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Why Canadian federalism is bigger than Ottawa and the provinces

The fathers of confederation left cities and Indigenous voices on the outside looking in. It’s long past time to change that relationship.


 
A group of young aboriginal people who travelled 1,600 kilometre on foot from the James Bay Cree community of Whapmagoostui, Quebec celebrate their arrival on Parliament hill in Ottawa, Monday, March 25, 2013. (Fred Chartrand/CP)

A group of young aboriginal people who travelled 1,600 kilometre on foot from the James Bay Cree community of Whapmagoostui, Quebec celebrate their arrival on Parliament hill in Ottawa, Monday, March 25, 2013. (Fred Chartrand/CP)

Editor’s note: This is the first in a three-part series on institutional transformation at Canada’s sesquicentennial. This piece is on local and Indigenous governments and the future of Canadian federalism.

Spin your radio dial to the national broadcaster’s public affairs program any given Saturday and you will get an earful of our federation in action. You’ll hear a provincial premier like Brad Wall lambasting the federal Liberals for their carbon pricing scheme or a federal minister explaining how she plans to coax the provinces on side for a new health accord. Together, the same old actors trot out the protestations and justifications of federalist acrimony as if they were reading from a mothballed political science textbook.

The thing is, something new is possible under the federalist sun. Canada’s 150th birthday offers a chance to re-examine federalism—the deal that defines the anniversary. It’s a juncture at which Canadians could combine lessons from the past with radical possibilities latent in our public life, never fathomed by our constitution’s framers.

The original compact of federalism embodies both the best and the worst of what Canada can be.

On the one hand, federalism was the ground upon which two distinct nations, different in language, culture and religion, united into one country. It also opened the experimental space for innovations like national medicare and no-fault auto insurance in Quebec and Manitoba. The division of powers allowed for the tug-of-war between diversity and unity while stimulating creative, progressive change.

Yet, the 1867 agreement said nothing of the role of cities, could not have contemplated the contemporary prominence of health care and entirely excluded the political agency of Indigenous people.

READ MORE: How will Trudeau’s pan-Canadian plans survive the new federalism?

If the first 150 years of confederation were dominated by jurisdictional gambits and bluffs between Ottawa and the provinces, it’s time that we pull more seats to the table and deal more players—municipal and Indigenous governments—into the game. Doing so is not only the right thing to do, but will create more effective and democratic governance.

Canada’s massive population swing to urban areas leaves our cities unequipped to fiscally fend for themselves. While the majority of OECD countries allow local governments to tax income or sales, Canadian federalism has left municipalities with only the blunt instrument of property tax.

As Postmedia commentator Andrew Coyne has observed, “property tax conforms to no known principle of sound taxation, being neither fair nor efficient nor simple. It attempts to measure both ability to pay and resource use at the same time, and fails at both.” The result has been failing public transit, a terrifying infrastructure deficit, and a lack of imagination for regenerating public space.

It also gives rise to missed opportunities on the public health front, as those governments that operate closest to where citizens live, work and exercise remain our most poorly endowed, having to go cap in hand to the provinces to support innovative local initiatives. As populations continue to age, preventative medicine championed by empowered municipalities could mitigate crippling health care costs to provinces and perpetually escalating health transfers from Ottawa.

The current federalist arrangement also fails to account for Indigenous political authority, absurdly delegating to the federal government with one stroke of the pen responsibility over “Indians, and Lands reserved for the Indians”. Ironically, Indigenous federalism, in the form of the Haudenosaunee Confederacy, predated the Canadian version on this continent by at least four centuries. But instead of bringing First Nations into the constitutional circle, the fathers of confederation crafted a provision that sounds more like a John Wayne movie than a framework for our 21st-century democracy.

RELATED: Editorial: Federalism will shape policy on carbon emissions

Today, the feds and provinces frequently use the constitution’s division of powers as an excuse to foist responsibility on each other, avoiding properly funding services as basic as First Nations education and child health care—exemplified most strikingly by the death of five-year-old Jordan River Anderson in 2005.

Yet, Indigenous peoples now constitute the youngest and fastest growing demographic in the country. As resurgent Inuit, First Nations and Métis communities demand more autonomy from the federal government, the logical institutional transformation is the rightful inclusion of their systems of governance in the federalist fabric. As McGill scholar Tim Raybould has put it, this would be a Canada in which “‘nations’ are reconstituted and the Indian Act system of federally imposed ‘band’ government gives way to more appropriate systems of governance as part of an evolving system of cooperative federalism”.

The Supreme Court noted in the 1998 Quebec Secession Reference that, “Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today.” The realities in focus were originally French, English and agrarian. Today, urbanization, aging populations and resurgent Indigenous communities demand a grand new federalism.

We make no claim that these changes will be easy. Striking a new bargain will stretch our imaginative and communicative capacities, as well as our abilities to listen to and accommodate one another.

But federalism is meant to be malleable; at its boldest, the Supreme Court has called legislative competence “essentially dynamic”. Indeed, the fact that John A. Macdonald would barely recognize the federalism of today should give us hope for the federalism of tomorrow. That the text of the Constitution Act of 1867 makes no mention of Indigenous political agency or local heads of power should scarcely block their confederation more than the text’s failure to mention a prime minister has prevented the rise of executive power.

The skills and perspectives developed during past constitutional tussles—as well as the basic decentralized architecture of our constitution—mean that we’re better situated than just about any country to face up to these challenges and reinvent ourselves.

If we succeed, it will mean more vibrant cities, justice and power for Indigenous people, and pioneering health care—oh, and just maybe, better radio on Saturday morning.

Fraser Harland and Mark Dance are alumni of the non-partisan Parliamentary Internship Programme and current law students at McGill University. The next instalment of their Canada 150 series will look at the future of the Charter of Rights and Freedoms and the possibility of transforming Canada’s judicial institutions.


 

Why Canadian federalism is bigger than Ottawa and the provinces

  1. I can’t think of anything more fun than to spend the summer on a good old-fashioned constitutional fight.

    Sigh.

  2. With regard for the Indigenous People, rants like this are seldom heard in the appropriate policy rooms and supposed Indian Act leadership of the AFN as the wheel of federalism rarely changes unless provoked by catastrophic events. No one among the leadership of such bodies has questioned the legal implications if Indians under the Indian Act are citizens of the country! The Act suggest we are ‘Indians’ and stops there. However, as status quo always needs a lower end cluster of marginalized people the only possible way to escape is by becoming independent Independence could be a sign of what is to come. Unfortunately, the young people on reserves will be carrying the brunt of reinvention.

  3. Hindsight is always a wonderful thing. The original agreement, for lack of a better word, was the result of Canada (the aggregation of Canada East and West) crashing a party where maritime provinces conspired to ensure their economic power and turning that ship in another direction using an entire boatload of alcohol to lubricate the discussion. The Canadian motive was simple: in their current arrangement, the two halves of Canada had equal legislative power which meant that English and French Canada had a veto over each other while a larger union would surely cut those strings. The agreement,such as it was, proved to be, when the maritime parties sobered up, proved to be unpopular; so much so, that other than New Brunswick that would henceforth be free of domination by Halifax, either opted out immediately or in the case of Nova Scotia spent years trying to get out of the entanglement. Fortunately, the basic agreement went forward with Canada West largely drawing up the original legislation – in reality British legislation – with the Brits squashing any dissent along the general lines of tidying up an overly messy bit of colonization. Of course, that legislation was flawed as indicated by the number of revisions that followed. This was further complicated as individual provinces joined while frequently dictating their own terms.
    “The realities in focus were originally French, English and agrarian.” – not in the least true: the original impetus was Nova Scotia’s desire to improve their advantages in trade and commerce particularly w.r.t. competition with Massachusetts merchants and shipping; Ontario, if anything being Irish and German not so concerned about English reality. To top it off, the most violent town in the country (in modern times it might be called murder city) became the capital having changed its name in a PR whitewash exercise. However, parochialism abounds to this day; while entire blocks of countries can agree to normative standards and elimination of regulatory trade barriers, Canada can scarcely get a case of beer across provincial boundaries.

    As for aboriginal issues, the royal proclamation which sought to protect native people from colonial thuggery made aboriginals in effect wards of the crown; in a federal system, this made them a federal responsibility but then the agreement was that provinces would have control over lands and resources. In any case, no Euro politician cared that much as slow genocide (as clearly enunciated by Francis Bond Head) was widely assumed to make aboriginal issues a problem that would fade away. They didn’t and a century of rejigging the rules over and over with frequent bouts of dishonesty and abrogation of fiduciary responsibility hasn’t helped – a funny thing happened along the way: aboriginal people eventually acquired legal rights.

    • Yes your academic response is also hindsight and for better or worse is a historically written timeline. Where the difference lies in the strength of the “Indian” has now two other shadows or is it the others have us as shadows, the status ones? Federalism continues to divvy up the money (which is what the cries are about these days) and the three Inuit, Metis, Status will argue for each their own share. My ridiculous suggestion is for all three to bind and focus into one? Sometimes it is necessary to live it which provides an insight into reality.

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