodic general elections. But as David Smith points out in The Invisible Crown, monarchical government has bestowed a legacy of highly centralized decision-making on modern cabinets because the Crown, acting through Parliament, is sovereign and supreme. While parliamentary government means that the elected members of Parliament function as the representatives of the people in the House of Commons, cabinet government means that the actual responsibility for governing is delegated by the governing party in Parliament to a small committee of select politicians. Cabinet controls the executive branch of government, setting new policy directions, administering programs through governments departments and agencies, and deciding levels of expenditures and taxation. These decisions are made in the confidence and secrecy of the cabinet room. The Westminster model is adversarial in operation, thereby providing a democratic check on cabinet’s extensive powers. The opposition parties’ role is to criticize the decisions of cabinet, using parliament and its procedures and processes (including parliamentary committees) as a stylized field of combat. While cabinet alone decides the priorities and policies of government, the governing party as a whole must defend these decisions in Parliament. As a consequence, the principles of cabinet secrecy, loyalty, and unity (both cabinet and full government caucus) are also fundamental to the traditional Westminster model (Aucoin et al., 2004). The normal assumption is that members of a cabinet are drawn from a single party having majority support in the House of Commons. According to R. MacGregor Dawson (1970: 173), it is ‘no accident that cabinet government is the child of a two-party system and that its greatest successes have occurred where that system has flourished.’ The ‘normal Canadian cabinet’ in Dawson’s words, is ‘therefore composed of members owing allegiance to the same political party,’ and it is this homogeneity which ‘creates a much more efficient executive body, gives consistent leadership, discourages internal dissention, and develops a stronger fighting organization to ward off the constant attacks of the opposition.’ In this view of the Westminster model, coalitions are rare because they are weak and unstable relative to majority government by a single party. From a structural standpoint, coalitions in twoparty systems are also unnecessary, as almost invariably one party will have a numerical advantage in terms of elected members.

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Given this, why do coalition governments emerge within Westminster systems at all? Because they are on occasion seen to be better than the alternative, generally the instability and weakness associated with minority governments where three or more political parties are vying for office. The rise of protest parties and the decline of traditional parties in parts of Canada have created the conditions necessary for minority governments that are, in turn, the structural foundation for coalition governments. In table 1, the historical occurrence of minority governments following individual elections is juxtaposed against the number of coalition governments formed just before or after individual elections. There are a number of potential responses, short of a formal coalition, to a minority government predicament (Geller-Schwartz, 1979). In figure 1, these responses are organized according to the degree of formal structure associated with each. The more structured the response to a minority situation, the more stable the arrangement but the more committed the parties become to each other, and the more compromised they become in terms of retaining their original identity and freedom of movement. This is the essential trade-off, and coalition governments rarely appear in adversarial-style Westminster systems in large part because of the degree to which party identity is endangered and the freedom to criticize coalition partners is clipped. As illustrated in figure 1, the first-level response is a minority governing as a majority with the implicit collusion of the opposition in the case where neither side is desirous of an immediate election. This is done by government members exercising the discipline of attending all major votes in the House and the opposition exercising self-restraint by some members being purposely absent during critical votes in the House. The next step is one in which the governing party makes a separate accommodation with the opposition parties on critical bills thereby obtaining an ad hoc majority on each major vote. The third step up is an informal agreement that an opposition party will support the government as long as it adopts some of the opposition party’s priorities. The fourth step up is a more formal agreement where a third party agrees in writing to support the minority government for a limited period of time, in exchange for specific policy concessions. The fifth step is a formal coalition agreement. This is an explicit agreement among the elected members of two or more political parties to form a government in return for each party having ministers in cabinet and directly contributing to program administration, policy-making, and agenda-setting.

Provincial Coalition Governments in Canada 173 FIGURE 1 Trade-offs in the Response to Minority Government High

• Fusion

• Coalition agreement

• Formal agreement Compromise

• Informal agreement

• Ad hoc majority

Low

• Minority governing as a majority High

Low Stability

An essential part of such coalition agreements is the participation in cabinet of the coalition partners. In this way, power and responsibility are shared. Responding to a minority situation by constructing a coalition can be so difficult that it is often avoided in favour of lower-level responses. At the federal level, for example, there have been 11 minority governments emerging from the dust of 36 elections since 1867. Despite this, only one coalition government was ever formed, and it had nothing to do with minority government. Indeed, the Union Government of 1917–21 emerged at a time when federal politics was a stable two-party affair, the product of Prime Minister Robert Borden’s efforts to create a wartime coalition that would also have the happy result (from his perspective) of splitting the opposition Liberal party on the issue of conscription. None of the eleven minority situations at the federal level ultimately created the winning conditions necessary for a coalition government. In his study of coalition theory, E.C. Browne (1973) defined a governing coalition as a grouping of individuals or parties who: agree to pursue a common and articulated goal; pool their relevant resources in pursuit of the goal; engage in conscious communications concerning

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the goal and the means of obtaining it; and agree on the distribution of benefits received upon obtaining the goal. In the Westminster model, the actions of a coalition minister defending cabinet decisions in Question Period is a very conscious and public act of communication. In this adversarial environment, the opposition is duty bound to remind the respective coalition partners and the voting public of the compromises implicit in the decisions taken. This can make coalition extremely unpleasant for more ideological parties or for the partisan supporters of parties with a history of holding government alone. It is important to remember that in a coalition government, parties do retain their separate identities. Despite coming together for the purpose of forming a government, coalition party caucuses and party structures are kept separate. If they take the extra step of merging into a single coalition party with a single undifferentiated caucus, then the coalition really becomes a fusion, the most extreme of responses to a minority government situation as can be seen in figure 1. It is also the most rare of responses. The Provincial Experience: East versus West Examining the provinces in table 1, we see considerable variation across the country in terms of minority governments and coalitions. A rough line can be drawn between the Atlantic region and Quebec where the two-party system has been the historic norm on the one hand, and the western provinces and Ontario and their long experience with third parties on the other hand. In the most eastern provinces the rarity of minority governments is a reflection of a long tradition of a classic twoparty parliamentary system. Prince Edward Island and Newfoundland (at least since it joined the Canadian federation in 1949) have never experienced a minority government. In both cases, power has alternated between the Liberals and Conservatives, and with no credible third-party threat, minority government has been avoided. Quebec, New Brunswick, and Nova Scotia have each experienced only one minority government, and in each case the government in question preferred to deal with the uncertainty of minority rule rather than the difficulty of forging a coalition with an opposition party. In the more western provinces the early emergence of powerful farmer and populist parties undercut the oligopoly of the established parties. The one exception is Alberta which has neither an eastern two-party

Provincial Coalition Governments in Canada 175 TABLE 1 Coalition Government Experience in Canada, 1867–2004

Canada Alberta British Columbia Manitoba New Brunswick Newfoundland Nova Scotia Ontario Prince Edward Island Quebec Saskatchewan

Year party politics first introduced

Number of elections

Number of minority governments elected

1867 1905 1903 1879 1870 1949 1867 1867

37 25 28 35 33 17 35 38

12 0 2 7 1 0 1 5

1 0 3 5 0 0 0 1

2.7 0 10.7 14.3 0 0 0 2.6

1886 1867 1905

33 37 25

0 1 2

0 0 2

0 0 8.0

31

12

38.7

19

11

57.9

Total, Canada included Total, provinces only

Number of single-term coalition governments

Percentage of coalition governments

Source: Canadian Parliamentary Guide

tradition nor a western multi-party tradition. Since the province’s creation in 1905, four successive political parties have held power for unusually lengthy periods. These governments have had relatively little opposition during their long tenures in office; that is until the fin de régime, when Albertans would abruptly switch their votes after many years of loyalty to the party in power. The Liberal party controlled the province from 1905 until 1921 when the United Farmers of Alberta took over. This lasted until 1935 when Social Credit took office, not relinquishing power until the Progressive Conservative party took power in 1971, a position it has maintained ever since. The four other western-most provinces have all had some experience with coalition governments. Each will be briefly examined in an effort to draw out some common answers to the following questions: Why is a coalition government established in the first place? What are the factors that assist in the maintenance of a coalition government? Why are coalitions terminated? This survey begins with Ontario since it had the earliest experience with a coalition from 1919 until 1923. Interestingly, this was also the

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only coalition government in Ontario history despite four other minority government situations. The second case examined is Manitoba with its experience of fusion between two political parties in 1932–6, followed by successive and shifting coalition governments lasting until 1950. The third case is British Columbia, whose two minority scenarios translated into one coalition government, the longest in Canadian history, from 1941 until 1952. The final case study is Saskatchewan, in which two minority situations have produced two coalition governments, one from 1929–34, the second very recent, from 1999 until 2003. Ontario: The Farmer-Labour Coalition Government of 1919–23 Until the early twentieth century, two political parties dominated Ontario: the Liberals (Grits) and the Conservatives (Tories). With the emergence of farmers and industrial workers as independent political forces by the First World War, this would change when the two groups combined to redraw the political map of Ontario 1919. The United Farmers of Ontario (UFO) was first established in 1914. Through its local clubs, its original purpose was to provide Ontario farmers with education and social assistance, but the UFO moved into direct political participation after its demands on behalf of farmers were permanently shelved by the old-line parties in Queen’s Park and Ottawa. The UFO’s first electoral effort was in two Ontario by-elections in August 1919. For the upcoming general election later that year, the UFO worked closely with another third party, the Independent Labour Party (ILP). Agreeing not to oppose each other, the UFO nominated sixty-four candidates in rural ridings while the ILP put forward twenty candidates in urban ridings, while ten candidates actually ran on a combined Farmer-Labour ticket (Johnston, 1986). The election of October 1919 proved to be a disaster for the Liberal and Conservative parties with the UFO winning forty-five and the ILP eleven seats out of a total of 112 seats. Rather than agreeing to a coalition with the Liberals who had won twenty-nine seats, the UFO ultimately opted to form its own coalition government with the ILP, even though this produced only fifty-six seats. But with informal support from the Liberals for its legislative agenda, the coalition enjoyed relatively stable government (Hoffman, 1961). The purpose of the coalition government was to enact policies and programs that were more favourable to both farmers and industrial labourers than those supported by the old-line parties. As new populist

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parties, the UFO and ILP also shared an antipathy to the status quo not held by the Liberals or the Conservatives, both of whom were seen as complicit in maintaining the existing order. Despite the very different interests of the respective groups they represented, the UFO and ILP were drawn to each other in part because they saw themselves more as anti-establishment grassroots movements than as political parties. The key to the coalition negotiations was the number of cabinet positions to be assigned to each party. By adopting a weighting proportionate to each party’s number of seats in the House, the UFO ended up with nine cabinet members and the ILP with two ministers. At the same time, the UFO and the ILP maintained separate caucuses, and cabinet acted as a coordination mechanism between the two. Soon after the terms of the coalition agreement were agreed upon, a committee of three UFO and three ILP elected members was created to communicate the new coalition’s position on election promises, policies, and personnel issues to the members of their respective parties. In addition, all elected UFO members were required to keep in close touch with their individual ridings as a matter of course. While cooperation was generally good between the rank and file of both parties, there was some tension between the two leaders. The premier was E.C. Drury, a farmer and vice president of the UFO. As a former Liberal and moderate, however, Drury was distrusted by the more radical leader of the ILP, George Halcrow. Nonetheless, many within the ILP were of a more moderate temperament and were prepared to work constructively with the UFO. Moreover, Drury’s past history as a Liberal actually aided him and his government in obtaining the support of the Liberals on its bills in the House, and the coalition government enjoyed a healthy majority on most votes. The coalition government’s main threat did not come from either the opposition parties or the coalition partners. Instead, Drury’s main problem came from within his own party, and these tensions would eventually lead to the implosion of the UFO. In particular, J.J. Morrison, the UFO’s executive secretary, felt that Drury was turning the UFO into a traditional party, and Morrison fought against this trend (Oliver, 1975). After the 1919 election Morrison managed to increase UFO members to fifty thousand, and the influence of this extra-parliamentary wing was significant enough to set the legislative agenda for upcoming sessions and determine who would, and would not, be party whip. In June 1920, under Morrison’s leadership, the local UFO secretaries met and passed resolutions to strengthen their control over Drury and

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the parliamentary wing of the party, further hampering Drury’s efforts to broaden the base of support for his government beyond the UFO and its rural members. In December 1921, when Drury finally came forward with a proposal to turn the UFO-ILP coalition into the People’s Progressive party, it was handily defeated by the UFO executive. Relations between the elected members and the extra-parliamentary members of the UFO were strained further when Drury met with several Liberals and proposed an electoral alliance for a series of by-elections. Although the electoral alliance was never consummated, Drury continued to work closely with the Liberals, much to the dismay of Morrison and the party executive. The disagreement caused the UFO whip to attack Drury verbally in the House on his relations with the Liberals. When Drury called a snap election for June 1923, the UFO was too divided to nominate sufficient candidates, much less fight a rejuvenated Conservative Party under Howard Ferguson, and even Premier Drury lost his seat. In contrast, the ILP managed to elect four of its members on a coalition ticket. Months later, the UFO passed a resolution at its convention declaring that it step out of electoral politics. In conclusion, Ontario was the first province to experience a farmerlabour ‘revolt’ culminating in the rise of an effective, albeit temporary, political alternative to the established two-party system. The non-partisan nature of the farmer and labour movements, along with their common commitment to a program of political reform, allowed a coalition agreement to be struck between two organizations representing very different constituencies. In the case of the UFO in particular, however, distrust of traditional party politics as well as the clash between grassroots democratic control and executive decision-making on the Westminster model ultimately undermined E.C. Drury’s efforts to broaden the UFO’s appeal by fusing it with the ILP, thereby transforming an interest-based movement into a permanent political party. Manitoba: The Liberal-Progressive Fusion and Subsequent Coalitions, 1932–50 With its numerous minority governments, Manitoba provides one of the richest case studies of fusion, coalition, and quasi-coalition in the Canadian federation. From 1932 until 1950 provincial responses to minority government revolved around a core Progressive-Liberal partnership first established under the remarkable leadership of John Bracken. These experiences were also embedded in a long tradition of third party

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politics and non-partisan government in Manitoba (Donnelly, 1963; Morton, 1957). The origins of the first coalition government can be traced to the United Farmers of Manitoba (UFM), which entered and later exited the political arena in the 1920s. In the 1922 election the UFM won a modest majority and formed a new government with John Bracken as its leader and premier. Highly sympathetic to the philosophy of the national Progressive party, Bracken rejected the old-style partisanship of the Liberals and Conservatives in favour of what he called ‘group’ or ‘nonpartisan’ government (Morton, 1950). Practising what he preached, Bracken permitted free votes in the legislature, allowing government bills to be defeated by his own members. Despite winning a majority government in the election of 1927, the UFM withdrew from electoral politics the following year. Bracken and his supporters became known as the Progressives thereafter. By the winter of 1931–2, Bracken was actively seeking out the support of the opposition parties to work with his government to deal with the exigency of the Great Depression. Positioned on opposite poles of the Bracken/UFM ideological centre, the Conservative and Independent Labour parties turned down the offer, but the Liberals agreed after a convention decision to support the idea of coalition. As a consequence, three Liberals were brought into the cabinet in May of 1932. In the debate leading up to the election of 16 June, 1932, coalition became a key issue for both pro-government and opposition groupings. Indeed, the Liberals and Progressives went beyond coalition, forging the Liberal-Progressive party which ran a single, unified campaign. The election delivered thirty-six seats to the Liberal-Progressives, with twenty-nine belonging to former Progressives and seven to the Liberals. The Conservatives ended up with fifteen seats and the ILP with three. The resulting Liberal-Progressive government was the product of fusion rather than coalition because the two parties originally forming it had actually created a single provincial party organization and a single caucus with a sole leader in the person of John Bracken. This party merger, dominated by the Progressives, would survive until the provincial Liberals re-established themselves as a separate provincial party in 1963. The motives behind the fusion were obvious. Bracken and his Progressives wanted to remain in power and could ill afford further vote-splitting. Weaker than the Conservatives, the Liberals had no hope of gaining power except on the shirt-tails of the more powerful

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Progressives. At the same time, both parties were centrist in their general policy orientation, hostile to the right-wing (and anti-reformist) inclination of the Conservatives and distrustful of the radical left-wing nature of the ILP. Due to the negative impact of the Depression, the Liberal-Progressive party emerged with a minority of twenty-four seats out of fifty-five in the July election of 1936. In an arrangement that fell short of coalition, the Social Credit party with its five members agreed to give the LiberalProgressives legislative support in exchange for the government conducting an economic survey of the province that would (it was hoped) support Social Credit’s policy prescriptions to address the depression. This agreement sustained the government for the rest of the decade (Kendle, 1979). As a result of the outbreak of war and the need to implement portions of the Rowell-Sirois Royal Commission report, however, Bracken decided that he needed the reliable support of the opposition parties and made formal offers of coalition by the fall of 1940. Most party leaders accepted the offer and a non-partisan cabinet, made up of eight Liberal-Progressives, three Conservatives, as well as two ministers from the CCF and Social Credit, was sworn in. In the election that followed on 22 April 1941 coalition candidates obtained fifty-one out of a total of fifty-five seats with sixteen coalitionists being elected by acclamation. The coalition was maintained in part by Premier Bracken, a consistent supporter of coalition government that stemmed from the influence of the early Progressives, and their belief in non-partisan government. This was aided by Bracken’s personal willingness to share some degree of power with leading individuals from other parties. The Conservatives entered and then stayed in the coalition because of their comfort with the centrist policies and ideology of the LiberalProgressives. The Cooperative Commonwealth Federation (CCF) and Social Credit parties were highly supportive of the old Progressive agenda. These relatively new parties felt they had no real chance of forming government on their own, having won a total of only twelve seats between them in the 1936 and 1941 elections. The post-election glow of the coalition would be short-lived, however. Towards the end of 1942 John Bracken was enticed into leaving provincial politics to become the leader of the federal Conservative party, which was re-branded the Progressive Conservative party as a condition of his accepting the leadership. While Bracken was replaced in Manitoba by Stuart Garson, a farmer with a similar background and

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political beliefs, the coalition nonetheless began to unravel. In late 1942 the Manitoba CCF left the coalition in response to demands from the national party, which now concluded that it could form a government in both Ottawa and the more western provinces on its own. By the October 1945 election, the CCF became the leading anti-coalition party in Manitoba although it only gained nine seats as compared to the twenty-five and thirteen seats, respectively, won by the LiberalProgressives and Conservatives. From 1945 until 1949, the coalition amounted to a ‘non-partisan’ cabinet made up of six Liberal-Progressive and four Conservative ministers. Just before the election of November 1949, Stuart Garson left for Ottawa to become federal minister of agriculture in a Liberal government and was replaced by Douglas Campbell as premier. While Campbell’s coalition won a majority – thirty-one seats for the Liberal-Progressives and nine seats for the Conservatives – the coalition began to lose strength as four Conservatives and two LiberalProgressives left the government to sit as independents. The coalition’s final rupture in 1950 was due to two factors. First, based upon the 1949 election outcome, the Liberal-Progressives no longer needed the Conservatives for a majority government. The second and more immediate cause, however, was a dispute within the Conservative party that caused a ginger group, known as the Manitoba Democratic Movement (MDM), to split off from the coalition. The MDM disagreed with the coalition’s policy position on liquor laws and viewed with alarm what it regarded as the coalition’s inability to stem the rise of the CCF. Supporting a more traditional approach to Westminster-style cabinet government and ministerial responsibility, the MDM argued for the return of what it called ‘true responsible government’ in Manitoba. Its leader, Duff Roblin, put pressure on the Conservative leader to withdraw from the coalition, and Premier Campbell’s mishandling of the Red River flood provided the pretext for the Conservative’s formal withdrawal from the coalition in August 1950 (Morton, 1957). As illustrated in table 1, Manitoba has had more coalition experience than any other province. The first coalition, created in 1932, soon became a fusion of Liberals and Progressives within a single party. This party then created coalitions with other parties during four separate electoral periods during the decade of the 1940s before it finally broke down in 1950. The reasons for its ultimate failure were partially structural, in that the Liberal-Progressive majority victory in the 1950 election removed the incentive to share power. But it was also related to

182 Gregory P. Marchildon

uniquely historical factors such as the rise of a movement that supported traditional Westminster-style government and the emergence of a charismatic leader capable of making his party believe that it could be elected as a government without the support of other parties. British Columbia: The Liberal-Conservative Coalition of 1941–52 By 1933 British Columbia’s two-party tradition came to an end with the emergence of a newly formed party of the left: the CCF. The province’s one and only coalition government was formed out of the ashes of the wartime election of October 1941, when the Liberals gained twenty-one seats, the Conservatives twelve seats, the CCF fifteen seats, and the Labour party one. As the Liberal leader of the day, Duff Pattullo was asked by members of his own caucus to consider forming a coalition government but refused to do so. Pattullo was an ardent and partisan Liberal (Fisher 1991). As premier of the province since 1933, he did not want to share the spoils of power with non-Liberals. He also feared that the Liberal party would become ideologically compromised through a coalition with either the right-wing Conservatives or the left-wing CCF. Without consulting his caucus, Pattullo simply announced that his Liberal cabinet would carry on as a minority government, but fellow Liberals who disagreed pushed the issue into the party’s convention shortly thereafter. When the dissidents obtained a majority vote in favour of coalition, Pattullo was forced to resign the premiership in favour of the man who had led the pro-coalition forces, his minister of finance, John Hart. Within days of the convention, Hart invited the leaders of the main parties to join in a coalition. Royal Lethington Maitland, the leader of the Conservatives, quickly accepted the offer in a pre-emptive strike to keep the CCF out of government. A moderate Conservative, Maitland knew he had the support of his caucus for the deal and minimal opposition in the party, since both shared his fear of the CCF. From the Conservatives’ perspective, it was better to compromise on a few questions of policy direction with the Liberals than remain on the sidelines thereby possibly triggering an election that the CCF might just win (Abbott, 1978; Alper, 1977). In other words, the Conservatives’ desire for coalition was mainly defensive in nature. From the Liberals’ perspective, they wanted a coalition principally to retain office. As the governing party of British Columbia since 1916 (with the exception of one term), the Liberals were accustomed to

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wielding power, and many in the parliamentary wing were prepared to compromise with either the CCF or the Conservatives to continue to hold on to power. The CCF leader, Harold Winch, however, was unwilling to enter a coalition with what he viewed as an unprincipled and patronage-ridden party. Once Duff Pattullo, the premier and leader of the anti-coalition forces, was pushed out, the new premier found it relatively easy to negotiate a coalition cabinet based on representation in the House – that is, five Liberal cabinet posts (including premier) and three Conservative cabinet ministers. Although Maitland and the Conservatives wanted specific policy commitments, Hart refused, arguing in favour of starting the coalition government on a clean slate. The Conservatives reluctantly agreed. Under Hart and Maitland’s accommodating style of leadership, the coalition government functioned smoothly. Hart in particular was a very effective broker between the two parties. Although maintaining separate caucuses and party identities, the once rival parties minimized their disputes, knowing that the probability of a CCF victory was high if an election was triggered in the short term (Alper, 1975). Since many of the partisan accommodations were made in the cabinet room, backbench MLAs in both parties felt left out. Some Conservatives also blamed the party’s declining fortunes in British Columbia in subsequent federal and provincial elections on the coalition (Alper, 1977). However, at least in the beginning, these concerns were more than compensated by the benefits of coalition, especially the benefits of electoral success. In the election of 1945, for example, the Conservatives and Liberals drafted a common forty-three-point coalition election platform and the campaign was financed through a central war chest with funds raised separately by each party. The coalition’s campaign literature focused on two themes: the coalition government had been the most able in both administrative and public policy terms in the history of the province; and the CCF posed a threat to the province’s economy and democracy. The strategy produced a major victory for the sitting government against the ‘socialist hordes’ at the gate: thirty-seven coalition seats relative to ten for the CCF and one for Labour. Had the coalition partners not worked so closely together, they could have easily lost to the CCF, which had a high enough percentage of the popular vote to win in a three-way race in the majority of ridings (Robin, 1973). This second term would lead to growing internal unhappiness, particularly among Conservatives, and the beginning of the eventual end of the coalition government. This change was triggered, first and fore-

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most, by a change in party leaders. In 1946 Maitland died suddenly and was replaced by the more ideologically right-wing Herbert Anscomb, who became the Conservative deputy premier to Liberal premier John Hart. The next year, Hart himself retired. While the Conservatives felt that Anscomb should become the new premier, the Liberals felt that their greater strength in the House entitled their party to decide that position. As a consequence, new Liberal leader Byron Johnson became the premier of British Columbia. The Johnson-Anscomb partnership differed substantially from the Hart-Maitland coalition for a number of reasons (Alper, 1975). First, the conflict over the post of premier left both leaders bitter and distrustful. Second, Johnson and Anscomb lacked the camaraderie and spirit of compromise enjoyed by Hart and Maitland. Third, the external threat of the CCF had diminished significantly since the 1945 election outcome. Finally, and perhaps as a result in part of the third factor, anticoalition sentiment grew stronger in the extra-parliamentary wings of both parties. The Conservative party, in particular, twisted itself into three factions: the fusionists (initially led by W.A.C. Bennett) who favoured forming a single party out of the coalition; the coalitionists led by Anscomb and his caucus who favoured the status quo; and the anticoalitionists, who felt that the life-blood of the BC Conservative party was being sapped by the coalition. At the same time, some in the Liberal party began to question whether they needed the Conservatives to remain in power. However, both sides temporarily put their concerns aside to fight the 1949 election. Again, the coalition government won a great victory, capturing thirty-nine seats relative to nine to the opposition seats, seven of which went to a further diminished CCF. For the Conservative party, however, the victory was pyrrhic. Three days after the provincial election, the federal election saw the B.C. Conservatives reduced to three members. This result, combined with the knowledge that some Liberals had concluded that it was time to drop the Conservatives out of the coalition, led to an attempt to remove Anscomb as leader in the 1950 party convention and remove the party from the coalition. Anscomb survived the challenge, but W.A.C. Bennett (who had by now joined the anti-coalitionists) defected to the Social Credit League of British Columbia in protest. By early 1952, under instructions from his party executive, Johnson dismissed Anscomb from his position as deputy premier, and the Liberals carried on as a minority government. In the election of 1952, the Liberals lost

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power to Bennett’s Social Credit party, and both Anscomb and Johnson were personally defeated (Elkins, 1976). To summarize, coalition government in British Columbia did not emerge until the province’s two-party monopoly ended. As in Ontario and Manitoba, a political party eventually emerged out of interestbased farmer and labour movements, the latter playing a much larger role in British Columbia because of the nature of its natural resourcebased economy. Although already beginning to threaten in the 1930s, it took until the Second World War before the CCF could gain enough seats to force the Liberals into a minority situation. Despite the structural incentive this created for a coalition government, it would take a tumultuous change in Liberal leadership for an anti-CCF coalition to be forged with the Conservatives. This coalition was maintained by the accommodating style of both party leaders and their continuing fear of the CCF and their willingness to work on a common electoral platform in 1945. Although the coalition would survive a further election, it began to unravel. As the threat of the CCF receded through the election outcomes, the structural factor underpinning the original coalition also weakened. Personality also played a key role as the party leaders originally responsible for the first coalition were replaced with leaders less invested in the coalition. Saskatchewan: The Co-operative (1929–34) and NDP-Liberal (1999–2003) Coalitions The co-operative coalition government of 1929–34 grew out of an informal alliance of opposition politicians attempting to defeat the Liberal government that had been in office continuously since the creation of the province of Saskatchewan in 1905 (Smith, 1975). At the centre of this anti-Liberal alliance was the Conservative party and its leader, Dr J.T.M. Anderson. To help defeat the Liberals, Anderson had agreed not to run Conservative candidates in the ridings where Progressive and independent candidates had some chance of beating Liberal candidates, thereby reducing the number of three-candidate ridings from thirty-six to twelve. This desire to bring to an end a quarter-century of Liberal rule was stronger than any ideological affinity among the coalition partners, although there were at least two common policy objectives. These included a common commitment to civil service reform – in part to break the patronage-based Liberal machine – and a common desire to reduce

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religious (i.e., Roman Catholic) influences within the publicly funded separate school system. The influence of the Ku Klux Klan (KKK) on this electoral coalition has been much debated. Patrick Kyba (1968) and John Courtney and David Smith (1972) have argued that the antiCatholic and anti-minority influence of the KKK was key to the coalition’s defeat of the Liberal party, while Peter Russell (1970) concluded that the KKK actually had a limited impact on the coalition’s formation, electoral success, and government policies. Without doubt, however, personality played an important role. Liberal premier Jimmy Gardiner was a ‘relentless Liberal’ who, through his partisan actions, added fuel to anti-Liberal coalition sentiment (Ward and Smith, 1990). The election of 6 June 1929 produced twenty-eight Liberal seats, twenty-five Conservative, as well as six Independents and five Progressives. Consistent with his personality, Gardiner refused to reach out to any of the opposition members or parties, and stubbornly went ahead with a minority government. This mobilized the opposition groups who met within a week of the election in an effort to turn their electoral partnership into a new government coalition. Although Anderson resigned as Conservative leader and was elected as joint leader of the three parliamentary groups, the parties agreed to retain their prior identities as well as the freedom to support their own parties and positions in federal politics. In the face of Gardiner’s refusal to step down, and the lieutenant-governor’s refusal to force him to resign, Anderson’s new coalition engineered the selection of a new Conservative speaker of the House and the Liberal government quickly fell on a motion of no confidence in favour of the new ‘Co-operative’ coalition government under Anderson. By agreeing that cabinet positions would be allocated on the basis of the number of elected members in the House – eight Conservative cabinet ministers including Premier Anderson and one each for the two other coalition groupings – the Progressives and the Independents accepted the Conservative party as the senior partner in the coalition. While the Independents, generally former Progressives or Conservatives who had left their respective parties, had the implicit approval of their constituents to become part of a coalition government, the sitting Progressive members were in a different position. Indeed, the extraparliamentary wing of the Progressive party kept some distance from their elected members by declaring that any Progressives who accepted a cabinet post did so as individuals, not as representatives of the party (Courtney and Smith, 1972; Russell 1970). Nonetheless, like the Inde-

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pendents, the Progressives caucus never withdrew its support from the Co-operative government. The major threat to the coalition ultimately came from the crushing impact of the depression and infighting within the Conservative party itself. Hit harder than any other province, Saskatchewan was brought to its knees as income from agriculture dipped to historic lows and government revenues dried up during the 1930s. In 1932, desperate to find some support to grapple with the situation, Anderson offered a coalition position to the newly formed Independent Labour Party (ILP), which refused on ideological grounds. Instead, the ILP under leader M.J. Coldwell supported the Co-operative government’s progressive legislation and later helped to forge an independent farmerlabour party of the left, the CCF. Anderson then canvassed the Liberals, offering to give one-half of his cabinet posts to Liberal members. Gardiner and his party turned down the offer, calculating that Anderson’s coalition was almost certain to be defeated in the next general election. The formation of the True Blue movement, predicated on the belief that the coalition had moved the Conservative party too far to the left, generated interenal discord. D.S. Johnstone, the leader of the movement, demanded Anderson’s resignation. Although Johnstone was defeated by Anderson at the subsequent Conservative party convention, the Co-operative coalition continued to decline in popularity. By April 1934 the coalition was terminated and in the general election two months later, the Conservative party was crushed in a Liberal victory that saw the CCF emerge as the main opposition party. The Conservative experience with governing during the depression and the party’s defeat as the dominating coalition partner was so devastating that it would take over four decades for it to build itself into an effective opposition in Saskatchewan and form a government again. This time, the Conservatives would come to government without any need for a coalition partner and hold power for two terms beginning in 1982. The Conservative government’s massive defeat in 1991 to the NDP as well as series of high-profile prosecutions for financial fraud after the election, led to the party being disbanded shortly thereafter. In 1997 the Saskatchewan party was created when ex-Conservatives joined with disaffected Liberals and new, ideologically conservative, candidates loosely aligned with the federal Reform party (Wishlow, 2001). Within two years, this opposition group, itself a coalition of members of other parties, would pose such a threat to the NDP that it would forge a

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defensive coalition with an old political adversary, the Liberal party of Saskatchewan. The election of 16 September 1999, produced twenty-nine NDP seats relative to twenty-six Saskatchewan party and three Liberal seats. With one government member serving as speaker in the House, however, this translated into a minority government. Within days of the election, NDP premier Roy Romanow opened discussions with the three Liberal members and a coalition government agreement was signed on 29 September. Two Liberals, including leader Jim Melenchuk, were appointed ministers within the new coalition cabinet and the third member was appointed speaker. Roy Romanow wanted a coalition in order to provide greater stability for his government. It was also intended to prevent a vote of no confidence in the House at a time when the Saskatchewan party continued to exhibit momentum from its near election victory. For the Liberals, it was also a defensive manoeuvre in the sense that its three elected members stood a very good chance of being defeated in any short-term election that polarized the vote between left and right. The text of the coalition agreement was disseminated the day the coalition was announced but the reaction by the extra-parliamentary wings of the two parties differed dramatically. The NDP was generally positive, largely because the caucus had been consulted on, and had agreed to, the coalition being formed. In addition, caucus members had been in close contact with many members of the party who were not, therefore, surprised at the ultimate agreement. Within the Liberal party, however, the reaction was generally negative. The extra-parliamentary wing had not been consulted and clearly felt it should have been. Despite the fact that the coalition agreement ensured separate caucuses and the continuation of pre-existing party organizations, many Liberals feared that their party, already in a vulnerable position given earlier defections to the Saskatchewan party and the NDP, would have its identity swamped by the senior partner in the coalition (Haverstock, 2001). As leader, Jim Melenchuk began to be criticized by members of his own party, and within two years he would be removed. His fellow Liberal cabinet minister, Jack Hillson, would leave the government to sit in opposition as an independent Liberal after Romanow was succeeded by Lorne Calvert in early 2001. Despite this, the coalition continued on with the former speaker of the House becoming the new ‘Liberal’ minister within the coalition government. Both members were, how-

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ever, eventually forced to leave the Liberal party; running as NDP candidates in the 2003 election, they were both defeated. At the same time, the NDP eked out a slim majority in the election and therefore no longer required a coalition for stability. To conclude, Saskatchewan’s experience with coalition governments, similar to that of Ontario, Manitoba, and British Columbia, is rooted in the rise of third-party challengers to the historic Liberal-Conservative monopoly. In the first case, the Conservatives were able to defeat the long-governing Liberals by forging a coalition with Progressive and Independent candidates committed to a platform of political reform. The second case involved a defensive coalition between a small rump of elected Liberals and the governing NDP in order to keep a new party (itself a coalition of various old parties and new movements) from gaining power. In both cases, structural factors were critical to the formation and maintenance of the coalitions. It is highly unlikely that either coalition would have been established without the need for coalition in order to gain power or to keep power. Conclusion The rise of populist parties following the First World War in the westernmost provinces of Canada upset the traditional two-party equilibrium of Westminster cabinet government. Creating a competitive, multiparty system, these new parties of protest laid the groundwork for minority electoral results. In some provinces such as Ontario and Manitoba (and to a limited extent in Saskatchewan), they became part of a governing coalition. In British Columbia the threat they posed prodded the traditional parties into a defensive coalition government. But for a minority election outcome to produce a coalition, the parties involved had to put a higher value on sharing power and responsibility in order to achieve their respective objectives, than on the independence and freedom of movement that adversarial politics ordinarily affords. Based upon the four provincial case studies of coalition governments, and in answer to the three questions posed at the beginning of the chapter, some general conclusions can be drawn. In terms of why a coalition is established in the first place, it is the structural dynamics and inherent instability of a minority government – rather than the perception of common goals alone – that produce coalition governments. Virtually all coalition governments in

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Canada were created in minority scenarios. Therefore, while the ideological and policy proximity of parties certainly helps in achieving and maintaining a coalition, as theory and experience would predict, the desire to hold power, and the fear of defeat in the absence of a coalition, seem the more immediate spur to creating a coalition government (De Swann, 1973). In particular, the threat of a third party, which is often waiting in the wings hoping to benefit from a collapse in the dominant parties, can bring the dominant parties together in a coalition if the margin of ‘victory’ for both is narrow enough and their hostility to the third party’s ideology or policy objectives is great enough. This was certainly the case in the Liberal-Conservative coalition which kept the CCF from gaining power in multiple elections in British Columbia. Also, an exogenous shock to the entire system can sometimes help bring parties together. The depression, for example, did help bring parties together in Manitoba. The same crisis was not enough, however, to bring parties together in Saskatchewan, with the Liberals preferring to wait for their chance to form government alone after the next general election. Once a coalition is created, its longevity is determined by a number of factors, from the nature of the personalities involved to more structural factors such as the balance of political forces in the province. In terms of personality style, the willingness of the respective party leaders, in particular the premier, to accommodate and compromise is critical. The less partisan and the more willing party leaders are to share power with the members of another party, the longer the coalition will survive. Based on the provincial case studies, it is obvious that changes in party leadership can have a dramatic impact on the coalition and those party leaders who create the original coalitions are in the best position to maintain them, in large part because they have invested their political reputations in the coalition and its survival. In addition, the more charismatic and persuasive a coalition premier – John Bracken for example – the less likely it is that a powerful anti-coalition faction within a party will emerge under another charismatic leader capable of challenging the coalition premier. What are the structural factors supporting a coalition’s maintenance? One common feature is that party representation in the cabinet should be roughly proportional to the party’s electoral strength in the legislature. While this almost invariably results in an unequal coalition partnership, the rationale is transparent, easy to justify, and roughly equitable according to the logic of an adversarial system of representative democ-

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racy. Moreover, it permits rapid and predictable adaptation to changing circumstances, including by-elections and general elections (Dodd, 1976). Another structural factor is the greater discipline exerted by traditional parties relative to newly established populist parties and their respective caucuses and extra-parliamentary executives. Coalitions are difficult to maintain with populist parties because they often place significant constraints on the decision-making of their elected representatives, particularly those in cabinet. Since the Westminster model tends to push the process of coalition accommodation into the cabinet room, ministers who cannot make compromise decisions without full consultation and approval of their party executives face a difficult term of office. In the provincial studies above, they often become estranged from their nonelected party members. The Ontario UFO-ILP coalition of 1919–23 is a striking illustration of the phenomenon. Why do coalitions end? Based on the studies above, the unravelling of coalitions often begins with a change in premiership and party leadership. New leaders are almost by definition less committed to the coalition. In other words, the death, illness, or retirement of the party leaders originally responsible for the creation of the coalition can be lethal to its continuation. The most unstable coalitions can be those where a party leader does not consult with, or obtain the majority consent of, the party members for the establishment of the coalition in the first place since this often precipitates a break between the party leader and the party executive. This was certainly the case for the recent NDP-Liberal coalition in Saskatchewan. By the same token, however, a party leader such as Duff Pattullo of British Columbia, who refuses to allow his party to consider a coalition in a minority situation, may find himself rejected by the party. But the most important structural reason for the collapse of a coalition is an electoral outcome in which one party’s minority is turned into a majority. In such situations, the party no longer needs its more junior partner or partners in the coalition, and will be pressed by many within the party to go into government alone. It must be stated, however, that this study is limited to the provincial experience where minority governments clearly produce significant incentives for the establishment of coalition governments rather than the other possible responses to minority governments described in figure 1. In this respect, it is important to note that coalition governments were formed in almost 60 per cent of minority situations in the provinces, but of the twelve minority governments at the federal level not one produced a formalized coalition government. It is beyond the

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scope of this study to determine why the federal experience has been so strikingly different than the provincial, but this outcome does point out the danger of applying lessons from the provincial experience with coalitions to the federal level. Clearly, there are other factors that have consistently encouraged minority governments to either govern as a majority, as in the case of the Clark Conservative government in 1979– 80, or to have informal agreements with the opposition such as the Trudeau Liberal government’s accommodations with the New Democratic Party in 1972–4. This too requires a separate study. It is also beyond the scope of this paper to analyse the substantive policy results from provincial coalition governments relative to majority governments. This too would require a separate study as well as careful judgment about what constitutes progress or achievement in policy terms and what objective benchmarks could be used to measure such progress or achievement. Returning to figure 1, this review of the coalition experience in provincial governments deals extensively with only one point in the tradeoff between compromise and stability in a minority government situation. Further work needs to be done in order to compare other responses to minority government, including formal and informal agreements that stop short of a formal coalition. Based upon this preliminary study, however, it is clear that coalitions have been less rare in the Canadian democratic system than often assumed given the absence of coalition governments at the federal level and the traditional dominance of a two-party system in many parts of the country.

NOTE The author is indebted to Larissa Lozowchuk for her painstaking research assistance as well as Hans Michelmann, Cristine de Clercy, Devon Anderson, and an anonymous referee for their insightful comments on the original manuscript.

REFERENCES Abbott, George Malcolm. 1978. ‘The Formation of the Liberal-Conservative Coalition in 1941.’ M.A. thesis. Victoria: University of Victoria. Alper, Donald Keith. 1975. ‘From Rule to Ruin: The Conservative Party of

Provincial Coalition Governments in Canada 193 British Columbia, 1928–1954.’ Doctoral dissertation. Vancouver: University of British Columbia. – 1977. ‘The Effects of Coalition Government on Party Structure: The Case of the Conservative Party in B.C.’ B.C. Studies 33: 40–9. Aucoin, Peter, Jennifer Smith, and Geoff Dinsdale. 2004. Responsible Government: Clarifying Essentials, Dispelling Myths and Exploring Change. Ottawa: Canadian Centre for Management Development. Browne, Eric C. 1973. Coalition Theories: A Logical and Empirical Critique. Beverly Hills: Sage Publications. Courtney, John C., and David E. Smith. 1972. ‘Parties in a Politically Competitive Province.’ In Canadian Provincial Politics, ed. Martin Robin. Scarborough: Prentice-Hall. De Swann, Abraham. 1973. Coalition Theories and Cabinet Formations: A Study of Formal Theories of Coalition Formation Applied to Nine European Parliaments After 1918. Amsterdam and New York: Elsevier. Dawson, R. MacGregor. 1970. The Government of Canada, 5th ed. Toronto: University of Toronto Press. Dodd, Lawrence. 1976. Coalitions in Parliamentary Government. Princeton: Princeton University Press. Donnelly, M.S. 1963. The Government of Manitoba. Toronto: University of Toronto Press. Drury, E.C. 1966. Farmer Premier: Memoirs of the Honourable E.C. Drury. Toronto: McClelland and Stewart. Elkins, David. J. 1976. ‘Politics Make Strange Bedfellows: The B.C. Party System in the 1952 and 1953 Provincial Elections.’ B.C. Studies 30: 3–26. Fisher, Robin. 1991. Duff Pattullo of British Columbia. Toronto: University of Toronto Press. Geller-Schwartz, Linda. 1979. ‘Minority Government Reconsidered.’ Journal of Canadian Studies 14: 67–79. Haverstock, Linda. 2001. ‘The Saskatchewan Liberal Party.’ In Saskatchewan Politics: Into the Twenty-First Century, ed. Howard Leeson. Regina: Canadian Plains Research Centre. Hoffman, David. 1961. ‘Intra-Party Democracy: A Case Study.’ Canadian Journal of Economics and Political Science 27: 223–35. Jennings, Ivor. 1969. Cabinet Government. 3rd ed. London: Cambridge University Press. Johnson, Charles Murray. 1986. E.C. Drury: Agrarian Idealist. Toronto: University of Toronto Press. Kendle, John. 1979. John Bracken: A Political Biography. Toronto: University of Toronto Press.

194 Gregory P. Marchildon Kyba, Patrick. 1968. ‘Ballots and Burning Crosses: The Election of 1929.’ In Politics in Saskatchewan, ed. Norman Ward and Duff Spafford. Don Mills, ON: Longmans Canada. Marchildon, Gregory P. 2004. ‘Roy Romanow, 1991–2001.’ 2004. In Saskatchewan Premiers of the 20th Century, ed. Gordon Barnhart. Regina: Canadian Plains Research Centre. Morton, W.L. 1950. The Progressive Party in Canada. Toronto: University of Toronto Press. – 1957. Manitoba: A History. Toronto: University of Toronto Press. Oliver, Peter. 1975. Public and Private Persons: The Ontario Political Culture, 1914–1935. Toronto: Clarke, Irwin. Robin, Martin. 1973. Pillars of Profits: The Company Province, 1934–1972. Toronto: McClelland and Stewart. Russell, Peter A. 1970. ‘The Co-operative Government in Saskatchewan, 1929–1934: Response to the Depression.’ MA thesis, Saskatoon: University of Saskatchewan. Smith, David E. 1975. Prairie Liberalism: The Liberal Party in Saskatchewan. Toronto: University of Toronto Press. – 1995. The Invisible Crown: The First Principle of Canadian Government. Toronto: University of Toronto Press. Ward, Norman, and David E. Smith. 1990. James G. Gardiner: Relentless Liberal. Toronto: University of Toronto Press. Wishlow, Kevin. 2001. ‘Rethinking the Polarization Thesis: The Formation and Growth of the Saskatchewan Party, 1997–2001.’ In Saskatchewan Politics: Into the Twenty-First Century, ed. Howard Leeson. Regina: Canadian Plains Research Centre.

8 The Third Phase of the Canadian Citizenship Project: Reform Objectives and Obstacles joseph garcea

During the past six decades the Canadian Parliament has been embarked on an historic project to develop and reform a citizenship statutory regime (Knowles, 2000; Brodie, 2002; Garcea, 2003). The project has consisted of three phases, the first of which is marked by the enactment of the 1947 Citizenship Act, the second by the enactment of the 1977 Citizenship Act, and the third by a series of protracted and unsuccessful reform efforts at enacting a new citizenship act for nearly two decades. Those efforts in the third phase were undertaken between 1987 and 2004 by successive Progressive Conservative governments led by Brian Mulroney and Liberal governments led by Jean Chrétien and his successor Paul Martin. The central purpose of this chapter is to explain the goals and objectives of those reform efforts and the obstacles to enacting a new citizenship act. In providing explanations of these matters, some attention is devoted to the policy preferences of, and the political pressures exerted by, several national ethno-cultural and civil rights organizations that participated in the protracted process to produce a new citizenship act. However, the principal focus is on the policy and political rationality of successive federal governments and their officials as well as parliamentarians both in the House of Commons and the Senate who were influential not only in shaping the nature and pace of the citizenship reform agenda but also ultimately in blocking the adoption of some citizenship legislation introduced by Prime Minister Chrétien’s majority government over a five-year period. Parliament’s role in blocking that legislation in a majority government situation makes this a particularly interesting and important case study of a major policy reform in which Parliament truly mattered in thwarting a government’s stautory reform initiative.

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The Conservative Government’s Initiatives for Reforming the Citizenship Act The third phase of the Canadian citizenship project commenced under the auspices of Prime Minister Brian Mulroney’s government during its second term in office. In a statement delivered to Parliament on 29 January 1987 to commemorate the fortieth anniversary of the 1947 act, the minister responsible for citizenship, David Crombie, indicated that his government would be amending the 1977 Citizenship Act. Six months later, in June of 1987, he launched the reform process by releasing a white paper titled Citizenship 87: Proud to be Canadian. The white paper articulated three policy goals for revising the 1977 Citizenship Act. The first was to eliminate or revise some of the problematic criteria and procedures for granting, refusing, and revoking citizenship. The second was to render the Citizenship Act consonant in wording and spirit with the provisions in the Charter of Rights and Freedoms that had been entrenched in the Constitution Act, 1982 regarding the various rights and freedoms of citizens. The third was to foster a stronger sense of national identity and national unity (Canada, 1987: 8). In keeping with these policy goals, the white paper identified several interesting and important sets of issues and options for reforming the Canadian citizenship regime embodied in the 1977 act (ibid., 9– 22). As subsequent sections of this chapter reveal, these issues and options were prominent in each round of reform initiatives during the third phase of the citizenship project. The first issue was whether Canada should continue to maintain a permissive policy towards dual or plural citizenship embodied in the 1977 Citizenship Act, or whether it should revert toward the more restrictive policy that was embodied in the 1947 Citizenship Act which led to the loss of Canadian citizenship upon obtaining citizenship from another country. The second issue was the qualifications to become a Canadian citizen. Among the matters being considered were the definition of residence, the length of residence in Canada, and exemptions from the residence requirements. The white paper indicated that the 1977 act did not contain a clear and precise definition of residence. This was deemed to be problematic in at least two ways: first, illegal immigrants could count any time they spent in Canada before being admitted as permanent residents towards the citizenship residence requirement; and second, by virtue of a court decision which had broadened the definition of

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the citizenship residence requirement to the point where legal immigrants could leave Canada either to work or even live abroad the day after landing in this country but continue to accumulate the three years of residence needed to qualify for citizenship. The concern was that this was fostering a system of citizenship of convenience in which individuals would acquire citizenship without being acculturated as Canadian citizens by living in the country for an extended period of time. Other issues related to qualifications for citizenship considered in that white paper were exemptions from standard requirements for at least two categories of applicants – namely, the three-year residence requirement for spouses of Canadian military and foreign service personnel based in other countries, and the language requirement of knowing one of the two official languages for applicants over the age of sixty. The third issue was whether the grounds for refusing citizenship should be increased or decreased. Notable principles and provisions that were cited as examples that should be considered were the following: (a) the broadening of provisions related to denial of citizenship on the basis of criminal activity during the three-year residency requirement in Canada to include major crimes committed against local laws while in other countries; (b) expanding the denial of citizenship to applicants who are under deportation orders to include any individual who has become the subject of an immigration inquiry; and (c) standardizing the treatment for identical types of summary convictions for purposes of citizenship, regardless of whether the judges choose to impose a fine or a period of probation as part of the sentence. The fourth issue was the loss of citizenship for cause. The white paper posited that consideration should be given to various possible revisions to the existing provisions regarding revocation of citizenship. More specifically, the issue was what type of provisions should be included in a new citizenship act regarding two key matters: whether to allow persons whose citizenship has been revoked to apply for reinstatement of citizenship after a waiting period of three years; and whether the legal status of persons whose citizenship has been revoked should revert to their status under the Immigration Act prior to becoming a citizen or whether they should be deported. The white paper noted that in the ten years since the 1977 Citizenship Act had been in force, no citizenship had been revoked even though the act provided grounds for revocation where individuals obtained citizenship through fraud, false representation, or concealment of material circumstances. In providing both an explanation and perhaps also what appears to be a

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justification for not having revoked anyone’s citizenship, the white paper readily acknowledged that Canadians were probably divided on this particular issue. That acknowledgment proved to be prophetic given that, as is explained below, when the Chrétien government tried to enact three citizenship bills from 1998 and 2003, this proved to be the most controversial issue. The fifth issue was fairness and equity in granting citizenship. The objective was to eliminate unfair or inequitable provisions in the 1977 act that were carried over from the earlier act. The most notable aspects of this issue included the following: (a) giving statutory approval for those applying for citizenship, including disabled applicants, to have an interpreter present to provide assistance in meeting the requirements regarding knowledge of Canada and its system of government; and (b) giving statutory approval for children with at least one Canadian parent to be granted Canadian citizenship or to regain their citizenship in cases where they had lost it due to the responsible parent acquiring the citizenship of another country. The sixth issue was the qualifications, powers, and terms and conditions of tenure of citizenship judges. The white paper noted that whereas the 1977 act merely stated that the governor-in-council may appoint any citizen to be a citizenship judge, the government was prepared to introduce more detailed provisions regarding their qualifications, powers, and terms and conditions of tenure. Finally, the paper also noted that the government wanted to consider changing their title from citizenship judge to citizenship commissioner to reflect a movement away from a quasi-judicial process towards an administrative process for granting citizenship. The seventh issue was the nature of the citizenship oath. More specifically, it was whether prospective candidates for citizenship should give their allegiance to the Crown, the country, or both. The white paper indicated that the federal government was willing to consider whether the citizenship oath should be amended to reflect and foster political allegiances. The eighth issue was whether the statute should include a citizenship proclamation in the preamble. The white paper indicated that consideration should be given to the inclusion of a preamble containing a declaration of the ideas and principles of Canadian citizenship designed to ‘inspire national pride, to remind all citizens of their rights and duties, and to declare the enduring values of a free, united, bilingual and multicultural Canada’ (Canada, 1987: 19).

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The ninth issue was the celebration of Canadian citizenship. The white paper advanced the idea of a Canadian Heritage Day to be held in February of each year, but noted that this was a controversial issue and there were likely to be as many opponents as proponents of such a statutory holiday. Although the paper did not mention why it would be controversial, undoubtedly the authors were well aware of the arguments made by some people in various parts of Canada against adding any more statutory holidays because of their implications for productivity. Although the white paper was released with the promise and anticipation of substantial consultations, debate, and reform, none of those resulted in the first few years immediately following its release. Nevertheless, as discussed below, most of the ideas embodied in it eventually proved to be influential as they were echoed in a series of committee reports produced between 1992 and 1997 as well as in the citizenship legislation that would be introduced by the Chrétien government more than a decade later (Young, 2000). Following its release, the white paper was almost immediately overshadowed by and subordinated to both the constitutional reform agenda of the Meech Lake Accord and the Charlottetown Accord, and even some statutory reform initiatives. One of the more significant of these reforms was the 1988 Multiculturalism Act, which the Mulroney government enacted primarily as part of its efforts to produce a more efficacious and politically palatable multiculturalism policy and program that contributed not only to social and political cohesion but also to important international economic linkages (Abu-Laban and Gabriel, 2002: 110–11). The Mulroney government’s decision to give priority to the Multiculturalism Act over a new citizenship act was influenced not only by practical administrative considerations that the former was somewhat easier than the latter to produce and process because it did not entail as many constitutional, legal, and political issues, but also by expedient political considerations to supplant previous Liberal governments as the champions of multiculturalism and ethno-cultural communities in Canada. Such considerations may also explain why ultimately it decided not to introduce a statutory reform package that would have included at least a proclamation of Canadian citizenship consonant with the spirit of the Canada clause in the Charlottetown Accord. Evidently the belief, or more precisely the hope, was that such a proclamation would enhance people’s pride in Canada and consolidate support for any initiatives, including the constitutional reform initia-

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tives, which were required to foster Canadian unity (Oziewicz, 1991). Such a belief was echoed in the report of the Citizens’ Forum on Canada’s Future headed by the former official languages commissioner, Keith Spicer, which noted that Canada was facing a crisis of identity and urged the Mulroney government to become more proactive through various means, including policy reforms, to deal with it (Canada, 1990). Nearly two years after releasing the white paper, the Mulroney government officially declared its intention to enact a new citizenship act in the speech from the throne delivered on 3 April 1989 (Canada, 1989: 5). However, despite the importance that, ostensibly, it attached to a new citizenship act, by the time it lost the election in 1993 it still had not introduced the necessary legislation. Consequently, during its last two years in office, it was criticized on several occasions by Liberal MPs in the House of Commons for its failure to live up to its promise. Indeed, in an effort to pressure it to introduce such legislation, Liberal MPs introduced two private members’ bills and a resolution in the House of Commons. The private members’ bills, introduced in 1991 and 1993 by Warren Allmond, the Liberal MP for Notre-Dame-de-Grâce, were designed to amend the Canadian oath of allegiance to make it more patriotic and to emphasize the importance of respecting and upholding Canadian values and laws. In both cases, the majority of Progressive Conservative MPs blocked passage of the bill not only because there was no consensus on the appropriateness of the proposed wording, but also because they felt that such an oath should be part of a comprehensive package to produce a new citizenship act after the Senate Committee on Social Affairs, Science, and Technology had completed its deliberations on reforming citizenship statutes, policies, and programs. The resolution, which was introduced in February 1993 by Shirley Maheu, the Liberal MP from Saint-Laurent-Cartierville, urged the Mulroney government to live up to its earlier commitment to introduce legislation for a new citizenship act. Although no vote was taken on the motion, the debate revealed a consensus among members on both sides of the House that the citizenship act had to be reformed pursuant to the principles articulated in the Mulroney government’s white paper. Although the government did not introduce legislation to overhaul the 1977 Citizenship Act prior to its election loss in 1993, the goal to do so was not abandoned. Continuing efforts to do so were evident in the work of the Senate Committee on Social Affairs, Science, and Technology conducted between 1992 and 1993 in the wake of the death of the Meech Lake Accord and the Charlottetown Accord, which placed con-

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siderable value on the citizenship policy and program as a means of fostering a greater degree of national identity, harmony, and unity (Canada, 1992a). On 23 June 1992 the committee released its interim report, A Study on the Concept, Development and Promotion of Canadian Citizenship, which briefly addressed three major sets of questions related to the concept of citizenship, the promotion of citizenship, and citizenship education raised by witnesses who testified on those topics (Canada, 1992b). Eleven months later, on 6 May 1993, the committee released its final report, Canadian Citizenship: Sharing the Responsibility (Canada, 1993). That report only contained one recommendation for amending the 1977 Citizenship Act, namely the enactment of a new citizenship act by 1995 which not only reflected the pluralist, officially bilingual and multicultural nature of Canadian society, but also provided a clear statement of citizenship rights and responsibilities. The remaining recommendations focused on various means to improve citizenship education and promotion for all, not merely for newcomers (Cornea, 1997). Those recommendations were heavily influenced by Noel A. Kinsella, who was appointed by Prime Minister Mulroney as deputy minister responsible for citizenship for two years and then as a senator. They were rooted in his belief that the federal government had to be much more proactive in promoting citizenship among all Canadians, and not just newcomers, by expanding the scope of citizenship education. As the subsequent section of this chapter reveals, that belief proved to be a significant factor in the types of reforms that he advocated in relation to various statutory reform initiatives that would be introduced by Jean Chrétien’s Liberal government, which came to power just five months after the release of the Senate committee’s report. The Liberal Government’s Initiatives for Reforming the Citizenship Act The 1993 election victory of the Liberals marked the beginning of the second major episode in the third phase of the citizenship reform project. Although the Liberal government led by Jean Chrétien was more productive than its Progressive Conservative predecessor in producing and processing legislation to overhaul the 1977 Citizenship Act, it was not successful in enacting any of it despite several major efforts for more than a decade prior to the 2004 election. This section will provide an overview of the policy goals and politics related to the major initia-

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tives undertaken by the Chrétien government in its three failed efforts to enact a new citizenship act. report of the house of commons standing committee on citizenship and immigration Shortly after it was elected in 1993, the Liberal government announced its intention to overhaul the Citizenship Act. Toward that end it directed the House of Commons Standing Committee on Citizenship and Immigration to make recommendations on reforms both to the Citizenship Act and to citizenship promotion programs. Its decision to do so was based on the views of the new minister of citizenship and immigration, Sergio Marchi, who felt that the report of the Senate Standing Committee on Science and Technology was inadequate in that it had not devoted sufficient attention to key issues and options related to reforming the 1977 act (Cornea, 1997: 123). In June 1994, just nine months after the Liberal election victory, the House of Commons committee produced the report Canadian Citizenship: A Sense of Belonging, which contained several recommendations for statutory amendments that would prove very influential in the framing of three successive bills designed to reform the citizenship act between 1998 and 2004. The report produced by the House of Commons committee was essentially the opposite of the one produced by the Senate committee a year earlier. Whereas the latter devoted most of its recommendations to changing citizenship promotion programs and only one recommendation to statutory amendments per se, the former devoted most of its recommendations to statutory amendments and only a few to matters of citizenship administration and programming. The two reports underscore an important philosophical difference as to what were considered the most important components of the citizenship reform agenda. Whereas one school of thought maintained that the most essential component was the nature of the principles and provisions contained in the statutory framework related to naturalization, the other considered that it was the principles and provisions in the policies and programs related to citizenship education and orientation designed to foster both the formation of a national identity and increased national pride among all Canadians. The tension between those two schools contributed to some of the debates and delays in producing a new citizenship act. The report of the House of Commons committee contained eight general categories of recommendations for framing a new act. These were strikingly similar to the categories of issues addressed in the

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Mulroney government’s white paper and, as noted below, most of them would be embodied in the principles and provisions contained in the proposed legislation that would be produced by the Chrétien government from 1998 to 2003. The recommendations in the committee report were for the new citizenship act to include: – a declaration of Canadian citizenship expressing the vision and importance of citizenship; – a revised citizenship oath; – New criteria and conditions for granting, refusing, annulling and revoking of citizenship; – new provisions regarding dual citizenship; – new provisions regarding the citizenship of children either born to or adopted by Canadian citizens outside of Canada; – new provisions regarding ministerial discretion in waiving citizenship and language tests on compassionate grounds, and in granting citizenship either to alleviate cases of special or unusual hardship or to reward services of an exceptional value to Canada; – new provisions regarding a residency requirement for the resumption of citizenship lost through various means; and – new provisions regarding standardized, fair testing for all citizenship applicants. The report contained a dissenting opinion from the Bloc Québécois committee members who were opposed to three major elements of the report: the proposed declaration of citizenship because it did not recognize Quebec as a unilingual and distinct society; the proposed citizenship oath because it required prospective members of the Québécois nation to pledge allegiance to Canada and the Queen; and the proposed provisions regarding dual citizenship because they required those obtaining the citizenship of another country to give up their Canadian citizenship, and those obtaining Canadian citizenship to give it primacy over any other citizenship (Canada, 1994b). During the deliberations on the proposed legislation from 1998 to 2003, the Bloc Québécois’ opposition to the oath persisted, but its opposition to the other two matters subsided because those elements were not included by the Chrétien government in the proposed legislation. Four years would pass between the tabling of that report by the House of Commons committee and the tabling of the Chrétien government’s first bill to overhaul the 1977 Citizenship Act. The delay

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was caused not only by the machinations surrounding the Quebec referendum of 1995, which created a monumental distraction for the Chrétien government from advancing some of its statutory reform agenda, but also by the decision of the government to appoint the Immigration Legislative Review Advisory Group in 1996 to examine the type of statutory and regulatory framework that would be required for immigration, citizenship, and national security. In its report the advisory group made three key recommendations related to citizenship. The first was the consolidation of the immigration and citizenship acts into a single statute, and the enactment of a separate refugee protection statute. The second was that new requirements for citizenship include not only three years of physical presence in Canada, knowledge of Canada and an official language, and no serious violation of the immigration act or criminal activity, but also some active participation in the community in the form of at least two of the following: employment, study, volunteer/community service, or family care (Canada, 1997: 13–15, and 39–40). The third was that the government examine the concerns regarding the ease with which foreigners could enter Canada to give birth to children while in this country so that such children qualify for Canadian citizenship, and the right of children born abroad to Canadians to hold Canadian citizenship even though they had no connection to this country. Although the Chrétien government rejected the recommendation to consolidate the immigration and citizenship acts into one statute, preferring to enact separate immigration and citizenship acts that were consonant, it acted on the other recommendations in framing the proposed citizenship legislation. The government’s delay in introducing a citizenship bill is both somewhat surprising given that a few years earlier members of the Liberal caucus had been critical of the Mulroney government for not doing so. Once it was firmly ensconced in power, however, the Chrétien government did not appear to be in any greater rush than its predecessor to introduce citizenship legislation. Indeed, it was not until five years after it was first elected that it introduced such legislation. the chrétien government’s proposed legislation, 1998–2003 Between 1998 and 2003 the Chrétien government introduced three bills to reform the 1977 Citizenship Act but, ultimately, none was enacted. The first was Bill C-63 which was introduced on 7 December 1998, but only made it to the committee stage before the session ended and it died on the order paper. The second was Bill C-16, introduced on 25 Novem-

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ber 1999, which made it through all three reading stages in the House of Commons and through the first and second reading stages in the Senate by 27 June 2000 but ultimately died on the order paper when an election was called for later that year. The third was Bill C-18, which was introduced on 31 October 2002, proceeded to the second reading stage in the House of Commons on 7 November 2002, but ultimately died on the order paper thirteen months later when the second session of Parliament ended in December 2003 shortly after Paul Martin replaced Jean Chrétien as prime minister. The remainder of this section will discuss the overarching purpose and key provisions of all three bills and explain why each of them died on the order paper. Purpose, Provisions, and Politics of the Proposed Legislation The purpose of the draft legislation produced from 1998 to 2003 was to advance three general policy goals which had been articulated by successive ministers responsible for citizenship and parliamentary committees since the Mulroney government launched the third phase of the citizenship project. This included: enhancing the integrity of the citizenship system by improving policies and procedures for granting, refusing, revoking, and annulling citizenship to enhance protections against potential abuses both by those who treated it as a ‘citizenship of convenience’ for personal economic benefits and those who posed a threat either to personal or national security; enhancing safeguards for the fundamental rights and freedoms of citizenship candidates and naturalized Canadians pursuant to the Charter of Rights and Freedoms; and enhancing national identity and unity through the articulation and transmission of shared citizenship identity and values. The challenge for those within the citizenship and immigration policy community who developed or debated the legislation was to balance and advance those three goals appropriately, efficiently, and effectively. Many of the key principles and provisions in those three bills were essentially identical to those contained in the 1977 Citizenship Act. This includes many provisions related to various aspects of the citizenship process, such as the requirement for citizenship applicants to have a permanent resident status; granting automatic citizenship both to children born in Canada to non-citizens and children born abroad to a parent who is a Canadian citizen; retention of Canadian citizenship even if one has another citizenship; and testing to determine that citizenship applicants have some knowledge of Canada and one of its

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official languages. Nevertheless, the three bills contained several key provisions that would have either supplemented or supplanted some of the principles and provisions in the 1977 act (Young, 1998, 2000; Dolin and Young, 2002). The first major set of new provisions was designed to clarify both the nature of the Canadian Citizenship Act and the nature of Canadian citizenship per se. These constitute the so-called purpose clause contained in Bill C-18, which was absent in the 1997 Citizenship Act as well as bills C-63 and C-16. The decision to include such a section was based on a belief that it was important for the following purposes: to define who is a citizen and how citizenship may be acquired; to encourage acquisition of citizenship by all who qualify; to protect the integrity of citizenship; to affirm the equality of all citizens; to require a strong attachment to Canada by candidates for citizenship; to promote awareness of the importance of citizenship; and to promote awareness for the principles and values underlying Canadian democracy (Canada, 2002b). These provisions entailed modifications to the oath of allegiance. Whereas the oath contained in the 1977 Citizenship Act called for allegiance to the Queen and her heirs and successors, the one proposed in the three bills retained allegiance to the Queen, eliminated the allegiance to her heirs and successors, and included allegiance to Canada. Another key change to the oath was to include a pledge to uphold the laws and to respect the fundamental rights and freedoms as well as to uphold democratic values within the Canadian polity. This was included as a reminder for those taking the oath that they had duties to the polity as well as rights within it. The second set of new provisions was designed to achieve changes in the citizenship administrative system. The most notable amendment would have changed both the name and roles of citizenship judges. Whereas the Citizenship Act of 1977 stipulates that the minister is authorized to appoint citizenship judges whose principal function is to preside at the citizenship-granting ceremonies, each of the three bills would have changed their name to citizenship commissioners and would also have required them to perform promotion and orientation roles in the citizenship process. This change was designed to mitigate the criticism that such judges were overpaid and under-utilized patronage appointees, and that the government was not doing enough to promote naturalization, national identity formation, and national pride. The Chrétien government had made a commitment to make those changes as early as 1993 and had even included a set of provisions for that purpose in an omnibus bill

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tabled in June1996. However, that bill, like the ones being examined here, died on the order paper. For several years the government tried to live up to a commitment not to appoint any more citizenship judges, but ultimately it was forced to do so because their number was quickly declining as their terms expired, and the legislation to appoint citizenship commissioners had still not been enacted. The third, and arguably the most significant, set of provisions contained in the three proposed bills dealt with the criteria and the procedures for granting, refusing, revoking and annulling citizenship. In the case of granting citizenship, the most notable new provisions were those that dealt with the length and nature of residence in Canada prior to qualifying for citizenship, and the nature of the relationship between Canadian citizens and applicants for citizenship. All three bills contained some important provisions on length and nature of residence. Whereas the 1977 Citizenship Act stipulates that applicants must reside in Canada for 1,095 days within four years, and Bill C-63 proposed that they be required to meet that particular requirement within five years, bills C-16 and C-18 proposed six years. This was an attempt to take into account that in this global era people are much more mobile and are likely to be out of the country for extended periods of time, and therefore need a slightly wider timeframe within which to meet the residency requirement. This was deemed to be particularly important given that the proposed legislation contained clearer and more restrictive provisions regarding what would constitute physical presence for purposes of meeting that requirement. Whereas the 1977 act does not contain provisions that define what constitutes physical presence in Canada for purposes of residence, all three bills did. They stipulated that one must be physically present in the country and that any time spent abroad after initial arrival for any reason would not count toward meeting the residence requirement. Such provisions regarding residence were included to mitigate some of the criticism that had emerged regarding the ease with which Canadian citizenship could be obtained without actually living in this country for at least three years. Furthermore, whereas the 1977 Citizenship Act and all three bills stated that any periods of time spent in Canada when subject to a probation order, on parole, or confined in a penitentiary, jail, reformatory or prison do not count toward meeting the residence requirement, Bill C-18 added a slightly more stringent provision that any time spent serving conditional or intermittent sentences would also not count towards meeting that requirement. The

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stringency related to not counting time spent abroad generated some concern among civil libertarians and among individuals and groups concerned about its potentially negative effects on attracting and retaining qualified entrepreneurs for whom the imperatives of global markets required that they travel on a regular basis for extended periods of time (Abu-Laban and Gabriel, 2002: 89–90). In the case of criteria regarding citizenship for relatives, all three bills contained four important sets of provisions designed to circumscribe the terms and conditions for granting citizenship to the nuclear family of Canadian citizens. The first set of provisions dealt with expanding the scope of the definition of spouse. Unlike the narrow conception embodied in the 1977 Citizenship Act, the three bills embodied a broader conception of spouse to include common-law partners pursuant to the policy for ‘Modernizing Benefits and Obligations.’ This conception was criticized by some parliamentarians and persons who made submissions to parliamentary committees for not being consonant with the traditional definition of spouse. The second set of provisions dealt with facilitating the acquisition of citizenship by adopted children. Unlike the 1977 Citizenship Act, which states that an adopted person must be a minor at the time of adoption and must come to Canada as a permanent resident before acquiring citizenship, Bill C-63 and Bill C-16 stated that an adopted person who was a minor at the time of adoption could acquire citizenship without first becoming a permanent resident. Bill C-18 added that someone could be adopted after their eighteenth birthday provided that a parent-child relationship existed prior to that birthday. The third set of provisions applied to persons born to or adopted by Canadian parents abroad from 1947 to 1977. Whereas the 1977 Citizenship Act provided all such persons and their children with the right to apply for citizenship and to receive it upon application, Bill C-63 would have eliminated that right, but C-16 and C-18 would have restored it. Moreover, bills C-16 and C-18 included a provision whereby such persons could only apply for citizenship under those terms and conditions within the first three years of the provision coming into force. Thereafter, anyone born to or adopted by Canadian parents during that period would have had to apply for citizenship and meet the same criteria as others. The restoration of that right in bills C-16 and C-18 was largely the result of the lobbying efforts of representatives of the Mennonite Central Committee of Canada who noted that there were many such persons in Mennonite communities in various parts of the world, who would want to exercise that right (Young, 1998: 22).

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The fourth set of provisions dealt with restricting or limiting the acquisition of citizenship by children born abroad after the proposed new act came into force. Unlike the 1977 Citizenship Act, which did not contain any limits on the automatic acquisition of citizenship at birth by children born abroad to a Canadian parent, all three bills stipulated that the acquisition of citizenship by children born abroad was to be limited to the second generation and that such children would lose their citizenship if they did not reside in Canada for three years and applied to retain it. Bill C-18 also stipulated that all such children would have until they were twenty-eight to apply for citizenship, and that those who were twenty-two to twenty-seven years old at the time that the new act was enacted could apply with just a one year of residence in Canada in the year before applying. That bill also stipulated that this particular provision for those in that age bracket would expire six years after the enactment of the new act and that thereafter they would have to meet the same three-year residency requirements as all other applicants. While some parliamentarians favoured these changes (Masse, 2002: 1620–30), others opposed them for being too liberal in granting second generation offsprings special access to citizenship (Meredith, 2002: 1250–5). The three bills also contained provisions that established either new or at least more precisely defined criteria for refusing citizenship that differed from some of the criteria contained in the 1977 Citizenship Act. In addition to refusal of citizenship based on not meeting the new residency and relational criteria discussed above, one or more of the three bills contained at least three other new criteria for refusing citizenship. Those criteria were designed to enhance cabinet’s authority to refuse citizenship to anyone who posed a risk to Canada or who had committed war crimes and/or crimes against humanity. The first criterion dealt with criminal matters. Whereas the 1977 Citizenship Act stated that only indictable offences committed in Canada constituted grounds for refusing citizenship, all three of the bills stated that summary convictions in Canada, as well as indictable equivalent offences in other countries, would also constitute grounds for refusal. Indeed, the three bills stipulated that this applied not only to actual convictions, but also to cases before the courts. The second criterion for refusing citizenship dealt with what was initially referred to as the ‘public interest’ in Bill C-16 and then changed to a ‘flagrant and serious disregard for the principles and values underlying a free and democratic society’ in Bill C-18. That change in wording occurred in response to criticisms from parliamentarians and representatives of various national and provincial organizations within the citizenship

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and immigration policy community that the concept of public interest was too vague and gave too much discretion to cabinet ministers and their officials in interpreting and applying it. The third criterion dealt with cases of war crimes and crimes against humanity. Such a provision was included in Bill C-18, but not in the previous two bills. This had already been added to the 1977 Citizenship Act in 2000 as a result of the enactment of the War Crimes and Crimes Against Humanity Act, which was enacted that year after those bills had already died on the order paper. One or more of the three bills also contained key provisions that would have modified both the criteria and processes for revoking citizenship contained in the 1977 Citizenship Act. In terms of changes to the criteria, the major one is found in the grounds for revocation of citizenship with respect to persons who had violated human rights anywhere in the world. Unlike the 1977 act, Bill C-63, and Bill C-16, all of which were silent on this matter and focused only on threats to national security and involvement in criminal activity, Bill C-18 explicitly stipulated that such violation constituted grounds for revoking citizenship. Bill C-18 also differed from both the 1977 act and the two earlier bills in terms of the revocation process. The revocation process contained in Bill C-18 eliminated the need for the governor-in-council to make a judgment on whether there were grounds for revoking citizenship in the first instance based on the minister’s report; instead the judgment was to be left to the Federal Court based on the evidence presented by the minister and the person involved. This was equally true of those who were facing revocation because they were deemed to have been engaged in false representation, fraud, or the concealment of material circumstances in various aspects of the citizenship process, and of those who were facing revocation because they were deemed to constitute a threat to national security, to have been involved in criminal activity, or to have violated human rights. If the court judgment was against them, the former would have only faced the loss of citizenship, but the latter would have also faced an expedited deportation. The second major difference in the revocation process contained in Bill C-18 related to the evidence that the Federal Court would take into account in cases involving persons whom the minister had accused of being inadmissible under the immigration law either prior to their revocation case or as a result of their revocation case on the grounds that they threatened the country’s security, they had violated human

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rights, or they had involvement with organized crime. Bill C-18 stipulated that in acquiring any evidence in such cases, the Federal Court would not be ‘bound by any legal or technical rules of evidence and may receive and base a decision on any evidence adduced in the proceedings that is considered credible or trustworthy in the circumstances.’ This created substantial consternation among parliamentarians regarding the extent to which it would compromise both the norms of judicial procedures and the tenets of natural justice. Consternation also arose from new provisions that dealt with special procedures in revocation cases referred to the Federal Court jointly by the minister of citizenship and the solicitor general involving classified ‘security or intelligence information and information that is obtained in confidence from a source in Canada or from the government of a foreign state, an international organization of states, or an institution of either of them.’ Bill C-18 contained several provisions which empowered either of those two ministers to request that the judge hear some information in camera in the absence of the person involved in the case. It also contained provisions stating that in providing such a person with a summary of the grounds of the case against them, a judge would provide them only with those aspects of the information needed for them to be fully informed for purposes of their case, but which in the opinion of the judge, would not be ‘injurious to national security or to the safety of any person.’ This provision proved to be highly controversial in Parliament as some MPs and senators argued that while it protected classified information, it did not provide sufficient protection for the persons involved in such cases. What made that provision particularly problematic was that Bill C-18, like the other bills and the 1977 Act, stipulated that the decision of the Federal Court’s trial division was deemed to be final and could not be appealed either to the minister, the cabinet, or the judiciary. The absence of recourse to such an appeal proved to be a matter of substantial concern for some on both the government and opposition sides of the House of Commons and the Senate as well as other members of the citizenship and immigration policy community who felt that it did not provide individuals with sufficient procedural safeguards. This combined with the more general concern that the revocation of citizenship for naturalized Canadians created two categories of immigrants (that is, those with revocable citizenship and those with non-revocable citizenship), proved to be a very controversial issue and a major obstacle in enacting Bill C-18.

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Finally, the three bills contained provisions that established new criteria and procedures for annulling citizenship. Indeed, the 1977 act did not contain any explicit references to annulment and did not make a distinction between revocation, which means that ‘citizenship was granted and subsequently taken away at the moment of the judge’s decision,’ and annulment, which means ‘that citizenship would be stripped ... as if it the person had never been a citizen’ (Barnett, 2004). The important consequence of annulment, which would not apply in the case of revocation, is that the persons involved would stand to lose any benefits that they acquired as a result of having been deemed citizens for a particular time. All three bills contained provisions that explicitly granted the minister the authority to annul citizenship in cases where it was obtained either through the use of false identity or in contravention of any other criteria stipulated in that bill within five years that citizenship was granted, retained, renounced, or resumed. Moreover, all three bills required the minister to notify the persons in question that such annulment was being considered thirty days prior to signing the annulment order. Those bills also stated that within thirty days of receiving that notice such persons could make a written representation to the minister on their case, and that they could appeal the annulment order to the Federal Court for judicial review. The key difference between the three bills was the addition of two provisions in Bill C-18 that were not included either in C-63 or C-16. The first required the minister to include a summary of the grounds on which the ministerial annulment order had been issued. The second stipulated that, upon making an order for annulment of citizenship, the minister had to inform the person that the order had been made and to advise him or her of the right to apply for judicial review of the order. The Determinants of the Death of the Proposed Legislation The failure of the Liberal government to enact three successive citizenship bills over a five-year period is remarkable given that the party had a majority both in the House of Commons and in the Senate. Particularly remarkable is that, in the case of Bill C-16, the government used its majority in the House of Commons to push the bill to the third reading stage, but then did not use its majority in the Senate to push it through third reading in that chamber prior to the election call of November 2000. Also remarkable is the fact that when Paul Martin replaced Jean Chrétien as prime minister, Bill C-18 was at the committee stage in the

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House of Commons and his majority government had five months to process it through Parliament, but ultimately chose not do so. Why did the Chrétien government not enact any of those bills and why did the Martin government not enact Bill C-18? The reason is that these bills were caught in a political vortex of interests and imperatives created by the contending preferences of governmental and non-governmental stakeholders within the citizenship and immigration policy community and the political dynamics of the legislative and electoral cycles of Parliament. Those contending preferences were manifested in three debates that prevailed during the deliberations on those three bills: the crown versus country debate; the naturalization versus Canadianization debate; and, most important of all, the programmatic efficacy versus procedural justice debate. The crown versus country debate focused on whether the oath of allegiance should include references only to the Queen, only to Canada, or both. The debate reflected the political tension in Canada between ‘monarchism’ and ‘republicanism’ on one hand and what might be termed ‘provincialism’ versus ‘pan-Canadian patriotism’ on the other. Although it created some controversies and delays, ultimately this particular debate was resolved in classic Canadian fashion by resorting to compromise among a majority of the political parties represented in Parliament. The result was an oath in Bill C-18 which included allegiance both to the Queen and to Canada. Although this compromise satisfied the majority of caucus members of the Liberal, Reform, Progressive Conservative, and New Democratic parties, it did not satisfy those who preferred that allegiance be limited to Canada (Bryden, 2002: 139, 2081–8). It also did not satisfy members of the Bloc Québécois caucus for whom allegiance either to the Queen or Canada was problematic. During the debates, the Bloc adopted a provincialist or more precisely a Québécois nationalist posture in questioning the implications of the inclusion of the reference to Canada in light of the sovereigntist sentiments and the prospects of some form of sovereigntyassociation between Quebec and Canada in the future (Dalphond-Guiral, 2002). The highest consensus among all parliamentarians, regardless of their partisan stripes, was for profiling fundamental principles of Canadian democratic society and the rights and duties of its citizenry. The naturalization versus Canadianization debate revolved around the degree of emphasis that should be placed both in the citizenship act and in the policies and programs that flowed from it on three matters: the naturalization of immigrants and refugees who applied for citizen-

214 Joseph Garcea

ship; the Canadianization of such applicants by fostering a sense of national identity and pride in them through various citizenship orientation and promotion programs; and the Canadianization of all citizens by enhancing the sense of national identity and pride among them through various citizenship orientation and promotion programs. Whereas some members of the policy community both inside and outside Parliament were satisfied with focusing on the naturalization and denaturalization aspects of citizenship, others called for a citizenship act which provided the statutory basis for policies and programs that contributed to the Canadianization of naturalized and non-naturalized citizens. Those who shared this view echoed the various recommendations of the Senate standing committee which had examined the matter in the early 1990s. Towards that end, some advocated the inclusion of a ‘proclamation of citizenship’ in the proposed legislation that articulated the fundamental political and cultural nature of the Canadian polity and the core principles and values of Canadian citizenship. Others advocated a more substantial set of provisions that provided the statutory basis for developing policies and programs to promote Canadian citizenship. A leading proponent of such a set of provisions was Senator Noel A. Kinsella who had been instrumental in producing the recommendations of that Senate committee years earlier. In advancing his vision, in 2001 he introduced Bill S-36 in the Senate, the first part of which dealt extensively with a policy and program framework which, as its title suggested, was needed for the ‘Promotion of Canadian Citizenship’ (Kinsella 2000a, 2000b, 2002; Canada, 2001a). The third, and by far the most significant, debate that contributed to the death of the three citizenship bills was the programmatic efficacy versus procedural justice debate. This revolved around competing views regarding the appropriate criteria and procedures that should be included in a new citizenship act related to granting, refusing, revoking, and annulling citizenship. Although generally all protagonists in the debate conceded that both of those elements had to be taken into account in designing a new statute, differences existed on the extent to which the proposed bills either enhanced or compromised programmatic efficacy and procedural justice. Whereas some members of the citizenship policy community argued that some of the statutory provisions contained in those bills were essential for enhancing programmatic efficacy, other members argued that some of those provisions compromised procedural justice.

The Canadian Citizenship Project 215

Protagonists for the programmatic efficacy side of the debate were: cabinet ministers and administrative officials directly involved with citizenship, immigration, and security matters; parliamentarians both on the government and opposition sides of the House of Commons and the Senate; and some representatives of national and provincial nongovernmental organizations who believed that it was essential to ensure that the citizenship system operated efficiently and effectively (Canada, 2003). Among the national and provincial organizations, a notable protagonist on this side of the debate was the Canadian Jewish Congress which wanted to ensure that the government had the requisite statutory authority to deal effectively and efficiently with revocation, annulment, and deportation in cases involving persons who were guilty of war crimes and crimes against humanity (Silverstone, 2000). Protagonists for the procedural justice side of the debate were members of the policy community both inside and outside Parliament. Many members on the government and opposition benches of the House of Commons and the Senate were concerned that procedural justice was being seriously compromised in cases involving citizenship revocation and annulment (Canada, 2000b, 2000c, 2002e, 2003). They suggested that those bills were not only politically unpalatable because they created two categories of Canadian citizens, but that they were also unconstitutional because they did not afford all citizens equal rights and protections under the Charter of Rights and Freedoms. A leading protagonist on this side was Liberal MP Andrew Telegdi, whose concerns led him to resign as parliamentary secretary to the minister responsible for citizenship. He maintained that some aspects of the proposed legislation provided too much discretion to the minister and insufficient procedural and judicial safeguards for some people subjected to the revocation process. Two days before the government introduced Bill C18 in October 2002, he introduced a private member’s bill (C-271) designed to create a revocation process in which the judiciary rather than the executive would have a central decision-making role that was consonant with the legal rights guaranteed in section 7 of the Charter of Rights and Freedoms (Telegdi, 2002; Canada, 2002d). To mobilize support for his proposed reforms he also wrote a letter to witnesses who were to testify before the Standing Committee on Citizenship and Immigration outlining his concerns and inviting them to address them when they testified (Telegdi, 2003). Outside Parliament, those concerns were echoed by many representatives of non-governmental organiza-

216 Joseph Garcea

tions such as the Canadian Ukrainian Congress (Klid, 2003a, 2003b) and the Canadian Centre for Victims of Torture (2003), who also believed that the provisions in the proposed legislation which authorized ministers responsible for citizenship and their officials to revoke and annul citizenship were draconian and a potential abrogation of constitutional rights. In summary, these three debates created critical delays which ultimately led to the death of the bills on the order paper. The circumstances related to the legislative and electoral cycles of Parliament that led to the death of each of those bills are explained below. Bill C-63 was not enacted largely because the government realized that the original bill was not sufficiently refined to achieve its intended goals, and also because it did not allow sufficient time to make it possible to refine it prior to the end of the parliamentary session. The bill was introduced on 7 December 1998 and was under active consideration at the second reading and committee stages in the House of Commons from 1 March to 14 May 1999. During that time, the House of Commons Standing Committee on Citizenship and Immigration held public hearings on the bill in several major centres across the country. Its report contained a series of relatively minor amendments to each of the following provisions in the bill that were subsequently incorporated into Bill C-16: the residency requirements; the derivative citizenship for natural and adopted children of Canadian citizens; the criteria and processes for revoking and annulling citizenship; and the citizenship oath of allegiance (Canada, 1999b, 1999c). The death of Bill C-63 had more to do with the fact that the three months between the time it received second reading and the end of the session was not sufficient to refine it to the satisfaction of the government and opposition parties, than any major organized resistance to it either by MPs on the government and the opposition benches, or by any societal groups. Indeed, at second reading stage the bill was supported in principle by spokespersons from all the parties, subject to some relatively minor amendments proposed by MPs from both sides of the House. Spokespersons for the Reform Party, the Bloc Québécois, and the New Democratic Party stated that they supported the bill in principle, but that their vote for it at third reading hinged on the government’s willingness to adopt what they viewed as minor amendments (Canada, 1999d). In particular, they were seeking several amendments to the provisions regarding residency, the refusal of citizenship to prevent criminals from

The Canadian Citizenship Project 217

acquiring citizenship, the granting of derivative citizenship for samesex couples, and the appointment of citizenship judges to minimize patronage and partisanship. The Bloc Québécois was also opposed to the continuing reference to the Queen in the oath of allegiance, and to the lack of clarity on the requirement for Quebec’s approval for any adoptions before citizenship would be extended to any child adopted by parents living in Quebec. Although none of those recommendations resulted in amendments to Bill C-63, some of them were subsequently incorporated into Bill C-16 (Canada, 1999b). The failure of the Chrétien government to enact Bill C-16 is even more surprising. It was not enacted largely because the federal government did not plan its processing through the Senate very well, and because senators from all parties who comprised the standing committee that dealt with it were determined not to rush it through the committee stage without substantial amendments to various provisions therein. Bill C-16 was submitted for first reading on 25 November 1999, just five months after Bill C-63 died on the order paper. The former, which was a slightly modified version of the latter, attempted to take into account some of the recommendations contained in the standing committee’s report, especially those regarding the residence criteria and the retention of existing right to citizenship of those born to or adopted by Canadian parents living outside Canada between 1947 and 1977. Ironically, however, the modifications that had been made in light of the debate on Bill C-63 did little to reduce the concerns among the various protagonists. The more time they had to study the proposed legislation the more concerned they became about it. Within twelve months after it was introduced, Bill C-16 made it through all three stages in the House of Commons and to the committee stage in the Senate, but no farther. The vote at the third reading stage in the House of Commons resulted in the bill being endorsed by 153 MPs from three parties, but none from the Reform or the Bloc Québécois parties. The Liberal MPs who voted against the bill shared many of the same concerns as their counterparts from the other parties who also voted against the bill. The deathblow for Bill C-16 came at the committee stage in the Senate while it was being thoroughly scrutinized both by Progressive Conservative and Liberal senators. None of the members of that committee was prepared to allow the bill to go forward without amendments to various provisions regarding both the criteria and procedures for the

218 Joseph Garcea

refusal, annulment, and revocation of citizenship. Indeed, they were all willing to see the bill die on the order paper rather than have it enacted without amendments (Canada, 2000c). The first indication that the bill would likely die on the order paper came when it became clear to them that Chrétien was likely to call an election in November of 2000. Given that the Chrétien government knew that an election was in the offing, why did it not expedite the processing of the bill through the committee stages and third reading in the Senate? The answer seems to be that it was undecided both about the precise timing of the election and the overall importance of Bill C-16. Evidently, during the last few weeks of the session prior to the election, the government decided that it wanted to salvage that bill. By that time, however, it was too late. For the government to get the bill through those two stages in the Senate it would have had to do one of two things. First, it could have acceded to the amendments that were being sought by the senators related to two key matters, namely the appeal mechanisms and processes for refusing, revoking, and annulling citizenship to ensure due process and equity, and a stronger statutory commitment for the promotion of citizenship among all Canadians rather merely those who were being naturalized. Second, it could have tried to use its majority in the Senate to force the bill through in the form that had been approved by the House of Commons without any amendments. Ultimately it decided against both of those options. Allowing amendments to the bill would have not only compromised what the various departmental ministers and their officials felt was needed to achieve each of the aforementioned goals, but it would have led to further delays during the ensuing review and approval process both in the Senate and the House of Commons. Forcing the bill through was likely to engender outcries not only from Liberal and Progressive Conservative senators, but also from representatives of various organizations within the citizenship and immigration policy community who also favoured the amendments that were being proposed. The Chrétien government was particularly concerned that such an outcry could have created electoral problems. Evidently, that decision was heavily influenced by the overtures made by Liberal senators who indicated that they, like their Progressive Conservative colleagues, were determined not to allow the bill to go forward without some of the amendments that they were proposing. When it became clear that the government would not force the bill through the committee stage in the Senate, committee members decided that rather than vote on amendments to

The Canadian Citizenship Project 219

the bill, they would simply discuss key issues and options that the government should consider in drafting a new bill after the election (Canada, 2000c). Clearly, in this case the Senate’s sober second thoughts did matter. The failure of the Chrétien government to enact Bill C-18 is even more remarkable and intriguing than its failure to enact Bill C-63 and Bill C-16. In explaining this failure it is important to answer two interrelated questions: Why did the Chrétien government take nearly two years to introduce it after the death of Bill C-16? And why was it stalled at the committee stage for thirteen months prior to its death? The answer to the first question is that the Chrétien government was preoccupied both with other important legislation that was closely related to Bill C-18. This included the Immigration and Refugee Protection Act and various other pieces of legislation related to security matters that became priorities as a result of the imperatives created by the events of 9/11 and the resulting pressure from the American government for improvements in the content and enforcement of Canadian laws and policies. Another reason is that government officials wanted to produce a bill to preclude some of the controversy among parliamentarians and representatives of major organizations within the citizenship and immigration policy community that had been generated by Bill C-63 and Bill C-16. Ironically, however, the transcripts of deliberations on Bill C-18 at the second reading and committee stages in the House of Commons reveal that concerns over several provisions in that bill, but particularly those related to granting, refusing, revoking and annulling citizenship, actually increased, rather than decreased (Canada 2002e, 2003). Although this explanation provides some insight into why the introduction of Bill C-18 was delayed, it does not explain why it remained at the committee stage for thirteen months before it was referred to the Standing Committee on Citizenship and Immigration. Part of the explanation is that the standing committee was preoccupied with other legislation related to various security concerns following the tragic events of 11 September 2001 which had a higher priority than Bill C-18. The other, and more significant part of the explanation is that it was also presented with a citizenship bill which members from all parties, including the governing party, deemed to be more problematical than Bill C-63 and Bill C-16. The prevailing view was that the government had overreacted to the events of 9/11 and ended up producing a bill with provisions related to criteria and processes for revoking and annulling citizenship that were more draconian than those contained in the previ-

220 Joseph Garcea

ous two bills. The result was that members of the committee, with the encouragement of their respective caucus colleagues, wanted to do a thorough review of the bill which included public hearings and expert testimony from judges and government officials. Between February and June 2003 the committee completed its hearings and started its clause-by-clause review. However, just when it started dealing with the most controversial clauses, Parliament was recessed for the summer break. In the fall sitting the government’s focus turned to the Liberal leadership review and consequently the legislative machinery ground to a halt on all except the most important bills that Prime Minister Chrétien wanted implemented prior to his departure. Evidently Bill C-18 was not one of them, largely because it was understood that reconciling the concerns which prevailed among parliamentarians and the preferences of federal officials would require considerable time and effort. Nevertheless, given his level of his legendary patriotic fervour, it is surprising that Chrétien decided not to make a new Citizenship Act one of his legacy initiatives during his last year in power. Evidently, in this particular case his political pragmatism trumped his patriotism. That decision by Chrétien left it for Paul Martin to deal with Bill C-18. Immediately after taking over the Martin government had to decide on its legislative agenda for the third session of Parliament in the spring of 2004. At that time it decided that it would not bring Bill C-18 forward in its existing form and at the existing stage in the legislative process as it could have done according to a motion approved by the House of Commons on 10 February 2004 (Canada, 2004). Consequently, the bill died on the order paper. That decision was based both on a practical policy consideration and also on partisan expediency because of the prospects of an election being held in the spring of 2004. It did not want to deal with any legislation that could provide the opposition parties with ammunition to use against it in such an election. The nature of citizenship legislation did not become an issue during the election of 2004 which produced a minority government. In the first eight months following its election the Martin government had still not introduced legislation to reform the Citizenship Act. In the absence of such legislation, the House of Commons Committee on Citizenship and Immigration, chaired and co-chaired by MPs who had expressed strong reservations to previous iterations of the citizenship legislation, decided to conduct another round of public consultations. During that time several major national ethno-cultural and civil liber-

The Canadian Citizenship Project 221

ties organizations which had opposed the provisions related to the citizenship revocation process contained in the draft citizenship legislation produced in previous years formed the Canadian Citizenship Coalition to register their continued opposition to those provisions (Telegdi, 2005). Conclusion The foregoing analysis reveals that the overarching goals of the reform initiatives undertaken by successive governments were both to improve the naturalization and denaturalization processes and to foster Canadian national identity, unity, and security in light of changing Canadian conceptions of citizenship, and the changing realities of international security. More specifically, the objective was to establish much clearer and more efficacious criteria and processes than existed in the 1977 Citizenship Act for dealing with various facets of naturalization and denaturalization. Such improvements were deemed essential to minimize problems that federal government officials were facing in dealing both with individuals who merited citizenship and with those who did not. For those who merited citizenship, the objective was to make obtaining it easier. For those who did not merit citizenship the objective was to make it easier for federal government officials not only to deny it but in some special cases even to take citizenship away. Specific objectives pursuant to the goal of fostering Canadian national identity and national unity among both naturalized Canadians and Canadians by birth included maximizing their degree of emotional attachment and personal commitment to Canada; their understanding and appreciation of the importance of the fundamental nature of the Canadian polity and Canadian political values; and their ability to function as full-fledged Canadian citizens within the political, social, and economic spheres of the polity. The analysis also reveals the reasons for the protracted reform process which by the end of 2004 had still not produced a new citizenship act. It also provides some insights on what will be needed to enact one in the future. In its speech from the throne in the fall 2004, Paul Martin’s government committed itself to introducing another bill to produce a new Citizenship Act (Canada, 2004b: 11). Undoubtedly, in drafting such legislation within the context of a minority situation, officials will have to give special consideration to the preferences expressed by MPs and senators both on the government and the opposition benches. If they do

222 Joseph Garcea

not do so, any bill they produce is likely to suffer the same fate as the three bills which died on the order paper in recent years. This is particularly true of any bill that is deemed to pose a potential risk to the fundamental rights of current and prospective Canadian citizens. The major lesson of the efforts to reform the Citizenship Act in recent decades is that Parliament matters when principles and policy preferences of MPs and senators trump party discipline.

NOTE The author wishes to thank John Slocombe for his valuable research assistance for this chapter.

REFERENCES Abu-Laben, Yasmeen, and Christina Gabriel. 2002. Selling Diversity: Immigration and Multiculturalism, Employment Equity, and Globalization. Peterborough: Broadview Press. Barnett, Laura. 2004. Bill C-18 – Revocation and Annulment of Citizenship. Ottawa: Library of Parliament, Law and Government Division. Brodie, Janine. 2002. Three Stories of Canadian Citizenship. In Contesting Canadian Citizenship, ed. Robert Adamoski, et al. Peterborough: Broadview Press. Bryden, John. 2002. House of Commons Debates.139 [3:1510]; and 2081–8 [36:1100–1200]. Canada. 1987. Secretary of State of Canada. Citizenship ’87: Proud to be Canadian. Ottawa: Supply and Services. – 1989. Speech from the Throne. House of Commons Debates. 3 April 3, 1–5. – 1990. Citizens’ Forum on Canada’s Future. Report to the People and Government of Canada. Ottawa: Supply and Services. – 1992a. Senate. Standing Committee on Social Affairs, Science and Technology. Minutes of Proceedings and Evidence. Meeting No. 13, 23 June 13:5–13:8. – 1992b. Senate. Standing Committee on Social Affairs, Science and Technology. Study on the Concept, Development and Promotion of Canadian Citizenship. Ottawa: Supply and Services, 1–13. – 1993. Senate. Standing Committee on Social Affairs, Science and Technology. Canadian Citizenship: Sharing the Responsibility. Ottawa: Supply and Services. – 1994a. House of Commons. Standing Committee on Citizenship and Immi-

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–

–

– – – – – – –

– – – – – – – – – –

gration. Canadian Citizenship: A Sense of Belonging. Ottawa: Supply and Services. 1994b. House of Commons. Standing Committee on Citizenship and Immigration. Dissenting Opinion from the Members of the Bloc Québécois, 22 June. 1997. Immigration Legislative Review Advisory Group. Not Just Numbers: A Canadian Framework for Future Immigration. Ottawa: Public Works and Government Services Canada. 1998a. Parliament, Bill C-63: An Act Respecting Canadian Citizenship. Ottawa: Public Works and Government Services Canada. 1998b. Department of Citizenship and Immigration. News Release Series for Bill C-63. Number 98–59 to 98–65. 1999a. Department of Citizenship and Immigration. News Release for Bill C-16. Number 99–37. 1999b. House of Commons. Standing Committee Citizenship and Immigration. Second Report. Tabled on 14 May. 1999c. House of Commons, Standing Committee Citizenship and Immigration. Minutes of Evidence and Proceedings, for meetings 50, 51, 52, and 54–64. 1999d. House of Commons Debates, 3, 5, 16, 19 February, and 1 March. 2000a. House of Commons, Standing Committee on Citizenship and Immigration, Minutes of Proceedings and Evidence, for meetings held on 29,30 March; 5, 12, 13 April. 2000b. House of Commons Debates, 29 May. 2000c. Senate Committee on Legal and Constitutional Affairs. Minutes of Proceedings, Issue 23, 18 October and Issue 24, 19 October. 2001a. Senate. Bill S-36: An Act respecting Canadian citizenship. 37th Parliament, 1st session. 2001b. House of Commons. Bill C-417: An Act Respecting Canadian Citizenship, 37th Parliament, 1st session. 2002a. House of Commons. Bill C-18: The Citizenship of Canada Act. 37th Parliament, 2nd session. 2002b. Department of Citizenship and Immigration. News Release for Bill C-18. Number 2002-38. 2002c. House of Commons. Bill 203: An Act to Amend the Citizenship Act (Oath of Affirmation or Confirmation). 37th Parliament, 2nd session. 2002d. House of Commons. Bill C-271: An Act to Amend the Citizenship Act. 37th Parliament, 2nd session. 2002e. House of Commons Debates, 7 and 8 November. 2003. House of Commons. Standing Committee on Citizenship and Immigration, Minutes of Proceedings and Evidence, 30 April, 1540–1735; 27 April, 1105– 1315; 22 May, 5 June, 1110–1300; and 10 June, 1020–1235 and 1540–1730.

224 Joseph Garcea – 2004a. House of Commons Debates, 10 February, 413–4. – 2004b. House of Commons Debates, 5 October. Cornea, Carma. 1997. ‘Canadian Citizenship Policy: A Study of Two Parliamentary Committees.’ MA thesis. University of Saskatchewan, Saskatoon, Saskatchewan. Dalphond-Guiral, Madeleine. 2002. House of Commons Debates, 7 November. Dolin, Benjamin, and Margaret Young. 2002. Bill C-18: The Citizenship of Canada Act. Ottawa: Library of Parliament, Law and Government Division. Garcea, Joseph. 2003. ‘The Construction and Constitutionalization of Canada’s Citizenship Regime: Reconciliation of Diversity and Equality.’ Canadian Diversity (Spring): 59–64. Kinsella, Noel. 2000a. Senate Debates, 6 June, 1300–1310; 15 June, 16:30–16:50. – 2000b. Senate Standing Senate Committee on Legal and Constitutional Affairs, 19 October. – 2002. Senate Debates. (Second Reading of Bill S-36, An Act Respecting Canadian Citizenship). 21 February, 1410–1430. Klid, Bohdan. 2003a. Submission on Bill C-18: Citizenship of Canada Act to the Standing Committee on Citizenship and Immigration from the Ukrainian Canadian Congress, Alberta Provincial Council. (Presented to the House of Commons, Standing Committee on Citizenship and Immigration, Edmonton, Alberta, February). – 2003b. ‘Flawed Law Sanctions Two-tiered Citizenship,’ Edmonton Journal, 13 February. Knowles, Valerie. 2000. Forging Our Legacy: Canadian Citizenship and Immigration, 1900–1977. Ottawa: Public Works and Government Services. Masse, Brian. 2002. House of Commons Debates, 7 December, 1620–30. Oziewicz, Estanislao. 1991. ‘Citizenship legislators study rights preamble: Tories believe declaration would reinforce unity plan.’ Globe and Mail, 2 August, A4. Silverstone, Jack. 2000. Executive Vice-President and General Counsel, Canadian Jewish Congress. Submission on Bill C-16 to the Standing Committee on Citizenship and Immigration, 2000. Telegdi, Andrew. 2002. House of Commons Debates, 29 October, 993. – 2003. News Release. 23 January. – 2004. News Release. 21 July. – 2005. News Release. 8 February. Young, Margaret. 1998. Canadian Citizenship Act and Current Issues. Ottawa: Library of Parliament, Law and Government Division, 1998. – 2000. Bill C-16: The Citizenship Act of Canada. Ottawa: Library of Parliament, Law and Government Division.

9 The Liberal Party, Insensitivity, and Western Canadian Agriculture: Does the Account Still Stand Up? grace skogstad

Over his distinguished and fruitful career, David Smith has elucidated the principles, functioning, and implications of the political institutions that comprise Canadian political life. The cabinet, Parliament, the caucus, the Liberal party, the Crown and our non-republican character have all received his close scrutiny. His impeccably researched and elegantly written books and articles on these subjects have illuminated, for myself and countless other students of Canadian politics, our norms and practices of governing. David’s writings on the political culture of western Canada also help us to understand the nature and source of the region’s tensions with our federal government and dominant national party. David’s inquiry into the decline of the Liberal party in western Canada, published in 1981 under the title, The Regional Decline of a National Party, intersected with and informed my own early work on Canadian agricultural policy. Agricultural policies, alongside bilingualism, figured large in the book’s explanation of why the Liberal party of Canada had lost the support of western Canada. In rich detail, it chronicled the party’s record on agricultural issues from the early decades of the twentieth century. The history was one of obstructing farmers’ demands for a compulsory grain marketing board in the 1920s and 1930s, skirting government responsibilities to market prairie wheat in the 1950s and 1970s, reversing electoral promises in the 1960s, and mishandling grain transportation issues and the rationalization of the railway transportation system in the 1960s and 1970s. Whereas the farm policies of the Diefenbaker Conservatives had displayed responsiveness and confidence in western Canadian farmers, the Liberal government paid farmers not to grow wheat in the late 1960s and commissioned a report whose prognosis for Canadian agriculture envisaged the disappear-

226 Grace Skogstad

ance of thousands of inefficient family farmers. It was such insensitive policies and the Liberal party’s failure, in comparison to Conservative governments, to give farmers the ‘assurances of security they continually sought’ (Smith, 1981: 145, 146), that had caused the party’s decline in the region. In accounting for Liberal party agricultural policy failure, David laid the blame on a combination of weak representation of western, agrarian Canada in the Liberal caucus and the cabinet tradition of deferring to ministers on regional matters (ibid.: 93). Given that the band of western Liberal MPs was ‘rarely typical of those whose views they profess to express,’ how could one reasonably expect them to mediate the claims of westerners? (ibid.: 94) But here, as in other writings, he also implicated non-institutional factors in the region’s disaffection from the centre: its geographic isolation from central Canada, distinctive political culture, and staples and export-dependent economy which leaves the region unable to assert any significant control over its economy. If unresponsive agricultural policies were the most proximate factor in western farmers’ disaffection with the Liberal party, David was careful to point out that Canadian institutional practices, as well as the history, geography, and political economy of western Canada made their own contribution both to those policies and prairie farmers’ alienation from Canada’s dominant political party. More than two decades have passed since David charged the Liberal party – correctly in my view – with agricultural policy insensitivity. Since then, a Progressive Conservative government has left its own legacy of agricultural policy, as has another period of Liberal party rule. Developments in the international political economy, including regional and multilateral trade agreements, have further exposed the prairie’s agricultural economy to events beyond Canadian borders, and tested the will of national governments to help the region cope with and manage new external challenges. What does the record reveal? Do Liberal government policies continue to be unresponsive? How do they stack up against the 1984–93 Tory government interlude? And if the answer is poorly, does the primary Smithian explanation – weak and ineffective representation in a cabinet whose functioning stifles the representation of regional interests – still hold? On the face of it, it would appear to. Although the Liberal party’s fortunes in prairie Canada improved dramatically in one (1993) election since 1980, they have since fallen markedly, and the party continues to be woefully weak in western Canada (see table 1).

The Liberal Party, Insensitivity, and Western Agriculture 227 TABLE 1 1984–2004 General Elections: Seats by Party in Prairie Region

Progressive Conservative Reform Conservative Liberal NDP Total

1984

1988

1993

1997

2000

39

36

1 27

2 35

37

2004

1 4

5 13

21 6

9 9

9 6

46 6 4

44

54

54

54

54

56

The analyses that follow suggest that it is time to re-examine both the charge of insensitive Liberal agricultural policy as well as the factors that contribute to and hamper policy responsiveness. By what benchmarks can policy sensitivity be appraised? Implicit in The Regional Decline of a National Party is the assumption of shared common needs across, if not the entire prairie farm community, at least among its grain-growers. To the degree that all farmers seek income security or markets for their grain, then policy sensitivity means responding to those needs. However, the chronicle of the agricultural policy debates of the 1960s and 1970s in The Regional Decline of a National Party made evident that if there were shared needs, there was precious little consensus across farm organizations on how they should be realized. Sharp divergences in the preferences of the prairie farm – and grain – community on fundamental policy issues were evident even then. That more was not made of them was likely because prairie farmers’ voting behaviour made it clear they were virtually at one in finding little to applaud in Liberal agricultural policies. The reality of deep discord within the prairie agricultural community on many of the important policy debates of the past three decades makes elusive the search for sensitive public policies. It also suggests that substantive policy outcomes deemed responsive by one group of farmers are likely to receive the opposite verdict from another. Given this situation, how then can policy sensitivity be appraised? In a region whose political culture is marked by traditions of popular authority, in which ‘the people’ are viewed as the constituent power, policy sensitivity necessitates meaningful opportunities for public consultation and debate. Democratic procedures of policy-making that provide opportu-

228 Grace Skogstad

nities for the agrarian community to engage directly and deeply in policy debates, and to have input into policy formulation, cannot always be expected to bridge its internal cleavages. Nor do they necessarily bring political benefits to the sponsoring political party. However, alongside measures which determine the responsiveness of political parties to the objective needs and self-defined preferences of prairie farmers, popular mechanisms of policy formulation are either an important criterion of policy sensitivity or a prerequisite to it.1 The discussion that follows examines the agricultural policy record of the last Trudeau Liberal (1980–4), Mulroney Conservative (1984–93) and Chrétien Liberal (1993–2003) governments. It focuses on the three issues of railway freight rates, farm income support, and orderly grain marketing. Space limitations preclude discussion of other issues, including international trade policy and the grain-handling and transportation system, that have also gripped western Canadian farm politics. The discussion of the first two issues is relatively brief in order to leave room for a fuller examination of orderly grain marketing and the lessons it affords regarding the opportunities for and constraints to sensitive and responsive agricultural policy formulation. Beyond demonstrating the limits of consultation in a deeply fractured agrarian community, orderly grain marketing also helps to clarify the not insignificant scope of individual political ministers to act as regional ministers in a cabinet whose modus operandi is normally brokering national, not sectional interests (Smith, 1995: 397–8). Overall, the analyses reveal that, aside from the issue of freight rates, the Liberal and Conservative records are not much different in their degree of responsiveness to prairie farmers’ needs. The Conservatives showed early sensitivity on the issue of income support whereas the Liberals’ fiscal support often appeared grudging and coming only at the eleventh hour. Given the deep divisions in the farm community over orderly marketing, both governments inevitably alienated some farmers as they chose to advance the preferences and interests of others. Nor did the two political parties differ appreciably in the efforts they expended to engage the farm community in policy consensus-building. If the Conservative government arguably enjoyed more success in this endeavour, it was in no small part because aggregative outcomes were possible on the issues they tackled – income stabilization, for example – whereas they were not on the issue – orderly grain marketing – that dominated the agenda of the Liberal government throughout the 1990s.

The Liberal Party, Insensitivity, and Western Agriculture 229

Grain Freight Rates In two steps, a decade apart, the Liberal party eliminated an eightyyear-old statutory obligation on railways to transport prairie grain at fixed and low costs to farmers. The failure of the Crow’s Nest freight rates to be adjusted over time consistent with grain transportation costs led the railways to call for their suspension from the 1950s onwards. Farmer opposition to this request resulted in the government of Canada subsidizing railway costs, but this solution was both costly and ineffective in eliciting better performance from the railways. The first blow was struck to subsidized grain freight rates in 1984 when legislation introduced by the Liberal transport minister ended the statutory rates and replaced them with a ‘Crow benefit’: an annual payment in excess of $650 million from the government of Canada to the railways to compensate them for grain transportation costs. The Crow benefit required farmers to assume an increasingly higher proportion of grain transportation costs. By the mid-1990s, prairie grain growers paid between 30 per cent and 50 per cent of the export freight bill, and the federal government’s annual payment to the railways cost $560 million. This fiscal burden on a debt-laden and cash-strapped national government set the stage for the second blow to subsidized freight rates. The Liberal finance minister eliminated the Crow benefit in his 1995 budget. The government compensated farmers for the termination of export grain subsidies, providing them with a one-time payment of $1.6 billion, plus $300 million for adjustment assistance. However, agricultural economists argued that ‘the true value of the lost benefit was three to four times that amount’ (Schmitz et al., 2002: 173). Grain freight rates continue to be regulated but farmers pay more to ship grain and, with the downward trend in real grain prices and a stagnant international wheat market, their farm-gate revenues are considerably lower as a consequence (Qualman and Wiebe, 2002). The 1984 replacement of the statutory Crow rates with the Crow benefit payment to the railways followed a prolonged and divisive debate in the prairie community. Two features of that debate are especially striking. First, it revealed there was no common interest on subsidized grain freight rates across the three prairie provinces, across livestock and grain growers, and not even among grain growers themselves. Second, the debate indicated that the Conservative party, as the official opposition, was no better equipped to bridge the prairie divide

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than the Liberal party proved to be, and raised the possibility that a Conservative government would likely have followed a course of action no more sensitive to grain growers’ concerns than that taken by the Liberal government (Skogstad, 1987: chapter 6). In office, the Conservative minister of transport left intact the Trudeau government’s compromise when his own effort to revisit the issue of whether producers or the railways should receive these payments found positions had not softened. When the Crow benefit was eliminated in the 1995 budget, the political context was quite different. In place of the NDP defending the freight subsidies, the Reform party, as the de facto official opposition for western Canada, put up no fuss. Even though the farm community had not been formally consulted prior to the abandonment of freight rate subsidies,2 they offered little vocal opposition, seemingly silenced by then unusually high grain prices. Unlike the roar that greeted the 1984 elimination of the statutory obligation, only a whimper accompanied this second, fatal blow to the prairie farmers’ magna carta (Smith, 1981: 24). Price and Income Stabilization Prairie farm incomes have been highly volatile over the past two decades, fluctuating markedly in response to American farm policies and world demand. They have also been declining, with high income years (1985–6 and 1993–6) being the exception (Brinkman, 2002). Readiness to stabilize and support farm incomes by means of government financial transfers has therefore been an important measure of political party responsiveness to the prairie farm community. Albeit more tangible, so has been the rhetoric or discourse that surrounds government responses to farmers’ lobbying for financial assistance. Do governments perceive the demand to be a legitimate one, defended as supporting a vital sector, or money down the drain for a sunset industry? Do they attempt to deflect the responsibility for plummeting farm incomes elsewhere – to provincial governments, external governments’ subsidies, or the individual farmer himself/herself? While tangible financial support ultimately counts for more than rhetoric, how governments answer questions like these figures large in the farm community’s evaluation of political parties’ responsiveness. How do the Mulroney and Chrétien governments compare in these two respects? And how have prairie farm incomes fared over the past two decades?

The Liberal Party, Insensitivity, and Western Agriculture 231

Government transfers in support of prairie farm incomes increased in the early years of the Mulroney government. The stimulus was changes in American farm policy which dramatically lowered global grain prices, and Canadian farmers’ returns from the market place. Whereas in 1984 government net transfers to prairie farmers were around $700 million, they hit record levels of $2.5 billion and $2.2 billion in 1987 and 1988, respectively, with the implementation of the Canada Special Grains Program. Thereafter, government transfers declined. As farmers’ returns from the market recovered between 1993 and 1996, government transfers dropped off, reaching a low of $200 million in 1995. From 1997 onward, farm incomes began to slide. By the late 1990s, low international prices and climate-induced low yields, combined with rising input (fuel, machinery, fertilizer) costs, resulted in historically low returns for grain and oilseed growers. Under strong pressure, government support increased, reaching $2 billion in 2001 (Brinkman, 2002: 400). The overall picture then is one of bipartisan support for the prairie economy. Both Conservative and Liberal governments found it necessary to make significant fiscal transfers to the prairie farming community if it were to be sustained. Brinkman (2002: 400) reports that net government transfers and rebates from 1985 to 2001 contributed the equivalent of 77 per cent of all prairie net farm income and that the grain sector received most of this financial assistance. If the fiscal balance sheet does not look much different, how about the rhetoric? The 1986 speech from the throne promised the Conservative government would ‘spare no effort’ in protecting farmers from unfair trade competition and would work with farmers and provinces to find solutions to farm income problems (Wilson, 1986: A4). Prime Minister Mulroney’s personal attention to agriculture and his government’s billion dollar payments to the grain sector in the midst of its financial crisis in the mid-1980s earned him the gratitude of grain farmers, at least during his first term. On matters of income support, as on other issues, the Conservative government appeared to be listening and learning, a process that was expedited by strong western Canadian representation in the Conservative caucus and cabinet, and Conservative premiers in prairie capitals.3 But this early enthusiasm did not last; in the 1988 election the Tories lost ten seats on the prairies and failed to secure a single one in the 1993 election. The Liberal government’s rhetoric was less uplifting, and indeed, often at odds with its behaviour. Throughout the 1990s, building on the

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structures put in place by the Conservative agriculture minister, Don Mazankowski, federal officials and ministers drew farm organizations (and provincial governments) directly into designing income stabilization programs that would help farmers to manage their income risks (Coleman and Skogstad 1995). And, as noted above, when the farm income crisis put the entire prairie agricultural economy in jeopardy in the late1990s and early 2000s, the Liberal government came through with financial assistance. But too often the Liberal government and its officials gave prairie farmers the impression that theirs was a sunset industry, badly in need of fundamental restructuring, and that it was no longer willing as a government to prop it up. Federal dollars have been forthcoming only after massive public lobbying that has required western farmers to bring to bear the combined pressure of premiers, opposition parties, parliamentary agriculture committees, and the government’s own rural caucus. And sometimes that aid has been preceded by treatment that has seemed humiliating, such as that dealt premiers Romanow and Doer, who, having journeyed to Ottawa to plead the case for prairie agriculture to the prime minister, were presented with data by Agriculture and Agri-Food officials that refuted their claims of a farm income crisis. Nor was it easy for prairie farmers to be charitable to a federal agriculture minister who publicly stated that if farmers could not earn a living at farming they ‘should consider their options’ (Wilson et al., 2001: 1). The Canadian Wheat Board The story of western farmers’ struggle for a compulsory national grain marketing board has been well chronicled elsewhere, including in The Regional Decline of a National Party. Among the salient facts in the Wheat Board’s history are that farmers’ quest for a monopoly board was opposed by the Liberal party, and that when, in government, it inherited the voluntary board created by the Bennett Conservatives in 1935, it tried to undermine it. When the King government did grant the Wheat Board monopoly powers to sell prairie wheat in 1943, it did so not in response to farmers’ demands but in order to ensure sufficient supplies of grain to meet commitments to Britain and other allies. When the board’s monopoly was renewed and extended in the postwar period (see table 2), it was in order to fulfil commitments to wartime allies and in response to widespread support from other political parties, the Canadian Federation of Agriculture, the prairie wheat pools, and the three prairie provincial governments (Thompson, 1996).

The Liberal Party, Insensitivity, and Western Agriculture 233 TABLE 2 Chronology of Canadian Wheat Board Developments 1919

Liberal government creates a wheat board to market 1919–20 crop. Suspended 1920.

1934

Conservative government creates voluntary Wheat Board which co-exists with the Grain Exchange.

1943

Liberal government gives Canadian Wheat Board monopoly powers to sell wheat in domestic and export markets.

1949

Liberal government extends Wheat Board’s domestic and export monopoly to oats and barley.

1967

Liberal government makes monopoly powers permanent.

1974

Liberal government removes Wheat Board’s monopoly over domestic feed oats and barley; board retains monopoly over barley for human consumption.

1988

Conservative government removes Wheat Board’s monopoly over oats exports.

1993

Conservative government removes Wheat Board’s monopoly on barley exports. Decision overturned by courts.

1995–6

Farmers circumvent Wheat Board to sell grain in the United States.

1995

Alberta government holds plebiscite on Wheat Board; two-thirds of farmers support dual market.

1995

Government appoints Western Grain Marketing Panel.

1996

Group of Alberta farmers launch legal challenge to Wheat Board. Alberta government launches court case against Wheat Board. Panel recommends Wheat Board lose export monopoly over feed barley. Government introduces changes to amend Canadian Wheat Board Act.

1997

63 per cent farmers vote yes in plebiscite to retain Wheat Board’s monopoly. Federal Court upholds Wheat Board’s monopoly powers.

1998

Amendments to Canadian Wheat Board Act give farmers more control over Wheat Board and retain its export wheat and barley monopoly.

1998–2004

Farmers elect a majority of pro-monopoly Wheat Board directors.

In 1974 a Liberal government removed the board’s monopoly over domestic feed grains in response to pressure from eastern livestock farmers in pursuit of cheap feed grains. Western Canadian farmers opposed the change, overwhelmingly believing the board was doing an excellent job selling wheat and feed grains. Farmers liked the equity and stability of its quota and price-pooling system, by which they delivered a fixed quota of grain to an elevator for which they received an initial payment based on the grade of the grain, and, at the end of the crop year, a final payment that yielded them the same price per tonne

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for that grade of grain regardless of when they had delivered it to the elevator. If there were few critics in the early 1980s of the Canadian Wheat Board’s monopoly over sales of wheat and barley for export and domestic human consumption, developments in the United States provoked a change in that sentiment by the decade’s end. In 1985, in a bid to recapture its dominance in international grain markets, lost to the European Community’s aggressive subsidization of grain production and export, the United States implemented its own export grain subsidies. The Export Enhancement Program lowered international grain prices and raised internal grain prices. It made the United States a more attractive market for Canadian grain exporters in the late 1980s and early 1990s, and Canadian exports rose accordingly. Exports of both board grains (wheat and barley) and non-board grains (oats and canola) to the United States were further promoted by the removal of US restrictions on Canadian grain imports in the Canada–US free trade agreement in 1989 (Wilson and Dahl, 1998). The increased access to and attractiveness of the US market has led to both American and domestic criticism of the Wheat Board’s monopoly on export sales of wheat, barley, and oats. A continuing allegation of US grain producers is that the Wheat Board’s monopoly, and the financial underwriting of its transactions by the government of Canada, give Canadian grain growers an unfair competitive advantage. They claim the Wheat Board sets prices below cost in order to undercut US grain growers in their own domestic market, a suspicion fuelled by the unwillingness of the Wheat Board to make transparent its pricing practices. These beliefs have fuelled several American investigations of the Wheat Board, all of which have determined it operates within international trading rules.4 These verdicts have enabled the Liberal government to resist the formidable American pressure and remain resolute in their support for the fundamental pillars of the Wheat Board’s selling powers. But domestic critics who complained that the Wheat Board’s monopoly cost them money and lost opportunities could not be similarly rebuffed. Nor was the Conservative minister in charge of the board, Charlie Mayer, interested in doing so. He responded to pressure for more market freedom coming from the western Canadian Wheat Growers Association and the Western Barley Growers Association, and effective August 1989, he ended the Wheat Board’s forty-year-old monopoly on oats. The action had little economic significance because oats ac-

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counted for less than one-half of 1 per cent of the board’s business. Mayer’s action four years later was more consequential. Reacting again to the commodity organizations that favoured a continental market in barley, Mayer removed the board’s monopoly on export barley sales. The economic and political significance of this move prompted the three wheat pools to mount a successful legal challenge to the action; the court ruled Mayer’s action contravened the Canadian Wheat Board Act. When the Liberals returned to power in 1993 they became responsible for a commercial entity generating $6 billion in annual sales in seventy countries. They also inherited a vocal minority of western Canadian grain growers clamouring for a dual market for barley and grain exports in which the Wheat Board would be one export seller alongside private grain companies. In the mid-1990s their criticisms reached crisis proportions, supported as they were by the Conservative government of Alberta and the Reform party, which enjoyed strong rural western representation in the House of Commons. Individual farmers living near the Canadian–US border, and grouped under the umbrella organization, Canadian Farmers for Justice, circumvented the Wheat Board’s legal authority in 1995–6. They trucked barley across the border to grain elevators in northern US states, where high spot prices allowed them to receive higher prices than they could immediately extract from the Wheat Board, which bases its initial payment on average world-wide prices. The farmers, who lacked the requisite export permit (obtainable only from the Canadian Wheat Board), were found to be acting illegally and were fined. Even while the board’s legal authority was upheld, the breakdown in orderly grain marketing in prairie Canada clearly called for a response from the federal government. This reality became all the more apparent when a plebiscite held by the Conservative government in Alberta in the fall of 1995 showed that two-thirds of Alberta farmers supported a dual market; that is, the option to sell grain to the board or on the spot market. It fell to Ralph Goodale, MP for Regina-Wascana and minister in charge of the Canadian Wheat Board, to resolve the crisis. In the summer of 1995 he established the Western Grain Marketing Panel (WGMP) and asked it to conduct a review of grain and marketing issues, including the future of the Canadian Wheat Board. As it did its work of consulting the farm community in early 1996, the issues and questions at the fore of the grain marketing debate became clearer. Opponents of the Wheat Board framed the issue as a simple one: the freedom to market their grain as they chose. Into this camp fell the Alberta govern-

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ment led by Premier Klein, the Reform party, the Western Canadian Wheat Growers Association, the Alberta Barley Commission, the Western Barley Growers Association, the United Grain Growers, and the loosely grouped border-running renegade farmers. For most of the farm community, however, the issue and questions were more practical and less ideological. A fundamental matter was whether the dual market that many opponents of the board clamoured for was a feasible option. Could the Wheat Board survive if it had to compete with private grain sellers purchasing grain on the spot market? There was also the practical economic question: did the Wheat Board, by virtue of its market powers and expertise, yield higher returns for farmers? Would an end to government guarantees of initial payments mean lower returns? Governance issues arose, as did the operations of the board. Should the board be more accountable to farmers and if so, how would that accountability be accomplished? And how could the board’s operations be made more flexible? On these questions, a member of the panel stated that fifteen town hall meetings, thirteen days of formal public hearings, and 150 oral and written submissions had made only two things clear: prairie farmers were deeply divided on either extreme of the debate but most were looking for some change (Ewins 1996a). The report the Western Grain Marketing Panel issued in July 1996 was a milestone in the debate. Many of its thirty-three recommendations were controversial but none more so than its recommendation that the Wheat Board lose its monopoly over feed barley sales.5 Other recommendations addressed how to make the board’s operations more flexible, including allowing it to make cash purchases of grain, and more democratic, by replacing government-appointed commissioners with farmer-elected directors. The reaction to the panel’s report was predictable. The Western Canadian Wheat Growers Association said it did not go far enough, but wanted Goodale to implement its recommendations quickly. So did the umbrella farm organization in Manitoba, the Keystone Agricultural Producers. By contrast, supporters of the board, not least the Wheat Board itself, condemned many of its recommendations. It said the loss of the export feed barley monopoly would soon put it out of barley marketing altogether. To the panel’s recommended cash price option, the board replied that that option would create a de facto dual market for wheat. The pooled price would consistently look bad in comparison with the cash price, especially during times of rising market or export subsidies, and pressures would mount for more and more cash pricing.

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Goodale called for feedback on the report from farmers and the grain industry by the end of the summer. His decision provided the opportunity for pro-board farm organizations and institutions – the National Farmers Union, the Canadian Federation of Agriculture, the Saskatchewan NDP government,6 the Saskatchewan Wheat Pool,7 and the newly formed Family Farm Foundation – to rally to the board’s defence. Farmers turned out in the hundreds and thousands in prairie cities and towns to say the Western Grain Marketing Panel had not listened to the majority of farmers and to urge the minister not to implement any panel recommendations that would undermine the board’s marketing authority. In early August, five University of Saskatchewan agricultural economists issued a critique of the panel’s recommendations. They recommended against the sale of feed barley on the open market, saying it would erode malting barley premiums and reward cheaters. They urged the minister to move quickly to amend the Canadian Wheat Board Act to create a new governance structure for the board and then to let that new board decide on the agency’s future marketing powers. The governance structure they foresaw was a farmerelected board of directors that would include limited government representation but no grain trade presence. Goodale’s response was to proceed on two fronts. First, in an effort to appeal to what he described as ‘the broad middle ground,’ he introduced legislation in the fall of 1996 to amend the Canadian Wheat Board Act to allow for more flexible pricing arrangements and more democratic and accountable governance. Second, he announced that a plebiscite would be held in February 1997 on whether the Wheat Board should retain monopoly marketing control over all barley exports and domestic sales of malting barley. The plebiscite, he said, was a ‘democratic process’ that was ‘essential to clear the air with respect to barley.’ Further, ‘assuming a solid level of turnout and considering it is a clearcut question,’ he would find the results ‘very compelling’ (Wilson, 1997). Goodale made a strategic choice to put only two ballot options before grain growers. One was the single-seller option which would retain the board’s existing monopoly powers over barley. The other was the open market option which would remove all barley – feed and malting – from the Wheat Board and place it entirely on the open market for domestic or export sales. A dual market was not an option. Goodale had become persuaded that the Wheat Board would not long survive if it had to compete with the grain exchange; the dual market was thus

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simply a transition to the open market. In his plebiscite strategy, he was assailed by board critics and supporters alike, the former condemning him for not allowing the option of a dual market as a ballot choice, the latter for exposing the board to the risk of a plebiscite. The February 1997 plebiscite was a clear victory for the Wheat Board and a defeat for its critics. Over three-fifths of those who cast their ballot (63 per cent) voted to maintain the board as the single seller for all barley except feed barley sold domestically, while 37 per cent voted to remove all barley (feed and malting/food) and place it on the open market for all domestic and export sales. Shortly thereafter, the April 1997 Federal Court ruling on the board’s constitutionality dealt another blow to Wheat Board critics. Asked by the Alberta Barley Commission, the Western Barley Growers Association, and nineteen farmers philosophically opposed to the Wheat Board to find it in contravention of the Canadian Charter of Rights and Freedoms, the court failed to do so. Rather, it affirmed the state’s right to regulate markets, and held that the objective of the Canadian Wheat Board Act, to provide for the orderly marketing of grain, ‘has been a pressing and substantial concern for Parliament since the first monopoly board was created in 1947’ (Federal Court of Canada, 1997: 79). Neither the plebiscite results nor the court ruling put an end to the marketing debate. It continued throughout 1997 as legislation to amend the Canadian Wheat Board Act was introduced and debated in Parliament. It picked up steam again after the 1997 election, when slightly amended legislation was introduced. Presenting the initial legislation, Goodale described it as ‘aimed at meeting the reasonable expectations of a majority of western grain producers.’ In his view, and based on polling results, prairie grain growers divided roughly into three equal groups: one-third seeking major changes in the Wheat Board, one-third arguing for minor changes, and one-third in favour of either the status quo or an increase in the authority of the board. Each of these groups, as well as the opposition parties and provincial governments, had ample opportunity to air their concerns between the time the original bill to amend the Wheat Board Act was introduced in December 1996 and the final bill received approval in June 1998. Both the House and Senate standing committees on agriculture held hearings in Ottawa and western Canada. As Goodale described them, the amendments to the Canadian Wheat Board fell into three broad categories. The first related to the governance and accountability of the board. The government-appointed com-

The Liberal Party, Insensitivity, and Western Agriculture 239

missioners were replaced by a fifteen-member board of directors, the majority of whom (ten) are farmers elected by farmers. The proposal in the original bill for a set of interim directors to be appointed by the federal government, pending elections of farmer directors in 1998, met with wide-scale opposition, and was eliminated in the bill which received parliamentary approval in June 1998. These governance changes are viewed as making the operations of the board more transparent and accountable to farmers by allowing farm directors to exercise ‘real power and real responsibilities,’ and provide greater democracy and accountability. The second set of changes makes the Wheat Board’s operations more flexible and responsive to producer needs by, for example, providing for new pricing options and cash purchases. The Wheat Board had argued for many of these changes. And the third category of changes relates to the Canadian Wheat Board’s mandate. The board’s existing monopoly (over export sales of barley and wheat and wheat for domestic consumption) has not altered. But any significant or fundamental changes in the future to its mandate are conditional upon an affirmative vote among farmers. If farmers want to end the Wheat Board’s monopoly, it is now in their direct power to do so. The federal government continues to guarantee the board’s initial payments at the beginning of each pooling period, its credit sales program, and its annual operational borrowing. What does this substantive outcome and the process which leads to it suggest about Liberal party sensitivity and responsiveness to agrarian concerns in western Canada? Is the outcome one that responds to the needs and majoritarian preferences of prairie grain farmers? For the minister who steered the policy debate, it does. As Goodale phrased it in 2003, while it was likely that under an open market some well placed farmers – larger, more favorably placed vis-à-vis the US border, with good access to US information and the marketing system – will do well and will hit market peaks and cream off the best prices and probably benefit overall as individuals, compared to the more collectivist approach of the Canadian Wheat Board ... this will tend to be the minority of farmers. The majority of farmers will be worse off at the end of the day.

Goodale’s conclusion that the Wheat Board served the aggregate interest of prairie grain growers was informed by empirical studies of western Canadian agricultural economists which showed that the board could extract premiums where they were to be had.8 His belief that he

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had captured the preferences of the majority of prairie farmers in retaining the board’s monopoly, but reforming its governance structure and mode of operations, appears to be vindicated. Two elections of board directors held subsequently have returned a majority in favour of single desk selling. Still, the jury remains out for the board’s most committed supporters (the National Farmers’ Union, the Saskatchewan Wheat Pool, and the New Democratic party). While applauding the minister for retaining the board’s monopoly powers, they worry that other changes he has engendered could well undermine the board sooner rather than later.9 What about the policy process itself? Here a stark contrast can be drawn between the unilateral action (subsequently ruled illegal) of Progressive Conservative Minister Mayer to end the board’s monopoly over export barley sales to the United States, and Goodale’s consultative exercise. In his summation to the House of Commons of the bill to amend the Canadian Wheat Board Act, Goodale described the policy process that resulted in the 1998 legislation as: probably the most exhaustive in the history of the western grains industry. Countless meetings, hearings, seminars, surveys, focus groups, questionnaires, votes, pamphlets, petitions, faxes, e-mails, Internet messages, personal and public letters and good old fashioned phone calls. More people had more opportunity to participate in this very public and transparent process than ever before, and literally thousands did so.

If the prairie farm community still remained divided, it was not for lack of effort on the part of the responsible minister to bridge its differences. Conclusion In the early 1980s David Smith appropriately charged the Liberal party with historical insensitivity to western agrarian needs and concerns. If prairie farmers’ electoral behaviour is a measure of their current appraisal of the Liberal party’s agrarian policies, that judgment continues to be a negative one, as the elections of 2000 and 2004 indicate. This disenchantment with the Liberal party owes much to the prolonged distress in the prairie farm economy over the past thirty years. Farm incomes have not kept up with inflation or the rest of the economy (Brinkman, 2002). The elimination of government transportation subsidies for grain exports added to grain farmers’ operating costs and

The Liberal Party, Insensitivity, and Western Agriculture 241

contributed to the deteriorating economic situation. In office throughout the 1990s and into the twenty-first century, the Liberal party was blamed for the fact that financial support for Canadian grain producers lagged significantly behind that received by their American and European counterparts. Even if one shifts the focus from expenditure support to regulatory policy, the Liberal record is unlikely to earn the party much kudos in the region. It has retained the export monopoly of the Wheat Board and challenged the perception that the party viewed the board simply as ‘an affair of convenience’ (Smith, 1991: 438). And yet there is little evidence that the Liberal party received the credit an outside observer might believe it deserved for maintaining an export monopoly that independent analysis indicates provides prairie grain growers as a whole with higher returns from international grain sales than they would otherwise reap. The most ardent board supporters worry that the changes implemented in the board’s operations will undermine it before too long. And those who oppose the board’s monopoly can only decry the Liberal party’s strategy of reforms to the board that stopped short of ending its monopoly. Indeed, the Wheat Board debate illustrates the difficulty that any government faces in devising agricultural policy for western Canada. While it may still be possible to talk about one shared regional interest when it comes to government fiscal support for stabilizing producers’ incomes, it is clear that on many other matters there is no single agrarian interest. The debate over orderly grain marketing was not a dispute between the federal government and prairie grain farmers; it was a dispute among farmers themselves. Because farmers collectively could not resolve it – their farm organizations were not up to the task – it fell to Ottawa to do so. In this context of intra-regional division, any government was bound to be perceived as insensitive by that group of prairie farmers whose policy preferences were not reflected in the eventual policy outcome. The behaviour of the responsible minister, Saskatchewan’s Ralph Goodale, as he assumed that task of intra-regional consensus-building sheds light on both the policy-making role of cabinet ministers and agricultural policy-making more generally. Unlike his Conservative predecessor (Charles Mayer), Goodale did see his role in the terms that David Smith has defined as that of cabinet ministers: that is, as agents of consensus-building rather than proponents of an ideological posi-

242 Grace Skogstad

tion. Whereas Mayer was prepared to be guided by his ideology and ignore the wishes of the majority of prairie grain farmers, Goodale was not. Nonetheless, Goodale’s strategic choices during the prolonged grain marketing debate had clear ideological implications insofar as they led to a quite different outcome to the debate than would have resulted from either a Conservative or Reform party government. The Wheat Board outcome left no doubt as to the capacity of cabinet ministers to frame and manage a policy debate in a manner that is consistent with their definition of sectional interests. However, Goodale’s behaviour suggests a different role for a regional minister than was historically assigned: as a central player in the politics of intra-sectional, rather than cross-sectional, integration. Goodale saw his task to be that of resolving an issue on which there was intense intra-regional conflict, and managing it via a process that lent legitimacy to the outcome. That his party receives so little credit for preserving an institution that most prairie grain farmers support is one of the great ironies of prairie agrarian politics.

NOTES 1 The Regional Decline of a National Party argued that substantive policies alone were farmers’ benchmark of responsiveness. It concluded that the numerous extra-party and extra-parliamentary channels that Liberal governments had used to consult the prairie community on outstanding issues served only to expose the organizational fragmentation of the farm community and to provide the opportunity for public dissent. I depart from this perspective. 2 The minister of agriculture and agri-food, Ralph Goodale, consulted a hand-picked group of farm leaders and academics on whether the producer compensatory payment should be paid up front or over several years (Skogstad, 1998). 3 The Conservatives have ruled Alberta since 1970. Saskatchewan had a Conservative government from 1982 to 1991 and since then, an NDP government alone or in coalition. In Manitoba, the NDP governed from 1981 to 1988, the Conservatives from 1988 to 1999, and the NDP since then. 4 Most recently, in 2003, the United States lodged a formal complaint with the World Trade Organization that alleged the Wheat Board does not operate in

The Liberal Party, Insensitivity, and Western Agriculture 243

5

6

7 8

9

a commercial and non-discriminatory manner, as required by WTO rules. The WTO 2004 ruling upheld the Wheat Board and legal entity. The panel recommended the board retain its export monopoly over malting barley, most of which, like wheat, is exported. Three-quarters of feed barley is used domestically. It ran a full-page ad in the Western Producer explaining why dual marketing would destroy the board, and included a form for farmers to fill in and return to the provincial agriculture minister. Later Goodale chastised the Saskatchewan Wheat Pool for not being a more vocal supporter of the Canadian Wheat Board. See Ewins (1996b). Goodale found ‘compelling’ a report by Professors Daryl Kraft, Hartley Furtan, and Ed Tyrchniewciz that concluded that the Wheat Board resulted in higher returns to farmers than would have resulted from multiple buyers, and that these premiums would disappear under a dual market (Western Producer, 1996). These aggregate prairie benefits contrasted with a report prepared by two other agricultural economists for the Alberta government which showed the Wheat Board monopoly cost Alberta farmers money. They fear provisions to allow cash payments will undermine price-pooling, and worry about the consequences of changes that restrict the government’s underwriting obligations to initial payments only and which require the establishment of a farmer-financed contingency fund to deal with new financial risks.

REFERENCES Brinkman, George L. 2002. ‘Report Card for Prairie Agriculture.’ Canadian Journal of Agricultural Economics 50, 4: 391–413. Coleman, William D., and Grace Skogstad, 1995. ‘Neo-Liberalism, Policy Networks and Policy Change: Agricultural Policy Reform in Australia and Canada,’ Australian Journal of Political Science 30: 242–63. Ewins, Adrian. 1996a. ‘Time for talk over, toughest task ahead.’ Western Producer, 4 April, 4. Ewins, Adrian 1996b. ‘Goodale’s CAB plan said to satisfy middle ground.’ Western Producer, 10 October, 5. Federal Court of Canada. Trial Division. 11 April 1997. Archibald et al. v. Her Majesty the Queen and the Canadian Wheat Board. Ottawa. T-2473-93. Goodale, Ralph. 1996. Testimony. Proceedings of the House of Commons Standing Committee on Agriculture and Agri-Food, 12 December.

244 Grace Skogstad – 1998. Bill C-4: An Act to amend the Canadian Wheat Board Act. Proceedings of the House of Commons, 17 February. – 2003. Interview with the author. Ottawa, 4 December. Qualman, Darrin, and Nettie Wiebe. 2002. The Structural Adjustment of Canadian Agriculture. Ottawa: Canadian Centre for Policy Alternatives. Schmitz, Andrew, Hartley Furtan, and Katherine Baylis. 2002. Agricultural Policy, Agribusiness, and Rent-Seeking Behaviour. Toronto: University of Toronto Press. Skogstad, Grace. 1987. The Politics of Agricultural Policy-making in Canada. Toronto: University of Toronto Press. – 1998. ‘Agriculture and Agri-Food Canada: Program Review I and II.’ In Managing Strategic Change: Learning from Program Review, ed. Peter Aucoin and Donald J. Savoie. Ottawa: Canadian Centre for Management Development. Smith, David E. 1981. The Regional Decline of a National Party. Toronto: University of Toronto Press. – 1991. ‘Grits and Tories on the Prairies.’ In Party Politics in Canada, ed. Hugh Thorburn. 6th ed. Scarborough: Prentice-Hall. – 1995. ‘The Federal Cabinet in Canadian Politics.’ In Canadian Politics in the 1990s, ed. Michael Whittington and Glen Williams. 4th ed. Toronto: Nelson Canada. Thompson, John Herd. 1996. ‘Farmers, Governments and the Canadian Wheat Board: An Historical Perspective, 1919–1987.’ Statement submitted to the Federal Court of Canada, Trial Division, Archibald et al. v. The Queen and the Canadian Wheat Board. Western Producer. 1996. ‘CWB study ‘compelling’: Goodale.’ 22 February, 5. Wilson, Barry. 1986. ‘Throne speech has more than usual on agriculture but is mum on payments,’ Western Producer, 9 October, A4. Wilson, Barry. 1997. ‘Implications of vote unclear.’ Western Producer, 13 February, 42. Wilson, Barry, Karen Briere, and Michael Raine. 2001. ‘Farmer rallies carry message to Ottawa,’ Western Producer, 22 March, 1. Wilson, William W., and Bruce Dahl. 1998. ‘Pressures and Challenges in Integrating the U.S.–Canada Grains Sector,’ American Review of Canadian Studies 28, no. 3: 355–77.

10 The West in Canada: Through the Scholarship Lens of David E. Smith roger gibbins

There is a different culture in the West than there is in Central Canada ... It’s not a different civilization but certainly it’s a different form of culture than exists elsewhere. – Pierre Elliott Trudeau, 1973, cited in Smith (1992: 57)

Since the first days of European settlement in western Canada there has been a vigorous and often acrimonious debate about the region’s place in the national community, one that is alive and well today. This debate raises two interesting questions. First, is there in fact a ‘West,’ a regional community that is greater than the sum of its provincial parts, that transcends quite distinctive provincial communities? And second, what is the relationship between partisan politics and regional discontent? Is the latter simply a reflection of the former, are western Canadians just sore losers in the national game of party politics? Both questions are ripe with contemporary significance, and both call for the historical analysis that the scholarship of David E. Smith provides. I should state at the outset, however, that I do not mean to imply that Smith has been obsessively concerned with these questions, or indeed with an analysis of western discontent. Some of his most recent and important works, including The Invisible Crown (1995) and The Republican Option in Canada (1999), touch only fleetingly on western Canadian themes and issues; they have larger fish to fry. The Canadian Senate in Bicameral Perspective (2003) stands defiantly apart from most of the literature on regional discontent by building a strong case for the Senate status quo; Smith is alone in my experience in arguing the merits of an appointed, unequal and ineffective Senate. Nonetheless, Smith’s schol-

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arship, and particularly his early scholarship, contributes significantly to our search for answers to these questions. This is partly because it is so firmly grounded in the Saskatchewan experience; Smith brings to his work a rich personal exposure to western Canadian political life. In short, he knows of what he writes. Perhaps of even greater importance, much of his early work centred on Liberalism in the West, and there is little question that the complex relationship between the Liberal party and the West lies at the core of western discontent. As Smith himself argues: The interplay of region and nation has been mediated in the past by a number of institutions, foremost of which has been the political parties among whom the Liberal party has succeeded in establishing the broadest spectrum of support. Its failure in the West over the last quarter century demands explanation if the consequences for region and nation are to be understood. (1981: 17)

The collapse or, more appropriately, the abdication of the Liberal party as an effective mediator between region and nation goes a long way in explaining contemporary western discontent. Now for some readers, Smith’s focus in much of his work on Liberalism in the West might seem odd; this is particularly true for those who identify the major regional players as a robust string of protest parties ranging from the Progressive Party of Canada, the Cooperative Commonwealth Federation (CCF) and Social Credit through to Reform and the Canadian Alliance, and not to forget the John Diefenbaker Progressive Conservatives. Smith, it might appear, is illuminating the margins rather than the central text of regional politics in the West. However, I would argue that he has picked just the right thread to pull from the tangled skein of western Canadian political discontent. Ironic though it may seem for contemporary readers, the history of the Liberal party in the prairie West does indeed lie at the heart of the complex relationship between region and nation. It should also be noted in this respect that Smith’s detailed analysis of Liberalism ranges chronologically across the region’s political history from the early turn-of-the-century prairie experiences of Jimmy Gardiner,1 premier of Saskatchewan and then minister of agriculture in the Liberal government of William Lyon Mackenzie King, through to Pierre Elliott Trudeau’s legacy of regional disillusionment. It thus moves from when the Liberals were the dominant political force on the prairies to the party’s dog days in the late

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twentieth century. For those looking for more than a snapshot of western discontent, Smith’s scholarship provides a vitally important historical narrative. A Transcendent West David Smith’s scholarship offers a virtual treasure trove to those who argue for the existence of a transcendent regional community. There is no doubt that the West is a real regional community for Smith, that it is more than a geographic collection of distinct provinces, more than the sum of its parts. However, his West is the prairie West stretching from the edge of the Canadian Shield to the foothills of the Canadian Rockies. It does not incorporate British Columbia, and thus departs from the more inclusive regional terminology of the Canada West Foundation or the Western Premiers’ Conference (which now also includes the three territorial leaders from the North). At the same time, it does correspond to the terminology recently adopted by the federal government in the February 2004 speech from the throne in which the government refers to ‘British Columbia and the West.’ The features that brought the prairie West together as a distinctive regional community and set it apart from the rest of Canada during the first half of the twentieth century – the over-arching grain economy, the prairie skies and landscapes, ethnic diversity, the struggle of agricultural settlement, the absence of a dualist English-French foundation – are richly illustrated in Smith’s work. While he does not violate our conventional understanding in so doing, he does stand out by the place of pride he gives to politics and political tradition in knitting together the prairie region. For example, in his discussion of the Liberal party on the prairies, Smith notes that ‘the triumph of the Diefenbaker Conservatives and the rout of the Liberals for their perceived neglect of the region’s basic industry was thus achieved by the combination of those elements central to the prairie experience: plural society, staple economy, and non-conformist politics’ (1981: 47). Although Smith acknowledges the regional integration from the grain economy, one senses that his prairie West is more a political region than it is an economic region. Admittedly, the two may have been inseparable in the early decades of the twentieth century, but the political region has waxed at the turn of the twenty-first even as the economic region has waned. Yet while Smith acknowledges regional, pan-provincial realities in western Canada, he is careful not to overplay the regional hand. In an

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early work, ‘Interpreting Prairie Politics,’ he laid down a standard to which his later writings faithfully adhere: On the one hand, sharing in the wheat economy of the West and faced with common problems arising from the federal system, the prairie provinces have provided a great forum for regional political activity. On the other hand, each province has created its distinctive political system wherein indigenous political movements have flourished. (1973: 103)

Smith is never blind to differences among the prairie provinces, and individual provinces are never submerged in regional discourse about the West (something to which my own writing is prone). When he writes about a transcendent West, as he often does, Smith is careful not to fold Saskatchewan entirely into the larger prairie West. While his home province is not set apart from the West, and indeed cannot be, its distinctive features are brought fully into the analysis. For instance, Smith points out that the Liberal party has had a much more central role in Saskatchewan, at least until recently, than it has had in either Alberta or Manitoba. His statement that ‘the continuity of Saskatchewan politics since 1905 has been found in the Liberal party’ (1975: 324) could not be made for the neighbouring provinces. Thus the integrating theme stretching across his work on western Canadian politics – the role of the Liberal party in providing or, more recently, in failing to provide, the critical link between the regional and national communities – plays out more forcefully in Saskatchewan than elsewhere, although it does not play out in Saskatchewan alone. This attention to the distinguishing features of the Saskatchewan political experience and tradition does not descend into intellectual jingoism; Smith does not let the Saskatchewan experience speak for the West as a whole, as Alberta academics and indeed premiers are sometimes prone to do for the Alberta experience. Saskatchewan is not treated as the West writ small, nor is the West treated as Saskatchewan writ large. Although this is not an easy balance to strike, Smith does so with rare aplomb. Few scholars of his generation – of my generation – are as adept in weaving together regional themes with provincial distinctiveness: ‘although the prairie provinces share a regional political culture,2 each of them can claim its own distinctive set of characteristics. It is this very pluralism which explains the region’s rich heritage of protest’ (1992a: 48). It is important to note that the bulk of Smith’s western Canadian

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research focuses on a time when the grain economy still had a strong if waning influence on the prairie West. The grain economy, and its associated problems and political protest, continued to provide much of the regional glue for the three prairie provinces; it imposed a common frame of experiences, perceptions, and grievances that established a distinctive regional political agenda. Today the production and marketing of grain imposes far less of a constraint on a diversified regional economy and highly urbanized provincial societies. It is now impossible, for example, to address regional concerns and priorities within the context of a single federal department, as Jimmy Gardiner was able to do in the past through the Department of Agriculture. In this respect, then, Smith’s analysis might seem a bit dated, a source of historical rather than current insight, for readers trying to understand the contemporary West. (This, of course, is a charge that can be applied, no matter how unfairly, to most historically-grounded research.) However, there is nothing dated about the insights he provides into the partisan dynamics of regional discontent. In particular, his assessment of Liberalism in the West rings as true in 2005 as it did in the 1970s and 1980s. Partisan Dynamics There is no shortage of scholarship plumbing the partisan ramifications and drivers of western Canadian discontent. The research community has accumulated an impressive body of literature on the protest movements and parties that shaped western Canadian politics in the early decades of the twentieth century – the Progressives, the Cooperative Commonwealth Federation, and Social Credit. Such protest, more than anything else, set the West apart from mainstream Canadian political life. More recently, a substantial body of literature has emerged on the Reform Party of Canada, on how Reform gave voice to regional discontent (‘The West wants in!’) and, by so doing, inadvertently deepened the political divide between the West and the rest. In this context, Smith’s interest in the partisan dynamics of regional discontent fits nicely within the mainstream regional literature; he would appear to be working with well-tilled soil. Moreover, Smith does little to challenge the dominant explanations for regional discontent. In his discussions about the centrality of the grain trade, and the frustrations the western Canadian agricultural community had with the federal government, Smith builds nicely on the work of others, adding his own detail and nuance. With-

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out question, but also without shrillness, he makes a strong case for the reality of western Canadian discontent. Where Smith adds an important element to the western story is through his analysis of Liberalism and the Liberal party, in both their federal and Saskatchewan manifestations. He takes us away from the dramatic and colourful story of protest parties and instead directs our attention to the internal workings of one of Canada’s oldest and, with the recent disappearance of the Progressive Conservative party, most enduring national parties. Smith’s work on the Liberal party resembles that of a cultural anthropologist trying to explain this often strange and now (within the West) declining tribal community. With the late Norman Ward, he examined Jimmy Gardiner as an iconic Liberal figure in the region, and expanded his analysis to include the Liberal party in Saskatchewan and the federal Liberals across the prairie West. Throughout is a common theme: the relationship between the Liberals and the West is really about the relationship between the West and Canada. Smith gives full credit to the success of the Liberal party in the first six decades of the twentieth century – the time before the Diefenbaker rout in 1958 – not only as an electoral force but as a vehicle for integrating region and nation. Indeed, for contemporary readers his work provides an essential reminder of the central and in most respects positive role the Liberals played on the prairies during the first half of the century. The party was closely associated with the agrarian settlement of the West, for the great immigration boom that began in 1896 and lasted until the onset of the First World War largely coincided with the Liberal governments of Sir Wilfrid Laurier. And it was not just coincidental as Liberal policies helped fuel that boom. Smith (1986: 87) argues that through their entanglement in immigration policy, immigrant settlement, and the introduction of new immigrants into the bureaucracy (which would not have happened if merit rather than partisanship opened the doors), ‘the Liberals moulded the social structure of the West in a unique way: unique in Canada because it did not happen in other sections of the country where the social structure had been set before the formation of parties and unique in North America because in the United States government did not play a direct role in fostering immigration.’ Thus the Liberal impact on the region went well beyond shaping the partisan landscape. Nonetheless, this latter impact was also significant; Smith points out that ‘the Liberals obtained an almost permanent competitive edge [nationally] through their po-

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litical mobilization of the “non-English” voter in the prairie provinces’ (ibid.: 88). Although this edge was lost briefly when Diefenbaker swept the West, it was regained when the Liberals shifted their focus to central Canada and when Ontario, not the prairie West, became the primary recipient of immigration in the latter half of the century. This recognition of the Liberal party’s early success is an important chapter in the larger western Canadian story. However, it is when he turns to the post-1958 period that he makes the most interesting point about the relationship between the Liberal party and the West. Smith argues convincingly that the Liberal decline in the post-Diefenbaker years, and therefore the deteriorating relationship between region and nation, was far from inevitable. The decline, Smith (1981: 144) asserts, was a matter of choice: ‘The Liberal party has been the author of its own demise in western Canada.’ The party was not the innocent victim of the electoral system, and the party’s regional decline cannot be attributed simply to the personality of its leaders or to the perversity of western Canadian voters. The Liberals had a choice, and ‘rather than acting as a vehicle for dissent, the Liberals have become its object’ (ibid.: 129). This choice had an adverse impact not only on the party’s electoral fortunes but also on the relationship between region and nation. Although the Diefenbaker sweep in 1958 dramatized the shift in Liberal fortunes and focus, it only brought to a head a cultural shift that Smith traces back to the years between the Great Depression and Diefenbaker, when Jimmy Gardiner epitomized and symbolized Liberal power in western Canada. Smith’s analysis of the Liberals draws heavily from his co-authored biography of Jimmy Gardiner who, it should be stressed, never gave up on his party; hence the title of the biography, Relentless Liberal. In 1954 correspondence, Gardiner set out his opposition to third parties in the West: I have learned long ago that the western provinces have seen to it that they are not listened to too much in other parts of Canada. Nobody is going to be scared very badly here [in Ottawa] by a suggestion that the five Liberals in Ottawa from Saskatchewan now, including myself, might be kicked out the next time. The people of the western provinces have kicked out so many Liberals and put the representatives of some crack-pot party in their place that there are a lot of people in Canada who do not think it makes very much difference what we think. That makes me very bitter sometimes. (Smith, 1990: 328)

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Gardiner’s sentiment has been repeated by western Liberals ever since. Most recently it is seen in the assertion that to vote for the Reform party, or the Canadian Alliance, or the new Conservatives is to waste your vote. Western Canadians, it is argued, can choose to support Canada’s naturally governing party or to sit on the sidelines, and they seem to choose the latter. And yet, as we know from Smith’s work, this strategic appeal for Liberal party support was not successful when it was coupled with organizational and policy insensitivity to the region. As a consequence, he concludes that ‘the year after Gardiner died [1963] the Liberals returned to power in Ottawa but never recovered as a force in the west. National Liberalism ended at the same time Gardiner retired from public life’ (ibid.: 319). Smith, it should be stressed, does not fully accept Gardiner’s lament, or Gardiner’s assumption that western Canadians lost their voice in Ottawa through their penchant for supporting protest parties. To the contrary, Smith puts the blame squarely on the shoulders of the Liberal party and not on the shoulders of the western Canadian electorate. Gardiner’s career captured in microcosm much of the relationship between the West and Canada. As Smith (1990: 293) notes, ‘Gardiner’s failure in 1948 [to win the leadership of the federal Liberal party] underlined a truth about Canadian politics which more than a decade of his legislative victories for agriculture and the West had disguised: if central Canadians were united on a position, prairie Liberals must inevitably lose.’ When the Liberal leadership moved in 1948 from Mackenzie King to Louis St Laurent, the party moved away from a sensitivity to western Canadian interests and aspirations. From St Laurent through Lester Pearson and Pierre Trudeau and, I would argue although Smith does not, through Jean Chrétien, the Liberal leadership found its emotional anchor elsewhere. ‘Without the support of the national leader, which [Gardiner] believed King had given or which Sifton had once received from Laurier, the Liberals coasted into decline in the west’ (ibid.: 315). This decline was not inevitable; it was a choice, and one that has been adhered to from the King–St Laurent transition to at least the end of Jean Chrétien’s leadership. Whether Paul Martin will reverse this pattern remains to be seen. Smith therefore documents the gradual shift of the Liberal party from the agricultural West to the country’s demographic, industrial, and metropolitan heartland in central Canada, coupled with the growing strength of dualism – French-English – in the Liberal party, and the resultant problems with electoral support in the multi-ethnic and

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multicultural West. However, he goes beyond these important systemic changes to note how politicians can be ‘regionalized’ by and within their own party. As Smith (1990: 327) explains, Jimmy Gardiner did not define himself in regional terms: ‘Despite his identification in the public mind, then and later, with the west, Gardiner did not look upon himself as a regional politician with the limitations upon ministerial activity such a label implies.’ And yet there is no question that despite his efforts, Gardiner came to be defined by others in regional terms. This, I would argue, reflects a more general practice whereby the national aspirations of western political leaders are diminished. If a leadership prospect is from the West, then it is assumed that regional interests will trump national interests, that truly national visions are beyond the parochial grasp of western leaders. Thus Peter Lougheed, Preston Manning, and now Stephen Harper are portrayed as regional leaders lacking the truly national vision and insights nurtured by other less parochial regions of the country, and particularly Quebec. But I digress. In his exploration of Liberalism on the prairies, Smith illustrates the critically important interplay of party organizations and public policy. The Liberal problem in the West, Smith argues, is related in a chicken and egg fashion to both the nature of the Liberal party and the policy actions of Liberal governments. Following its rout by John Diefenbaker in 1958, the Liberal party had to rebuild from the ground up. However, while ‘to begin anew was to be expected; to rebuild so that the party should appear inimical to prairie interests was not’ (1981: 51). Smith identifies two important organizational changes that took place in the wake of the Diefenbaker defeat: ‘two great experiments were tried in the sixties: the first, to create “pan-Canadian” structures free from provincial entanglements and the second to promote “a modern mass party” that encouraged individual participation’ (ibid.: 53). The first change, somewhat paradoxically, led to greater central control of the party which, in turn, ‘helped transform the Liberal party into an organization viewed as unsympathetic to the West’ (ibid.: 52). Coupled with this was the organizational decision to focus on Quebec, a decision reflected in the leadership of Pierre Trudeau, Jean Chrétien, and (perhaps) Paul Martin: The concentration of focus on Ontario and Quebec not only made sense but was attractive to the Liberals from central Canada, who had provided the impetus for organizational change in the first place. To those in the prairie provinces, however, it was neither appealing nor sensible. (ibid.: 55)

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Bluntly put, the Liberals surveyed the demographic distribution of the Canadian electorate and made a strategic choice. The estrangement of the West was not inadvertent. Given that the Liberals have dominated the national government for most of the post-Diefenbaker period – thirty of the past forty years, and counting – it was inevitable that the new party focus would find expression in public policy. Thus Smith points out that western Canadians have been alienated by both the national political process and the policies that process produced. In an article first published in 1977, Smith provides my all-time favourite nutshell description of the Liberal party’s contribution to western Canadian discontent: On the prairies there was never any question but that the region’s promise was thwarted by federal policies that alternated between neglect and exploitation. Most recently, after a singular devotion to Quebec’s problems, the federal government is viewed from the prairies, in the conflict over oil and natural gas, as once again turning its guns and not its ear to the West. (1992a: 43)

Writing four years later, Smith (1981: 110) observes that ‘the contribution of policy to the West’s sense of separation from the rest of the country has redoubled in recent years.’ However, he also notes that ‘substance aside, the formulation of policy antagonizes westerners, for it so often appears to have been conducted without regard to regional interests.’ If Smith were writing the same passage today, he could certainly draw evidence from disputes over the National Energy Program, the national firearms registry, and the Kyoto Accord. The Liberals’ strategic decision to turn away from the West has had serious consequences that go beyond electoral fortunes and public policy options to national unity. ‘The returns [in 1963] and later gave them [the Liberals] the populous heartland and the Progressive Conservatives the prairie periphery: a partition of the electorate which mirrored the Liberal party’s own internal division’ (Smith, 1981: 55). This regional partitioning of the electorate, albeit briefly bridged by Brian Mulroney, was reinforced by the formation of the Reform party, and subsequently by the inability of Reform’s successor, the Canadian Alliance, to break out of the West. The country has split at the Manitoba-Ontario border. If we extrapolate from Smith’s work in the early 1980s, the point to stress is that this regional divide was the outcome of strategic choices made by the Liberal party, choices then reinforced by public policy decisions

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made by Liberal governments in Ottawa. Indeed, I would go further; the national fortunes of the party have been bolstered by running against the West, by boxing its opponents into the West. Regional discontent has become a strategic asset for the Liberal party, and has been nurtured as such. As Smith (1992a) points out, the ongoing conflict has given the notion of national unity a bad odour in the West. Needless to say, a similar strategy developed for Quebec by any other party would be roundly, and justifiably, condemned. Regardless of who is to blame – the Liberal party or pigheaded western Canadian voters – the estrangement between the regional electorate and the Liberal party has had an adverse effect on national unity: Unlike the residents of Quebec, with whom westerners have shared some grievances, prairie voters have in recent years effectively excluded themselves and their region from the ranks of the governing Liberal Party. This collective rejection of the dominant party of this century in federal politics has in turn exacerbated the region’s sense of isolation. (Smith 1992a: 43)

Smith tends to place the blame first with the Liberal party, and I find it difficult to disagree. The Federalism Context In his anthropological work with the Liberal party, Smith by no means ignores the institutional environment within which that party operated, and within which the West evolved. As he explains, The West was a federal creation. Its immigrants were there because of policies set down in Ottawa, while the land they occupied was surveyed and administered by officials ultimately directed from the national capital. The myth of ‘the West’ should have become (as it did in the United States) the myth of the larger federation. But it did not. (1981: 131)

Hence the crux of regional discontent: although the settlement of the West was a federal project, the importance of the region to the larger pattern of Canadian development was lost. Unlike the American West, the Canadian West remained at the margins of national consciousness and purpose. The region was not used to illustrate and epitomize national values. Certainly there is no question about the West’s dependency on

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federal policy. As Smith explains in the Saskatchewan context: The last example of a perennial theme [in Saskatchewan’s history], evident from even a cursory glance at Saskatchewan experience, is the province’s dependent relationship upon the federal government – demonstrated in the restrictions Ottawa imposed on provincial autonomy in 1905, in its subsequent control of the tariff and freight rates to the detriment of the land-locked export economy and, most recently, in assertions of federal paramountcy over the province’s mineral and petrochemical resources. (1992: 2)

The ongoing political challenge, therefore, has been to ensure that federal policies are favourable towards the West, and if that fails, as it so often does, to reduce the region’s dependency on the national government. Smith (1981: 116) argues that the West’s response to this challenge ‘has alternated between seeking a more commanding voice at the centre and more provincial control over its own affairs.’ This tension or oscillation still lies at the heart of western Canadian political life, as witnessed by the quest for Senate reform and ‘the West wants in,’ on the one hand, and the advocates of an Alberta ‘firewall,’ on the other. The choice is between improving the regional application of national policies or reducing the scope for such policies. Both approaches have been pursued, neither with great success. Although Smith certainly acknowledges the difficulty in attaining an effective regional voice at the centre, he does not come across, at least in his earlier works, as a hard-core advocate of traditional solutions such as reducing party discipline or Senate reform. His response to the problem is tempered by his understanding of Gardiner’s career. For example, in the epilogue to the Gardner biography, written by Smith alone, he notes the following: A quarter of a century after Gardiner’s death, and particularly in western Canada, criticism is often heard about inadequate representation in Parliament, about the inability of westerners to get their opinions heard. Such language implies that politicians are vessels to be filled with regional or other discontents which they then pour into national debate. That was never Gardiner’s view: for him, the politician interpreted particular, local matters in terms of the larger interests of party and nation. As a result, leaders must be active, not passive. (1990: 325)

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Here, I suspect, Smith is speaking for himself as much as for Gardiner, suggesting that there is nothing in the western ‘problem’ that is beyond the reach of political leadership, should it be exercised. The dilemma is that this path has not been taken by national leaders in the latter part of the twentieth century. Nonetheless, Smith’s criticism of the federal system stops well short of throwing out either the baby or the bath water. What emerges from his writing is more a profound sense of disappointment rather than a clarion call for institutional reform. It is not surprising, therefore, that his 2003 study of the Canadian Senate endorses a lightly reformed status quo. The problem, he suggests, lies less with the Senate’s weaknesses than it does with the public’s lack of appreciation for the existing Senate’s strengths. The federal system, of course, has not been a constant throughout the history of the West; it has evolved and there is no question that it bears only a casual resemblance to the system in place during the early decades of agricultural settlement. However, ‘while [the Canadian federal system] has undergone a remarkable transformation in the period under review, there has been one thread of continuity as far as the West is concerned. That has been the region’s perception that the centre maintains its dominance despite whatever other changes may occur’ (Smith, 1981: 11). We have evolved, but not towards a more effective institutional accommodation of western Canadian interests and aspirations. It is perhaps for this reason that so many western Canadians, although not Smith, continue to butt their heads against the Senate reform stump. Smith by no means neglects the case for institutional reform. For example, in his comprehensive discussion of the role that political parties play in national integration, Smith (1986: 91) notes that ‘the composition of the Senate, where provinces are unequally represented but where party organization finds refuge in the large contingents from Ontario and Quebec, is a permanent reminder that accommodation of Canadian diversity must occur elsewhere than in the upper chamber.’ Hence the heavier burden Smith places on the party system, and thus the problems that arise when the parties are not up to the task: there is no fallback. Nonetheless, he leans more towards partisan than institutional solutions for western Canadian discontent. Smith (1991: 460) describes Canada’s political parties as ‘the accredited nation-building institutions of the nineteenth and early-twentieth centuries.’ But when parties fail at national integration, as the Liberals did after

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Diefenbaker, parliamentary institutions attuned to regional interests and aspirations are not there to pick up the slack. Or, when federal institutions fail, truly national parties are not there to pick up the slack. Thus the West today faces a double curse: federal institutions that offer only a pale reflection of federal principles and regional realities, and a national party system that exacerbates rather than ameliorates regional discontent. The frustration that Smith’s work expresses so well in the 1970s and 1980s has only grown. Gardiner, Smith (1990: 300) argued, believed that political indifference by the national Liberal party to the West, and more emphatically to Saskatchewan, would impose a high cost on both the region and the nation. I would agree, although it is by no means clear that Gardiner’s conclusion has been taken to heart by the Liberal party in the intervening fifty-five years. Smith raises two additional concerns about Canadian federalism. The first goes to the nature of public policy, and to what strikes him as the inability of the federal government to see regional development in the West (e.g., the South Saskatchewan River Dam) as critical to national economic development: ‘Gardiner’s self-assurance [in making the argument for the dam’s construction] stemmed directly from his political and economic nationalism: that is, he believed the dam of national importance because it would guarantee a healthy, prosperous agricultural community in the west which would be of benefit to all of Canada’ (1990: 328). Gardiner, however, was not successful, and his failure in this respect set the pattern for the latter half of the twentieth century when it became increasing difficult to convince the federal government that regional strength in the West was of national benefit. The second concern moves beyond public policy to the very roots of federalism: Federalism matters in Canada because choices have yet to be made about the purposes it is to serve. Until this question is resolved, discussion over means to accomplish ends, which to an outsider at least appears to be the force that drives federal debate in the United States, remains of secondary importance. (Smith 1991: 473)

Let us hope the day will come when one of the purposes of Canadian federalism will be to accommodate regional interests and aspirations. An extended reading of Smith’s scholarship demonstrates just how important the historical frame is for understanding contemporary discontent in western Canada. Quebec is not alone in the slogan ‘je me souviens.’ As Smith (1981: 116) notes, ‘the relations of the prairies to the

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centre are thus played against a backdrop of memory and, as a consequence, sequence and perspective become distorted as new complaints are joined to ancient grievances.’ In the West, as in other regions, understanding the present requires understanding the past. Smith’s scholarship is of great assistance in this respect. Conclusion In conclusion, I want to emphasize my enjoyment in reviewing David Smith’s corpus of work on western Canadian politics. His scholarship evokes a great deal of admiration, and it was a pleasure to read. It also holds up remarkably well; it can be read today for contemporary insights into western Canadian political life. For example, although The Regional Decline of a National Party was published in 1981, its analysis is fresh today. What, then, is the message that emerges for contemporary readers, and indeed for contemporary party leaders trying to navigate the treacherous shoals of regional politics? First, and as I have argued elsewhere, western discontent is much more than a basket of policy complaints; Smith’s work clearly demonstrates that it is better seen as a frustrated sense of Canadian nationalism. Second, and specifically for the Liberal party, failure in the West is by no means inevitable. Failure in the past was a matter of choice; success in the future can also be a matter of choice. Third, the choice in the past to turn away from the West, to concentrate on the country’s demographic heartland, may have been shortsighted. At the time of the Diefenbaker rout and collapse of the western wing of the Liberal party, Quebec’s population was significantly larger than that of the four western provinces combined. This is no longer the case; at the time of the 2001 census, almost 30 per cent of the Canadian population lived in the West compared to just over 24 per cent in Quebec, and the West’s population is growing as a proportion of Canada’s total population while Quebec’s continues to shrink. Thus rebuilding in the West will soon cease to be an option; it may be a requirement for electoral success as the twenty-first century unfolds. Of course, it is hard to begrudge the strategic choice that the Liberal party made as it rebuilt in the early 1960s. Certainly it was a successful partisan strategy; weakness in the West has not precluded strong electoral support in central Canada, and may even have facilitated it. However, this strategy has contributed significantly to the marginalization of the West and to the growth of western discontent. It thus

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impedes the political system, imposing the drag of regional discontent. It is, then, a problem for national unity. As Smith observed in the late 1970s, The burden of unity, which the West believes it has borne for so long, will lighten only if the region can secure policies more favourable to itself. For this to happen, the West must secure a greater voice at the centre in federal decisions or it must have more autonomy to formulate its own policies. It is difficult to escape the logic of this conclusion. The choice that western Canadians will make depends on the options presented by the national parties and government. (1992a: 52)

NOTES 1 Smith’s biography of Jimmy Gardiner was co-authored with the late Norman Ward. However, in this chapter I have attributed their undoubtedly joint insights to Smith alone. 2 In early 2004 the Canada West Foundation conducted an extensive public opinion survey on the outlook of western Canadian towards their region and country, a survey that included eight hundred respondents from each of the four western provinces. In this survey, Saskatchewan respondents fit easily within broader regional patterns. For example, when asked if their province is treated with the respect it deserves in Canada, 66.9 per cent of Saskatchewan respondents said it was not, a proportion that compares to 54.8 per cent of BC respondents, 56.5 per cent of Alberta respondents, and 48.5 per cent of those in Manitoba. When asked if Saskatchewan receives its fair share of money spent by the federal government on programs and transfers, 59.9 per cent of Saskatchewan respondents said no compared to 59.9 per cent in British Columbia (for their own province), 53.1 per cent in Alberta and 48.0 per cent in Manitoba. Saskatchewan residents appear to run with the regional pack, or perhaps ahead of it when it comes to levels of alienation. (For more details, see Berdahl, 2004.)

REFFERENCES Berdahl, Loleen. 2004. Regional Distinctions: An Analysis of the Looking West 2004 Survey. Calgary: Canada West Foundation. Smith, David E. 1973. ‘Interpreting Prairie Politics.’ In A Region of the Mind, ed.

The West in Canada 261 Richard Allen. University of Regina: Canadian Plains Research Center, 103– 24. – 1975. Prairie Liberalism: The Liberal Party in Saskatchewan 1905–71. Toronto: University of Toronto Press. – 1981. The Regional Decline of a National Party: Liberals on the Prairies. Toronto: University of Toronto Press. – 1986. ‘National Political Parties and the Growth of the National Political Community.’ In National Politics and Community in Canada, eds. R. Kenneth Carty and W. Peter Ward. Vancouver: University of British Columbia Press, 80–93. – 1991. ‘Empire, Crown and Canadian Federalism.’ Canadian Journal of Political Science 24, 3 (September): 451–73. – , Peter MacKinnon, and John C. Courtney, eds. 1991a. After Meech Lake: Lessons for the Future. Saskatoon: Fifth House Publishing. – , ed. 1992. Building a Province: A History of Saskatchewan in Documents. Saskatoon: Fifth House Publishing. – 1992a. ‘Western Politics and National Unity.’ In Riel to Reform: A History of Protest in Western Canada, ed. George Melnyk. Saskatoon: Fifth House Publishing, 43–59. – 1995. The Invisible Crown: The First Principle of Canadian Government. Toronto: University of Toronto Press. – 1999. The Republican Option in Canada, Past and Present. Toronto: University of Toronto Press. – 2003. The Canadian Senate in Bicameral Perspective. Toronto: University of Toronto Press. Ward, Norman, and David Smith. 1990. Jimmy Gardiner: Relentless Liberal. Toronto: University of Toronto Press.

Conclusion cristine de clercy

As stated in the introductory chapter, the authors were not supplied with any formal content parameters beyond the general provision that chapters contributed to this festschrift ought broadly to reflect David Smith’s scholarly interests concerning Canadian federalism, political institutions, and the West. It is fascinating to consider the collection of papers assembled here. On the one hand, the papers address a considerable range of topics and issues. From Peter Russell’s survey of organic constitutional evolution to Brooke Jeffrey’s account of social policy failure to Roger Gibbins’s analysis of the transcendent West, readers encounter a wealth of information about many facets of Canadian politics. In their collective breadth of inquiry these essays reflect the scholarship of a true student of Canadian politics: David Smith’s work has addressed a wide range of subjects germane to understanding politics in Canada. On the other hand, several central themes emerge as one proceeds through this volume. Collectively the authors focus on six distinct subjects: decentralization and the devolution of power; centreperiphery relations; Quebec and the separatist movement; constitutional change; the new localism and the challenge of governance in the new global era; and political leadership. Decentralization and the Devolution of Power Canadian federalism dominates much of the discussion, and five authors consider recent trends in decentralization and the devolution of power. In his chapter on intrastate federalism and the civil service, Donald Savoie reminds us that decentralization is a key element of Canadian federalism by noting that early experimentation with decentralizing bureaucratic operations was necessary to accommodate the

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realities imposed by our vast geography. Peter Russell observes that despite citizens’ rejection of the Charlottetown Accord and the subsequent dénouement of mega-constitutional politics, many new devolutionary objectives have been secured. Ottawa has withdrawn from some policy sectors such as mining and tourism and, through bilateral agreements, several provinces have sought and secured full responsibility for worker training financed by the Employment Insurance Fund. Russell notes this informal, ‘checkerboard mode of devolution’ may contribute to federal-provincial harmony but impede cross-provincial program development. For Tom Courchene, however, devolution and increased federal-provincial bilateralism is a rational response to shifting trade patterns in the wake of the FTA and NAFTA. ‘Canada is progressively less and less a single national economy and more and more a series of north-south, cross-border economies,’ he writes. Greater decentralization as well as greater policy asymmetry across the regions mark the new, post-NAFTA era of Canadian federalism. In contrast, Brooke Jeffrey downplays the influence of international economic forces and argues that the Chrétien Liberals’ support for new decentralizing initiatives in the early 1990s was a deliberate response to massive federal deficit and debt levels, renewed support for Quebec separatism, and the collapse of the traditional federal party system. Reasserting Ottawa’s prominence in social policy areas once these conditions dissipated, she notes, proved much more difficult than anticipated. She concludes that highly asymmetric ‘Frankenstein federalism’ in social policy seems likely to continue under Prime Minister Paul Martin’s leadership. While they may disagree about the specific causes of current decentralization trends, there seems to be consensus on the effects: since 1992, and particularly after the 1995 Quebec referendum, the federal government has ceded power in many jurisdictional areas (formally as well as informally) to the provinces. Whether we label it a ‘checkerboard mode’ or ‘Frankenstein federalism,’ federal practice in the new millennium is marked by heightened policy asymmetry in federal-provincial relations and enhanced policy differences across jurisdictions. Centre-Periphery Relations Tension in centre-periphery relations is a second theme common to several chapters in this volume and the authors discuss it in different ways. The federal government’s retreat from some policy areas has coincided with advances in other spheres, such as post-secondary edu-

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cation. Éric Monpetit argues that this shift reflects an important change in the federal government’s policy-making approach. Determined to develop policies that directly target individual Canadians as a means to secure a sense of belonging to the federal state, the federal government’s efforts to enhance input-oriented legitimacy may severely weaken intergovernmental relations and contribute to insensitive unilateral policymaking. Jeffrey agrees, and emphasizes that the new unilateralism also permeates provincial policy-making. Despite the creation of new forums and frameworks to facilitate federal-provincial cooperation, in fact such coordination is minimal. Montpetit and Jeffrey’s critiques of collaborative federalism reveal the irony of this label: today’s federalism is characterized by policy competition and conflict in federalprovincial relations. In her chapter Grace Skogstad reviews the tension between Liberal governments of the 1970s and early 1980s and the western agricultural policy community. She asks whether the Chrétien Liberal government’s policies have remained unresponsive to western agriculture and, if so, does the ‘primary Smithian explanation’ – weak and ineffective regional representation in cabinet – still hold? She argues that because any single policy solution was incapable of addressing a highly fragmented set of interests, the Liberal government relied upon Ralph Goodale, the regional minister, to frame the policy debate and fashion a consensus on agricultural issues. Skogstad concludes that, despite sincere efforts to resolve a key policy problem of great importance for western farmers, the federal Liberals received little credit in return. Twenty-first century relations between prairie farmers and federal Liberals remain antagonistic. In a similar vein Roger Gibbins underscores the new multiplicity of economic interests that have replaced the old monolithic prairie grain economy, and asserts that the relationship between the West and federal Liberals is really about the relationship between the West and Canada. In his chapter he argues that the ‘country has been split at the Manitoba-Ontario border,’ and blames the break on the Liberal party and Liberal governments whose fortunes nationally have been bolstered by running against the West. Deliberate partisan efforts to contain western parties such as Reform within regional boundaries, while portraying western leaders as steeped in parochialism and lacking a truly national vision, have deepened the rift. Gibbins suggests that western Canada remains hovering at the periphery of national political life much as it did during the early settlement period. Though the federa-

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tion has evolved, the resulting changes have not produced a more effective institutional accommodation of western interests. Therefore ‘the West today faces a double curse: federal institutions that offer only a pale reflection of federal principles and regional realities, and a national party system that exacerbates rather than ameliorates regional discontent.’ Savoie also contemplates core-periphery tensions and asks whether regionalism – ‘the profound sense of regional grievance married to a discourse of entitlement’ – may be accommodated through change in the representative composition of the civil service. Whereas Gibbins focuses on the periphery, here Savoie largely concentrates on the centre. He demonstrates that although the civil service is a key political institution, its quiet evolution has been largely ignored by academics. As well, he underscores that our system of government concentrates power at the centre and the civil service enhances this concentration. Moreover, and complementing Gibbins’s argument, Savoie notes that ‘any issue affecting Ontario and Quebec is inevitably regarded in Ottawa as a national concern,’ but this is not true for issues affecting other regions, such as the Maritimes and presumably the West. Savoie’s analysis emphasizes that the power of the centre is predicated upon overlapping centralities: the national capital and its machinery of government is located in central Canada; Ottawa is home to most senior administrators; most think tanks and lobbyists are located in Ottawa; and the number of federal civil servants residing in the capital has been increasing and now approaches 40 per cent. In their studies these five authors seem to agree that current relations between the centres and the margins are tense. This is not the sort of dynamic tension celebrated as a positive byproduct of divided sovereignty in federal states. Rather, this is a negative tension generated by distrust, imbalance, stress, and grievance. While remedies such as Savoie’s recommendation to bring regional circumstances to the heart of the policy-making process might address some complaints, Skogstad’s account suggests in part that it may be difficult for peripheral actors to abandon habitual patterns of interaction with the centre. Quebec and the Sovereignty Movement Interestingly, although none of the essays in this volume focus on la belle province, discussion of Quebec, Quebeckers, and the sovereignty movement appears in many chapters. Garcea, for example, suggests that successive statutory reform initiatives were confounded by the

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political vortex of contending interests and imperatives created by the preferences of governmental and non-governmental stakeholders. Part of his analysis, however, highlights the role of the Bloc Québécois in expressing important dissenting perspectives on the requirements of Canadian citizenship. Some Bloc criticisms reflected the party’s sovereigntist sentiments while others expressed long-standing provincial concerns over perennially controversial issues, such as declaring allegiance to the Queen. These and other trenchant disputes stalled the Chrétien government’s efforts to enact new citizenship legislation despite its control of both houses of Parliament. Quebec appears several times in Gibbins’s essay on western politics and he seems of two minds about the province. Sometimes it is depicted as a contributor to western alienation owing to its membership in central Canada. Sometimes it serves as a model for discontented western governments, such as when he quotes David Smith to make the point that the West needs a greater voice in federal decisions or, à la Québec, it must have more autonomy to formulate its own policies. He concludes the essay by underscoring the ongoing population shift that is expanding the West’s proportion of Canadians while diminishing Quebec’s share, a trend many westerners hope will soon shift the federation’s balance of power in their favour. In several places the authors mark the 1995 Quebec referendum as an important point of departure for understanding new trends in federal policy-making. Jeffrey proposes that the impact of the close referendum vote affected the prime minister deeply, colouring his approach to almost all policy areas. Politicians in the rest of Canada were also affected and so the referendum helped to lay the foundation of the new collaborative federalism, which was embodied in initiatives such as the Social Union Framework Agreement. Montpetit locates the federal government’s impetus to pursue input-oriented legitimacy in the referendum’s aftermath as officials sought to build Canadians’ loyalty through establishing more direct linkages with them. Naturally, the referendum is prominent in Russell’s analysis. The failed Charlottetown Accord and the 1995 referendum mark major turning points in Canada’s constitutional evolution. He reviews how some federal commitments made during the referendum campaign later were fulfilled, such as the effort to restore Quebec’s traditional veto through passing the 1996 Constitutional Amendments Act. Moreover, his review of the genesis of each side’s legal ‘secession armour’ reminds us that this armour remain at the ready for use in the next referendum exercise.

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After reading these essays one is left with the impression that while more than a decade has passed since the 1995 Quebec referendum, only now are some of its deeper effects becoming apparent. These efforts to delineate some key federal policy changes wrought by the referendum’s process and aftermath ought to spur similar studies in other policy fields. At the same time, we might inquire what has been the referendum’s policy effect within Quebec? Following the signal of these authors, it is time for broader scholarly treatment of the referendum and its effects within Canada and Quebec. Constitutional Change Since the troubles of the early 1990s, Russell asserts, we have entered a new era of constitutional politics. The old mega-constitutional politics have been replaced with the quieter and sunnier ways of organic constitutionalism and, he reminds us, this is the usual way that most countries go about modifying and adjusting their basic law. In reviewing some recent amendments, such as the Nisga’a Agreement, Russell expresses a refreshing optimism that giving up on formal constitutional restructuring may serve to secure the federation’s future development. He reminds us that the flexibility and change made possible through less formal devices has generated timely new proposals in other areas such as electoral system reform. Russell’s positive emphasis on the federation’s flexibility and adaptability is repeated and enlarged in the chapter on aboriginal peoples and the Crown by Greg Poelzer and Ken Coates. They argue that Aboriginal self-government bolsters democratic practice because of its local character. As well, self-government fits within Canadians’ pluralistic democratic practices and accommodation of regional differences, so establishing a viable and legitimate third order of government is possible owing to the federation’s inherent adaptability. Importantly, they underscore Canadians’ adaptability and tolerance when presented with new structures, changing conditions, and minority group demands. On the basis of arguments in these two chapters, one may conclude that the federation’s constitutional evolution is on track in the early years of the new century. The New Localism and the Challenge of Governance in the Global Era Another theme appearing in several chapters in this volume has a rather bulky label. The ‘new localism’ refers to the recent trend in

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politics and academe to focus on local government and community governance. Proponents argue that because local governments constitute the building blocks of regions and nations, ensuring their economic and political well-being is a critical task. The focus on local government has been produced partly by globalization and its analysts. Therefore the focus on local government and the challenge of governance in the global era are treated here as two sides of the same coin. In approaching Aboriginal self-government as a form of local selfgovernment and recounting de Tocqueville’s praise of it, Poelzer and Coates reflect the localism vogue. Discussing social policy development under Chrétien, Jeffrey notes that many of the federal government’s policy interests in the late 1990s and early 2000s overlapped with municipal policy concerns such as housing, infrastructure, and child care. References to the policy effects of globalization appear in a few places, such as Garcea’s observation that draft citizenship legislation was altered to try to account for people’s increased mobility which affects residency requirements, emphasizing the difficulty of regulating mobile citizens in a global world. Russell comments that the new global economic order will likely do more to reduce interprovincial trade barriers than could formal constitutional amendment. Localism and globalization are brought together forcefully in Courchene’s analysis. He focuses on the rise of global city regions (GCRs) as the new motors of the information economy and discusses how their economic importance is reshaping the traditional federalprovincial relationship. Also, rising medicare costs and new spending priorities have generated an ‘hourglass federalism’ relationship between the federal government and the municipalities, where the provinces become less and less important in service delivery. Courchene’s analysis of how the FTA, NAFTA, and North American integration more generally have altered Canadian economic space and begun to affect intergovernmental relations demonstrates the need for careful thought about how best to integrate and coordinate the growing power of localities within the federation. Courchene suggests that there is room for pan-Canadian policies, such as the forging of an east-west human capital union, which will enhance national unity while accommodating the transformation under way in our governing structures. Such initiatives may provide the grounds (and the pressure) for de facto collaborative federalism and so bypass the current competitive unilateralism in policy-making as described by Montpetit and Jeffrey.

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Leadership A final theme that recurs in these essays concerns the exercise of political leadership. Here, as with the discussions concerning centre-periphery relations, analysis appears in a variety of contexts. Savoie, for example, aims to reveal the policy-making power of the bureaucracy for the benefit of ‘Canada’s political elites’ toward arguing that the civil service’s composition, particularly its senior leadership located in Ottawa, ought to be diversified along regional lines. Skogstad’s analysis of relations between western farmers and federal Liberals relates how the regional minister, Ralph Goodale, brokered among competing interests and exercised leadership on the Wheat Board issue to secure a policy resolution. Gibbins similarly underscores the potential for political leaders, particularly Liberal leaders, to address the acrimony in relations with the West and rebuild national unity. ‘Failure in the past was a matter of choice,’ he writes, ‘success in the future can also be a matter of choice’. In their paper on building a federal state with Aboriginal peoples as fellow architects Poelzer and Coates direct some of their arguments at Aboriginal and non-aboriginal leaders to make their point that Canada’s compound monarchy is fully capable of accommodating selfgovernment aspirations. The exercise of leadership is prominent in Marchildon’s interpretive survey of provincial coalition governments in Canada. He concludes that ‘it is definitely the structural dynamics and inherent instability of a minority government – rather than the perception of common goals alone – that produce coalition governments.’ Yet despite his focus on the structural dynamics underpinning coalition formation, he emphasizes that the role of leaders is key in maintaining a viable coalition. He proposes that the more a coalition leader is charismatic and persuasive, the less likely it is that a strong anti-coalition champion will emerge. In sum, these authors communicate that individual politicians do matter, and their choices and abilities may directly contribute to success or failure in many areas of policy and politics. Summary Considered as a whole, the essays in this volume provide readers with a synopsis of the state of affairs in the study of Canadian politics. The events surrounding the 1992 Charlottetown Accord and the 1995 Que-

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bec referendum continue to reverberate within our politics and policymaking. Ten years after the last Quebec referendum, one senses from these essays that the federation is still adjusting to the event and its implications. As well, relations between the centres of power and actors and institutions on the margins seem stressed in many areas. Despite best intentions, Ottawa and the provinces have not succeeded in effecting collaborative federalism and the current mode may further undermine the system’s legitimacy while hollowing out Canada’s social policy core. At the same time, change continues to reshape institutions and governmental relations. The process of change brings some benefits (such as a sunnier, quieter constitutional approach) alongside a deep restructuring as globalization proceeds and North American economic integration advances. Much of the content of these chapters builds upon David Smith’s work, contributing some innovative proposals and fresh interpretations of important issues. The superior quality of these essays reflects David’s own high standards of scholarship, which he took care to communicate to his students. I was sitting in his graduate seminar class several years ago when one of my bolder colleagues decided to complain to our teacher about the rather narrow band of A grades – 80, 81, 82 – that had just been distributed on our course papers. Professor Smith considered the gist of the complaint for a moment and then responded dryly, ‘Only God gets an 85.’ I am quite confident that the papers collected here would receive at least an 84.

Contributors

Ken C. Coates is adjunct professor, Department of Political Studies, University of Saskatchewan and former dean of the College of Arts and Science at that university. His research focuses on aboriginal rights, land claims and northern politics. Thomas J. Courchene is the Jarislowsky-Deutsch Professor of Economic and Financial Policy at Queen’s University and is Senior Scholar, Institute for Research on Public Policy in Montreal. Tom was born in Wakaw, Saskatchewan, graduated with an honours BA from the University of Saskatchewan in 1962, and received an honorary doctor of laws from the university in 2000. He has written widely across many areas of Canadian public policy. He was invested as an officer in the Order of Canada in 1999. Cristine de Clercy holds degrees from the University of Saskatchewan and her PhD from the University of Western Ontario. She is assistant professor of political studies at the University of Saskatchewan and a research fellow at its Centre for the Study of Co-operatives. Her scholarly interests concern Canadian government, public policy, comparative politics, leadership, and methodology. Currently she is a coinvestigator on Co-operative Membership and Globalization: Creating Social Cohesion through Market Relations, a multi-year study funded by the Social Science and Humanities Research Council of Canada. Joseph Garcea is associate professor of political studies at the University of Saskatchewan, where he teaches courses in Canadian politics, public policy, and local governance. He is a research domain leader for

272 Contributors

the Prairie Centre of Excellence for Research on Immigration and Integration. He has served as chair and director of research and analysis for the Saskatchewan Task Force on Municipal Renewal, and as a member of the Saskatchewan Métis Electoral Consultation Panel. He is co-editor of Indian Urban Reserves in Saskatchewan and Municipal Reform in Canada. Roger Gibbins joined the University of Calgary in 1973, where he served as department head from 1987 to 1996 and is currently a faculty professor of political science. Dr Gibbins has authored, co-authored or edited twenty-one books and over one hundred articles and book chapters, most dealing with western Canadian themes and issues. In 1998 Dr Gibbins joined the Canada West Foundation, a non-partisan public policy research group based in Calgary, as its president and CEO. He was elected as a fellow of the Royal Society of Canada in 1998, and served as president of the Canadian Political Science Association from 1999 to 2000. Brooke Jeffrey teaches political science at Concordia University in Montreal, where she is director of the Graduate Program in Public Administration and Public Policy. She is the author of several books on Canadian politics and federalism, and is currently completing a book on the Liberal party of Canada. A former senior Liberal policy adviser, she is a frequent contributor to public affairs programs and media commentator. Gregory P. Marchildon is professor and Canada Research Chair at the Graduate School of Public Policy, University of Regina. He has taught at Johns Hopkins University’s School of Advanced International Studies in Washington, DC, for five years. He has been a deputy minister and secretary to the cabinet in the Saskatchewan government. In 2001 he became the executive director of the Romanow Commission, a federal royal commission examining the future of public health care in Canada. Dr Marchildon has written extensively on Canadian public policy and economic history. Hans J. Michelmann is professor of political studies at the University of Saskatchewan, headed the department from 1991 until 1997, and served as associate dean of social sciences. He has been editor of the Journal of European Integration since 1983, and was director-general of the Canadian Council for European Affairs from 1983 to 2002. He has

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written on the European Community/European Union, German and comparative politics, and international relations in federal countries. Éric Montpetit is a political science professor at the Université de Montréal. He taught previously at the École nationale d’administration publique and at the University of Saskatchewan. His work is on environmental and biotechnological policy development in North America and Europe. He is the author of Misplaced Distrust (UBC Press), selected as finalist for the 2004 Donner Prize for the best Canadian book in public policy. He has published in American, Canadian and European professional journals. Gregory M. Poelzer is dean of undergraduate studies, University of the Arctic, and associate professor of political studies, University of Saskatchewan. His research focuses on comparative aboriginal–state relations and on comparative northern policy and development. Peter H. Russell taught political science at the University of Toronto from 1958 until his retirement from full-time teaching in 1996. He has published widely in the fields of constitutional, judicial, and aboriginal politics. He is a past-president of the Canadian Law & Society Association, the Canadian Political Science Association, and the Churchill Society for the Advancement of Parliamentary Democracy. He is the founding president of CURAC (College and University Retiree Associations of Canada). Donald J. Savoie holds the Canada Research Chair in Public Administration and Governance at the Université de Moncton. He has published widely in public administration and public policy and his work has won prizes in Canada, France, and the United States. He has received honorary doctorates from several universities. He was made an officer of the Order of Canada in 1993 and elected a fellow of the Royal Society of Canada in 1992. Grace Skogstad is a professor of political science at the University of Toronto who teaches and writes in the areas of Canadian politics, comparative agricultural and food policy, Canadian federalism, and statesocietal relations. She succeeded David Smith as the book review editor for the Canadian Journal of Political Science in 1985, and served as president of the Canadian Political Science Association in 2002–3.