Mega-Constitutional Politics Jackson The failed 1987 Constitutional Accord Meech Lake and Lavelin



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Mega-Constitutional Politics

Jackson - The failed 1987 Constitutional Accord (Meech Lake and Lavelin
-In drafting the Meech Lake Accord, a lot of various party interests had to be accounted for
    -Quebec wanted nation status, a say on immigration, a say on Supreme Court appointments, a veto of constitutional amendments affecting the province and limits to federal spending power in areas of provincial jurisdiction
    -the nine other premiers also made demands and virtually all were acommodated
-therein lay the problem: to achieve agreement, the PM gave away powers that were necessary to maintain a strong federal government
-The Meech Lake agreement had seven main areas of change:
     1. distinct society
     2. the supreme court
    3. spending powers
     4. veto power
     5. immigration
    6. the senate
     7. the amending formula
-when the euphoria from reaching agreement subsided, serious flaws in the accord were revealed
-none of the federal parties were willing to risk the consequences of voting against it, although the liberals submitted 8 amendments and the NDP, 2
    -none of them were accepted
-parliament passed the accord with little dissent
-however, since it contained major constitutional revisions, it required provincial unanimity
-Manitoba and Newfoundland failed to pass it before the ratification deadline
-Life went on without the accord, however Bourassa announced he would not attend any future federal-provincial conferences and the Quebec National Assembly passed Bill 150, which required a referendum on sovereignty by 1992

A New Constitutional Approach
-following the death of Meech Lake there was an appropriate period of govt mourning followed by a series of conferences, symposiums, federal-provincial meetings and even a royal commission
-the Meech failure had not killed Canada, but it ended the PC party unity
    -Mulroney’s environment minister, Lucien Bouchard, left the PC and went and formed the Bloc Quebecois with a number of dissident Quebec nationalists who already held seats in the house
-The Quebec National Assembly set up the Commission on the Political and Constitutional Future of Quebec (campeau-belanger) whose hearings led to two committees:
    1 to examine the costs of sovereignty
    1 to examine any offers of renewed federalism that might come from Canada
-Quebec’s most divisive input into the constitutional debate was the 1991 Allaire report
    -relegated currency, customs and tariffs, debt management and transfer payments to federal government
    -EVERYTHING else was to be up to Quebec
    -decisions made in the Quebec high court would no longer be appealable to the Supreme Court
     -the report was unacceptable to most Canadians because of how much it weakened the country
    -its intent was to keep pressure on the fed and assure Quebec a good bargaining position

The “Pearson Building” Proposals
-By the spring of 1992 the fed and the rest of the provinces were under a lot of pressure to reach a new agreement before Quebec went to referendum
-July 7, 1992 - the fed, the 9 provinces, 2 territories and four native groups reached a tentative agreement
    -its proposals would have weakened federal power in favour of provincial
    -quebec didn’t attend the meetings, nor agree to the proposals
-The agreement involved everything Quebec wanted from Meech Lake, in exchange for agreeing to Alberta’s demand for a Triple-E senate - it also met all aboriginal groups’ demands
-Did not go through, very sad.

The Failed 1992 Charlottetown Accord
-The Pearson Building proposals drew Bourassa back to the drawing board, along with the PM, and everyone else who was present at Pearson
-What resulted was a complicated “agreement on principles” - not a legal text - known as  Charlottetown
    -included what changes should be made to the constitution
     -further political accords to be negotiated
     -agreement to put the tentative principles to the Canadian people in a country-wide referendum

Meech Plus or Minus: The Response to Quebec
-The same demands of Meech Lake were rearticulated in Charlottetown, but Charlottetown went much farther
    -it included proposals to define “distinct society” in the constitution
    -affirmed the role of the Quebec legislature to protect Quebec culture and society
-In some areas, such as immigration, Charlottetown softened the Meech Lake proposals
-On Supreme Court appointments, there was no difference
-the main difference between charlottetown and Meech lake was in regards to the constitutional veto
    -Charlottetown would have given all of the provinces a veto
-On the surface this looked like it met Quebec’s demands, but in reality the veto would have applied only after Charlottetown was applied to the constitution, leaving the provinces somewhat out of the process
-So, most of the offers made in Meech were in Charlottetown, but some were watered down
    -it was bound to find opposition both in and outside of Quebec
-It called for major changes in the way Canada is governed:
    -Canada clause
    -Native self-government clauses
    -a new division of powers
    -social and economic union
    -institutional changes in the House and Senate

The Canada Clause
-Canada clause was to be included to express “fundamental Canadian values
     -very important to the judiciary as the courts would have been able to use it to guide all interpretations of the entire constitution
-Eight “fundamental values” were expressed, they were related to:
    1. democracy
    2. aboriginal rights
    3. distinct quebec society
    4. linguistic duality
    5. racial and ethnic equality
    6. individual and collective human rights
     7. equality of female and male persons   
    8. equality of the provinces
-on scrutiny it revealed errors in consistency and fairness
-the values were in a hierarchy
-Canadians “and their governments” were committed to some values, like minority language opportunities
-while only Canadians, not their governments, were committed to others like gender equality and aboriginal rights
-other groups, like seniors, disable persons, and children, were left out altogether

Division of Powers
-Charlottetown called for the constitutional decentralization of many federal powers
-Given to the provinces:
     -job training and culture
    -forestry and mining
    recreation and tourism
    -municipal and urban affairs

Native Self-Government
-the fact that aboriginal demands were not addressed in Meech Lake ultimately contributed to its demise
-Elijah Harper was a key figure in Manitoba’s rejection of that accord
-The Charlottetown accord had provisions for a “third level of government” for Aboriginals. It included:   
     -right to promote languages, culture, traditions
     -ensure the integrity of their society
     -expanded definition of Aboriginals
     -political accord for the Metis
     -treaty rights to be affirmed in the constitution
-the problem is that they were not well defined, they were vague
-other critics said a third level of govt would threaten federalism
-quebec declared that it would “threaten Quebec’s territorial integrity” and weaken provincial powers
-without quebec’s approval it would be unconstitutional because “creating a new order of govt requires provincial unanimity”
-argued that it would violate the charter, which calls for all canadians to be treated equally under the law
-judged that native self-government would also be exorbitantly expensive, and that territorial disputes and land claims would have a much stronger legal basis
-another concern is that too many small governments might emerge
    -could this mean up to 600 tiny govts?
-would the criminal code apply? Would education and environmental concerns apply?
-even among those who favoured self government, there was concerns that the participants in the negotiations didn’t fully understand the implications of change for issues such as jurisdictions, lands, resources, human rights, and economic and financial considerations
-many aboriginals knew that their rights could be protected in ways other than constitutional amendment

Social and Economic Union
-If Charlottetown passed, the country would have enjoyed “social and economic union”
-set out an agreement for the union on such topics as:
    -comprehensive health care system
    -high quality primary and secondary education
    -reasonable access to post secondary education
-impressive as these goals were, they were deliberately vague and would not actually hold up in court
-committed free trade within canada
-full employment
-reasonable standard of living
-there were so many attached clauses that charlottetown did not actually commit the goverment to anything as far as social and economic union goes

Proposed Institutional Changes
Called for a drastic overhaul of federal institutions, summarized as follows:

-HoC membership increased to 337, 8 more seats to Ontario and Quebec each, BC 4 and Alberta 2. Quebec guaranteed no fewer than 25% of seats. Female and aboriginal representation left out.


-Senate reform: elected either by the people of a province or territory or by a legislative assembly
-six senators from each province and one from each territory
-would not be able to force the resignation of a government
-would have some authority over legislation
-would have had to ratify the appointment of the governor of the Bank of Canada and a few other appointments

Institutional Complexity
-critics listed 10 ways these changes were inadequate
1. it would increasingly be regarded as unfair to give Quebec 25% of seats in perpetuity
2. equal provincial representation in the senate would be a constant irritant
3. national standars should be maintained in federal instutitions  - with these new proposals the senate would have h ad elections in some places and nominations in others
4. since there would be simultaneous elections for the House and Senate, appointed Senators from Quebec and elsewhere made no sense
5. there would have been too many ways for senate to tie up the govt and prevent it from acting
6. the senate’s power to send all ordinary legislation to a joint sitting with the house was controversial
7. the double majority of anglophone and francophone senators required to pass language and cultural legislation would have been trouble
8. the senate would have had a controlling veto over major govt appointments, but the House, the democratic body, would have only had scrutinizing powers. Quoi?
9. if the senate delayed the legislation of a minority government, the situation would have been destabilizing for responsible government
10. the costs of parliament would have been much too high given the size of the Canadian population’

The 1992 Constitutional Referendum
-the leaders that drafted Charlottetown agreed to put it to a referendum  on Oct. 26, 1992
-there were a lot of outspoken critics including Trudeau and Preston Manning
-as the third national referendum in canadian history, it proved a corrosive and divisive event
-only Newfoundland, PEI and New Brunswick voted in favour of it
-its defeat could be blamed on a number of things:
    -some quebeckers thought it didn’t give them enough
     -most anglophones thought it gave quebec too much
    -the deal was too complex and cumbersome for constitutional amendment
    -there was a general distrust of politicians at the time
-The unexpected defeat led provincial and political leaders to agree on one thing: moratorium on constitutional discussion
    -the leaders returned to “politics as usual”

Russel - Canada Returns to Constitutional Normalcy
-Canada’s fifth round of mega constitutional politics was not lacking in positives
    -although the Canadian people in direct constitutional democracy rejected Charlottetown, the exercise may have taught them something about their capacity to act as a sovereign people
-Canadians were now a sovereign people in only a negative sense
    -they could and would insist on direct approval of constitutional proposals that changed the fundamentals of their constitution - but they can use their constitutional power only to reject, not approve, any changes in the fundamentals
-If the lesson sunk in, the country might eschew the crisis-ridden politics of mega-constitutional politics and return to normalcy
-Post Charlottetown, the phrase “constitutional exhaustion” was on everybody’s lips
-People were sick of talking constitution, everywhere but in Quebec, where dedicated sovereigntists had strengthened their resolves
-whether canada was to be plunged into a constitution crisis again depended on Quebec’s ability to rally enough support for a secession crisis
-The first step was getting the Parti Quebecois in to power, which it did when Jacques Parizeau defeated the liberals in 1994
    -the Parti Quebecois beat the liberals by only .4 percent
    -the closeness of the election meant that the secession referendum, Parizeau’s election promise, probably wouldn’t pass
    -Anglo politicians urged him to hold the referendum quickly (get it over with)
    -Referendum set for Oct. 30 1995
-Over the next year waiting for the referendum, the two Solitudes were extremely evident
     -In Quebec there was debate about what Quebec’s constitutional future would look like   
    -In the RoC it was concern about the country breaking up
-Parizeau’s draft bill for secession was not partial, it was a firm vote for independence
    -Canada and Quebec could have an economic association, but independence was not dependent on this
-The bill provided for a rather painless separation from Canada
    -Quebec’s borders would remain the same
     -Quebec’s citizens would remain Canadian citizens
     -QC’s currency would continue to be the Canadian dollar
    -Canadian laws would remain in force until amended or appealed by the National Assembly
    -Quebec would take steps to participate as an independent country in the various international bodies to which Canada adheres (NATO, NAFTA, etc.)
    -all that would have to be worked out with Canada would be an appointment of Canada’s property and debts, and possibly an economic treaty
-Parizeau knew this was not widely popular within Quebec
    -he organized a massive public consultation process
    -despite its intentions, the public consultation actually worked to expose fissures in Quebec nationalism
-Lucien Bouchard and the Bloc Quebecois were also serious rivals to Parizea’s idea of sovereignty
     -Bouchard was a “soft sovereigntist
     -Like Levesque, he favoured a political association with Canada, not just economic
-Parizeau’s plan for sovereignty was losing ground
    -In the spring he announced that the referendum would be pushed to the fall
    -a week later he announced he would consider political association with Canada
     -Bouchard was, by this time, openly campaigning for European-style union with Canada
-the leaders of the Parti Quebecois, the Bloc and the Parti Action Democratique met in Quebec city to ratify and agreement on the terms of sovereignty
    -economic and political partnership would be negotiated with Canada
-In September they revealed their new bill
    -status sovereignty of Quebec could be claimed only after an economic and political association with Canada was negotiated - however, if this wasn’t done within a year, sovereignty anyway
    -otherwise substantially the same
    -One notable change: Aboriginal rights to self-determination would be enjoyed only if “they are exercised in a manner consistent with the territorial integrity of Quebec”
        -Essentially - Aboriginal rights take second place to Quebecois rights
-This referendum was bolder than the 1980 one in that, with a yes vote, it meant the acceptance of sovereignty regardless of how negotiations with Canada went
-Realizing that Bouchard was more publicly favoured (recently lost a leg - immune to personal attack) and that Parizeau didn’t have the credibility to cut a deal with Canada, he named Bouchard Quebec’s chief negotiator with the RoC
-The “Save Canada” team, headed by Jean Chretien and Daniel Johnson, was divided and ineffectual
-To Chretien and many Canadians, the Quebec game of making demands and threatening to secede if they weren’t met, was over
    -Chretien and his government refused to play - they offered nothing to Quebec
-A week before the referendum, when the polls showed “yes” as 6% ahead, the federal govt went into crisis mode
    -Chretien made a speech in which he said “nothing was off the table” in regards to consitutional amendment
     -On October 27, tens of thousands of Canadians, many bused in from Ontario, staged a unity rally in Montreal
-5,086,980 people (94% of eligible voters) turned out to vote. ‘No’ won 50.6 to 49.4 percent.


If it was a ‘Yes’ Vote:
-to say that the Chretien govt was unprepared for a ‘yes’ vote was a gross understatement
-it would have plunged canada and quebec into a perioud of chaos and confusion
-Anglophones in Montreal were talking of partitioning Montreal to keep the predominantly english parts of the province part of canada
-The James Bay Cree also made it clear that their  homeland would be included in a sovereign Quebec only by armed force
-Given the strong likelihood of communal violence in quebec following a yes vote, the one thing we can say about the ‘no’ vote is that it kept the Canadian tradition of civility from being tested beyond its limits
-If sovereignty had won, by that slimmest majority, to actually break up one of the oldest constitutional democracies in the world and force the entire population of quebec, regardless of what they voted, to become citizens of a new state would be a clear case of majority tyranny
-It took a while for the lessons of the referendum to finally sink in
-Chretien, a month after  the vote, announced he would make good on the promises made at verdun the week before the vote
    -a resolution would be passed in the house recognizing quebec as a distinct society
     -quebec’s constitutional veto would be restored by an indirect method
-Chretien’s ‘semi-constitutional’ proposals went over like a proverbial lead balloon
    -it was criticized as “too little” by the Quebecois
    -RoC premiers said it endangered provincial equality
-Chretien’s plans of semi-constitutional agreements with the provinces, hoping to win support, constituted ‘Plan A’
- ‘Plan B’, if A failed, was setting out the rules and conditions that would govern any attempt of a province to secede from the federation
    -to implement this plan he brought in Stephane Dion and Pierre Pettigrew
-Dion favoured a more decentralized federalism:
    -was also convinced that federalism was flexible enough to accommodate Quebec nationalism
    -argued that there was no logical reason for Quebec to leave Canada
    -said, however, the Canada would respect Quebec’s will if they “expressed a very clear desire to leave the federation”
    -insisted, however, that no federation in the world ever allows one of its constituents to secede unilaterally
    -also pointed out that if Canada’s borders can be changed, so can Quebec’s
-Plan B has been the only “heavy bout” of constitutional politics since 1995
-In other parts of the world, most attempts at unilateral secession (American South) are dealt with by force rather than constitutionalism
-The federal govt decided to challenge Quebec secession in court
-three questions were posed to the Supreme Court
    1. under constitution, can Quebec secede unilaterally?
    2. under international law, can Quebec secede unilaterally?
    3. in the event of a conflict between domestic and international law, which would take precedence
-The govt made clear that it was not its intention to block the democratic choice of Quebec
    -but argued that it was in everybody’s interest if that choice be made under the law
-The process enraged Quebec and Bouchard’s government
    -for the sovereigntests, Quebec’s right to issue a declaration of independence by a majority vote of its people rested on a higher law than Canada’s constitution
-In August of 1999, with a unanimous vote by its nine justices, the Supreme Court answered that Quebec could not legally secede unilaterally
    -while the democratic principle requires that the will of a democratic majority be given ‘considerable weight’ - there are other principles in Canada’s constitution that are equally important
    -namely, the rule of law, federalism and minority rights
-The Supreme court decision was not entirely negative for Quebec sovereigntists
    -the court held that ‘in the event of a clear majority in favour of separation’ the other participants in confederation would have an obligation to negotiate with Quebec
    -such negotiations would not be premised on the assumption that Quebec had ‘absolute legal entitlement’ to secede, nor an absolute denial of such right.
-The Supreme Court decision was a landmark for worldwide constitutionalism - no court had ever made a decision regarding the legality of secession
-Both Quebec and RoC shared happy feelings about the outcome, but for different reason
     -Bouchard liked that the RoC would be required by law to negotiate secession following a yes vote
    -Chretien liked that the decision showed that “while Canada is not a prison for Quebec,” there is a firm barrier the province would have to go over before seceding
-The Supreme court went out of its way to rule itself out as a future arbiter of questions that might arise on the conditions that trigger the duty to negotiate
    -namely, what constitutes a “clear majority
    -this question should be put only to political actors, not the courts
-A Year later, the federal govt introduced the Clarity Act
    -this bill determines whether a secession question is “very clear”
    -in the event of yes, gives the HoC the right to decide if the majority is big enough
          -does not stipulate a number, but says just over 50% is not enough
     -the bill was opposed by the Bloc and the PC in the House, but eventually passed by the liberals
-In response, Quebec introduced the Quebec Act
    -passed into law in 2000
    -gives Quebec “inalienable right to freely decide the political regime and legal status of quebec”
    -constitutes a majority as 50% (doesn’t this directly contradict the clarity act?)
-Quebec and RoC were poised for battle
-In 2001, Bouchard shocked everyone by announcing his retirement from politics
     -was succeeded by Landry, a hard-line sovereigntist
     -lost popular support
     -lost to the liberls with Jean Charest, who effectively ended the constitutional wars
-Most Canadians, and most Quebecers, have had enough of this stuff for the time being
    -this does not mean an end to constitutional politics, but a reversion to the much more traditional kind that adapts and changes slowly
Two different approaches to constitutionalism:
-Burkean: constitution as a set of laws, institutions and political practices that have passed the  test of time and have been found to serve society’s interests tolerably well
    -change is incremental and pragmatic
     -consent is mostly implicit
-Lockean: constitution is a foundational document expressing the will of the people reached through a democratic agreement
    -constitution making is supposed to be a profoundly democratic act in which a people comes together to express its sovereign will
-Canada in the 1960s-90s was essentially Lockean
-this effort failed because neither in Canada or Quebec is there a population capable of acting as a sovereign people in a positive Lockean way
-The elements of a constitution fall into four categories:
    1. the formal constitution and amendments to it
    2. organic statues that are not formal amendments but create or alter major institutions or practices
     3. political practices that have hardened into constitutional conventions
    4. judicial decisions interpreting the constitution
-Even after the big mega constitutional game fizzled out, constitutional change was taking place in ‘bits and pieces’ in all four categories. Ex:
    -Chretien’s 1996 Constitutional Amendments Act
    -The Clarity Act
    -Quebec’s Self-determination act, etc.
-The reworking of federal relations demonstrated that a freeze on formal constitutional restructuring need not result in ‘status quo federalism’
-economic motives were as important as political considerations in steering this process of federal renewal by informal constitutional means
    -many were motivated by the fed govt’s effort to reduce its stagerring fiscal deficit and by new pressures from the global economy
    -Section 121: articles of the growth, product or manufacture of any one province.. be admitted free into each of the other provinces’
        -has been virtually a dead letter of the constitution
        -federal govts have been too timid to enforce this - provinces restrict a lot of trade   
         -eventually, it became an embarassing possibility that internal trade in canada would be more restrictive than international trade
        -prompted the creation of the Agreement on Internal Trade
            -has been very disappointing
-for the forseeable future, the Canadian economic union is likely to be fostered more by the economic constitution of the new global order and the discipline of membership in the WTO than by intergovernmental agreements or reform of the Canadian constitution
-From the death of the Charlottetown Accord to the present day, the intergovernmental process that has been unfolding has had three general characteristics:
    1. tended to decentralize power in an already very decentralized federation
    2. almost religiously symmetrical: a deal for one province must mean the same deal for the others
    3. thoroughly elitist, government-driven, and out of sight politically
- A process of federal ‘rebalancing’ with the first two of these characteristics reflected what for a time was the prevailing political climate in Canada
     -the 1990s saw interests like the Reform party and conservative provincial govts strongly committed to shrinking govt in general and the federal govt in particular
-The third characteristics, the behind-closed-doors aspect of negotiations, was at odds with a growing unease in the country about the democratic deficit
-the devolutionary dimension of federal rebalancing has been primarily a matter of the federal govt agreeing to stop spending money on issues that are mainly if not entirely provincial jursidiction
    -thus Ottawa largely withdrew from mining and forestry, recreation and tourism
    -in other fields where it’s recognized that both fed and prov have roles to play, those roles were more concretely defined
-a major move in the informal restructuring of the federation during this era was the signing of the
Social Union Framework Agreement (SUFA)
    - ‘social union’ was a bit of constitutional hype borrowed from charlottetown
    -only its elite inventors and a handful of academics had a clue what it meant
    -the “framework to improve social union” targeted areas of social policy that were largely provincial
         -education, health, social welfare
    -the idea was not curtail federal involvement in these areas but to manage it in a more cooperative and consensual manner
-SUFA was a classic Canadian compromise
     -legitimacy of federal involvement in provincial jurisdiction is accepted, BUT on 2 conditions:
        1. majority of provs approve any new federal social policy initiatives
         2. a government which already has a program in the area covered by the federal intiative can receive its provinces share of the new federal funding for a related provincial policy that meets Canada-wide objectives
-While SUFA has opened up new avenues for federal-provincial cooperation, it has not removed the main source of federal-provincial conflict, money
-the one major collective initiative of the provinces in reforming the federation was the establishment in 2003 of the Council of the Federation
     -the impetus came from Quebec - now led by Charest who is committed to maintaining unity
     -the members of the council are the leaders of the provinces and territories
    -the fed is not a member, so the council is committed to meeting annually with the PM
    -generally seen as an instrument for coordinating provincial and territorial relations with Ottawa, particularly on fiscal issues
-In this period of organic and piecemeal constitutional development, some progress has been made towards achieving a more consensual, less colonial relationship of the govt with Aboriginal Peoples
     -progress, however, has not been steady and is far from complete
     -these changes have been achieved not through a grand set of amendments to the constitution such as those proposed in Charlottetown, but but through agreements with individual Aboriginal peoples or groups with the Crown
    -for aboriginal peoples, the charlottetown experience was an alienating one, and their leaders have shown no interest in returning to the constitutional table
    -the preferred approach is what was recommended in the 1996 Royal Commission on Aboriginals
         -‘people to people’ ‘nation to nation’ relationships based on the principles of recognition, respect, sharing and responsibility
- A year before RCAP, the govt announced it was prepared to recognize, without litigation, that Aboriginal people’s ‘inherent right to self government’ was one of the existing aboriginal rights recognized and affirmed in Section 35 of the constitution act
     -the govt and aboriginal communities obviously differed on their ideas of “self government”
    -the fed just devolved certain powers to Aboriginal communities- rather than let them regain control over their own societies according to their own evolving traditions.
Pg. 258

Ian Peach - The Death of Deference: The Implications of the Defeat of the Meech Lake and Charlottetown Accords for Executive Federalism in Canada
-The decline of citizen deference to the political elite, while going on all over the world, is particularly pronounced in Canada
-The author argues that, not only is deference in decline in Canada, it is dead
    -its deathbed was Meech Lake
    -its funeral march was the long, slow, painful march toward Charlottetown
    -its burial was  the defeat of that accord
-the implications of this death remain with us today
    -they continue to challenge the supremacy of territorially based conceptions of group identity in national political discourse
    -to undermined the legitimacy and efficacy of traditional intergovernmental processes of national policy-making
    -to demand that govts find ways to integrate citizens into decision making
-In Canada, the symbol for the death of deference is the Charter
    -charter opened up an avenue for a qualitatively different form of political participation
-while the story of the 1982 constitutional amendment is often told as an intergovernmental war story, non-governmental actors played a formal and influential role in the course of those events
-the charter both responded to and nurtured an urgent rights agenda
-after 1982 Canadians were able to conceive of their constitution as a culturally significant document rather than as a somewhat esoteric guide to the allocation of governmental authority that Whitaker described
-There were two separate critiques of the Meech Lake Style of intergovernmental decision making that, when combined, undermined the support that a critical mass of Canadians had for the accord, increased their distrust of the political elite, and gave them cause to believe that their lack of deference was well warranted
    1. Democratic one: Negotiations were not open to the public
    2. challenge Mulroney’s conception of who had a place in the negotiations (he left out Aboriginal groups/territories/interest groups)
-When they sat down together at Meech Lake, it is likely that neither Mulroney or any other ministers paid these criticisms much mind
    -however, the short time frame within which it was drafted, and the unwillingness of the ministers to alter the accord according to public debate locked the govt into a clash with the piublic
     -the opposition took on a new significance when Trudeau took to the spotlight to oppose it
-territorial govts took grave offence to the fact that they’d been left out of the constitution
-furthermore, the accord made territories’ aspirations to some day become pronvinces impossible
-Aboriginal people say Meech Lake as deeply offensive to their desire to become self-governing
    -also considered their exclusion from its negotiations an insult
-both the efforts save the accord and its defeat provide valuable insight into the role that democratic process plays in national policy-making
-the defeat about Meech Lake had its roots in concerns about the democratic legitimacy of the Constitution
-The aftermath of Meech Lake was a period of radical experimentation in public engagement
    -the failure of Meech seemed to send the message that people would no longer tolerate being excluded from deliberation over their own constitution
    -this time they would be thoroughly consulted, even it was just to bore them to death
-this record would suggest that political elites had realized that citizen engagement had become a mandatory part of constitutional renewal
    -when the intergovernmental negotiations that led to the Charlottetown accord commenced, citizen engagement was effectively shoved aside
-At first this divergence was subtle
     -to their credit, certain politicians like Bob Rae and Joe Clark did their best to ensure negotiations were transparent   
    -Rae also secured the full participation of four leading Aboriginal groups
     -Clark was committed to keeping people fully informed through daily press conferences
-Two possible versions of the argument that a rejection of elite models of decision making, driven by a reduction in both trust and deference, was a significant factor in the rejection of the Charlottetown accord
     1. one’s orientation to political parties, political leaders and political institutions, exerted a powerful influence on one’s response to the accord
    2. RoC canadians were not fearful about separation, but that Quebec might “get too much”
-the negative reaction to Quebec is, in many ways, a rejection of deference to elite accomodation
-How did politicians become so disconnected from the public they were supposed to represent?
    -the style of negotiations for Charlottetown showed a mutual and destructive lack of respect between politicians and the public
-Because of the structure of the pre-1982 constitution, constitutional theory and politics in Canada focused on the allocation of powers between governments
    -NGOs, citizens, Aboriginal peoples and territories were left out of the debate entirely
-Governments often still fail to understand that, with all of these new actors in our political scene, their old, familiar ways either have to obtain democratic legitimacy in the eyes of the new actors, or change into something that could gain that legitimacy
-the events of the Meech Lake/Charlottetown period hold important lessons for managing the federation today
     1. the most important of which is that many citizens care about national policy and the effects of intergovernmental relations on the quality of national programs and policies

2. the second is that if they are trusted and engaged by governments and are given enough time to understand what, for the intergovernmental relations community has become second nature, citizens are quite capable of making the kinds of accommodations among different positions that are so much a part of the intergovernmental bureaucratic machine



-Canadians are not prepared to trust their politicians to decide on their behalf what constitutes good national policy
    -deference is dead, and its ressurection is unlikely
-Canada is not the sum of its governments, but, rather a democratic polity that actually cares about the “big issues” of national policy and about finding the answer that will promote the legitimacy and integrity of the nation
-Some govts have shown a real interest in new ways of making constitutive decisions
    -BC, with its Citizen’s Assembly on Electoral Reform, is a great example
-On the whole though, Intergovernmental relations is still largely a “closed shop” of bureacrats and politicians
-in a democratic society, govts must accept that citizens have a role in shaping not only the terms of the debate, but the outcome of the debate
-furthermore, those who get to define who has access to the debate should remember the lessons of Meech Lake and Charlottetown
     -Junior govts like the territories, aboriginal groups and possibly municipalities should all have a seat at the intergovernmental table

Stevenson: Federalism and Constitutional Change
-In every existent constitutional federalism, the federation has been altered more by informal amendments than by real constitutional change
-the only real case of the constitution having to be amended because the judicial interpretation of it presents an obstacle to adaptation was the Unemployment Insurance amendment of 1940
-Constitutional amendment remains extremely important though
     -brings with it symbolic benefits that no mere adaptation can provide
    -it is a means of legitimizing and giving explicit recognition to changes that have already taken place
     -yet the substance may often be more easily achieved than the symbol
-Constitutional controversy is nonetheless important for an understanding of Canadian federalism since it draws attention to the issues that politicians consider important and to the economic and social forces they represent
-the controveries can be related to the familiar complex of conflicts and cleavages between different sectors of the economy, between english and french, metropolis and hinterland, large and small provinces, rich and poor provinces, that have shaped Canadian federalism
     -if formal changes have been rare it’s because these forces have been to evenly balanced to allow the imposition of any proposed amendment

Early Constitutional Amendments
-the BNA act of 1867 contained no procedure for its own amendment
    -it is hindsight to say this practice ignored the complexities of federalism
    -Macdonalds view was that the provincial legislatures should have no involvement with matters of the federal constitution
-FR Scott’s idea of why there was no amendment: A belief held by the fathers of confederation that their distinctive and unamerican approach to the problem of dividing legislative powers between the two levels of government has ensured that amendments would be largely uneccessary
-the question of adding an American-style amending procedure to the BNA act only arose in the 20th century
-The practice of consulting the provinces before making a request for amendment to Westminister was not invented until 1906
    -however, they were still not consistently consulted after that time either
-The unemployment insurance amendment in 1940 - which added unemployment insurance to the list of subjects on which parliament could legislate - was the first amendment that was clearly accepted in advance by all of the provinces

The Search for an Amending Formula: 1927-65
-the progress to Canadian independence following the First World War was the impetus to begin developing an amending formula
-1926- PMs of commonwealth agree that GB and the dominions are “equal in status, in no way subordinate to one another in any aspect of their domestic or external affairs, though united by a common allegiance to the crown”
    -the fact that the UK retained the power to amend the BNA act was a conspicuous and anomalous exception to this general principle
-1927 - first discussion of repatriation took place
-Provincial government, particularly of ON and QC, began reviving the “Compact theory” of Mowat and Mercier and using it to argue that the unanimous consent of all nine provinces should be both a condition of repatriation and a requirement written into the subsequent amending procedure itself
-Compact theory is the theory that Canadian confederation was an agreement between two distinct peoples, English and French, and that Quebec should have special veto powers relating to its position in the federation
    -Neither Mackenzie King, in power in 1927, or his successor R.B Bennet, dared to challenge the compact theory
-The result was a series of federal-provincial conferences to try to work out the best practice
    -it quickly became clear that what works for many other federations around the world was not going to work for Canada
    -both ON and QC would settle for nothing less than a power of veto
    -this meant that any formula would either have to extend that power to all the provinces (political nightmare) or explicitly recognize that the provinces were unequal in status
-Furthermore, the BNA act contained all sorts of provisions, some which weren’t applicable to all of the provinces, so no one formula seemed an appropriate method for all types of amendments
-1927- idea emerged to classify BNA act into categories that would be subject to different amending procedures
     -this proved to be controversial, and consensus could not be reached either n 1927 or 1936
-1949 - Louis St. Laurent’s govt - without the assent of the provinces - secured from Westminister an amendment to the BNA act which gave the federal gov’t the power henceforth to amend the act, except for:
    -exclusive powers, rights and privileges of the provinces
    -educational guarantees for religious minorities
    -use of english and french languages
    -requirement for an annual session of parliament
     -maximum amount of time between federal elections
-this initiative was presumably to stake out a bargaining position and then precipitate a discussion on amending the excluded provisions
     -in reality it just enraged the provinces
    -It was almost another decade before discussions on the subject resumed, with J. Diefenbaker
-1961 - Fulton formula - named after the federal minister of justice
    -ON and QC achieved their objective of entrenching the whole division of legislative powers, as well as the education and linguistic guarantees
    -requirement of unanimous consent for amendment was also extended to the “Senate Rule”, which guaranteed each province a fixed minimum representation in the House of Commons but it was not extended to the provisions for an annual session and a dissolution every five years.
    -most of the other provisions would be amendable with the consent of seven provinces comprising at least half the population
    -also a provision for the delegation of powers between one level of govt and the other
-Fulton-Favreau Formula: almost identical to Fulton, except parliament would no longer be able to unilaterally abolish the monarchy or to alter the scheme for allocating seats in either house among the provinces
-Saskatchewan had rejected the 1961 Fulton on the grounds that it would make it too difficult for the federal govt to deal with national problems
    -by 1964, SK’s CCF govt was defeated, and unanimity seemed to have been achieved at the federal-provincial conference in October of that year
-However, when QC premier Jean Lesage returned to QC, he orchestrated a well-orchestrated campaign against Fulton - Favreau
    -described it as a constitutional straight jacket that would hinder QC’s path to quasi-independence
    -withdrew his support for it in 1965 - humiliated his govt
-with the forces conducive to provincial autonomy on the rise, flexibility and centralization were no longer considered synonymous

Constitutional Politics 1965-79
-Canada is probably unique in that the procedures of constitutional amendment have been the subject of more discussion than the substantive content itself
-the next crisis that intervened to produce a renewal of interest in constitutional reform was the Quiet Revolution
-Quiet Revolution produced 4 distinct although related tendencies conducive to constitutional change:
    1. Quebec’s neo-nationalists (apart from the radical minority) proposed a variety of schemes to transfer power from the federal govt to QC while retaining at least a semblance of federal ties between QC and Roc
     2. many people in RoC argued that conceding some of QCs demand would persuade the nationalists to forget the larger demands, thus uniting Canadians around a new decentralized federalism
    3. QC anti-nationalists led by Trudeau promoted bilingualism, “French power” in Ottawa, and constitutional entrenchment of individual rights as alternatives to the power-transfers proposed by the nationalists
     4. Other provinces followed QC’s example by providing their own lists of demands
-These four forces and their accompanying conflicts and alliances produced almost a quarter century of conferences, meetings, committees, agendas, proposals, ultimatums, compromises, manifestoes and general unpleasantness
     -it’s arguable that constitutional politics diverted attention from subjects that should have been or more immediate concern
-by 1965 QC was becoming polarized between those who had had enough of constitutional reform and those who wanted more
-1964, the Societe de St Jean Baptiste de Montreal demanded the revision of the constitution to acknowledge the existence of “two nations”
-1967, a gathering of “middle class notable” styling themselves the Estates General  of French Canada proclaimed that QC had the right to self-determination
-In the same year, Rene Levesque withdrew from the liberals to form the


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