This is a guest Column by Owner/Editor of the Weekly Bean, Darrell Dunn.
I have managed to keep my mouth relatively shut during the whole “Separation” thing even while watching and listening to an amazing level of misinformation regarding how a “Federation” is actually works, and how the Provinces and Federal Government are supposed work together when the various Prime Ministers and Premiers haven’t lost their collective minds. First, a bit of history about the evolution and practice of cooperative federalism in Canada.
Canada is a country built on compromise from the very start. Without compromise, Canada would never have survived its first decade, let alone more than 150 years of political disagreements, constitutional wrangling and the occasional provincial premier threatening to take his ball and go home.
At the heart of this complicated relationship between Ottawa and the provinces lies a concept known as Cooperative Federalism. It is a governing philosophy based on the theory the that two levels of government, each possessing constitutionally protected powers, can accomplish more by working together than by constantly fighting over who is in charge. It seemed to be a perfectly sensible idea, at least until politicians get involved.
When Canada was created through the British North America Act of 1867, the Fathers of Confederation designed a federal system that divided legislative responsibilities between the national government and the provinces. It needs to be noted that both the Provinces and the Federal Government are each “sovereign” in respect of their identified constitutional powers. Section 91 assigned Ottawa responsibilities such as national defence, banking, criminal law and trade and commerce. Section 92 gave provinces authority over matters including property and civil rights, municipalities and local affairs, and certain issues, such as immigration, are shared jurisdiction.
The original arrangement was not particularly “cooperative”. Sir John A. Macdonald preferred a strong central government, believing national unity required firm federal authority. Provincial leaders, however, had their own ideas about how much interference they were prepared to tolerate from Ottawa and this resulted in the different jurisdictional authorities identified in sections 91 and 92. Over the following decades, court decisions, particularly those of Britain’s Judicial Committee of the Privy Council, strengthened provincial autonomy. Canada gradually evolved away from Macdonald’s vision of a heavily centralized federation. The result was a system in which both orders of government possessed substantial independent authority, whether they appreciated each other or not.
Then along came the 1930’s and the Great Depression. The impacts of this event exposed serious weaknesses in Canada’s constitutional division of powers. Unemployment, poverty and economic collapse didn’t respect provincial boundaries. Provincial governments were responsible for many social services but lacked the financial resources to address a national economic catastrophe. Ottawa possessed greater revenue-raising capacity but faced constitutional limitations on some of the programs it wished to establish.
The Second World War accelerated federal-provincial financial cooperation, and the postwar expansion of Canada’s social programs made collaboration increasingly necessary. By the 1950s and 1960s, cooperative arrangements had become central to Canadian government. Hospital insurance, Medicare, infrastructure development and social assistance increasingly involved federal financial contributions supporting programs administered by provinces.
A significant milestone came in 1957 with the introduction of federal equalization payments, intended to help provinces provide reasonably comparable public services despite differences in their fiscal capacity. Equalization was subsequently entrenched as a constitutional commitment in 1982. The principle was straightforward: Canadians should have access to important public services regardless of which province they called home. The practical implementation, naturally, was considerably more complicated and contentious.
In modern Canada, cooperative federalism operates primarily through negotiations, agreements, shared financing and intergovernmental institutions. First Ministers’ meetings (when they happen) bring together the Prime Minister and provincial and territorial premiers. Ministers responsible for health, finance, transportation and other portfolios meet regularly to coordinate policies. This arrangement is sometimes called executive federalism, because much of the negotiating occurs between political executives rather than directly through legislatures.
Health care is a good example. Provinces administer their health systems, while Ottawa contributes funding through the Canada Health Transfer and establishes national conditions under the Canada Health Act. Child care agreements, infrastructure funding and environmental initiatives provide additional examples of governments negotiating common objectives while retaining their respective constitutional responsibilities.
There is, however, an important constitutional distinction between cooperation and obedience. Cooperation does not mean subordination. The Supreme Court of Canada has recognized cooperative federalism as an important interpretive principle, but it has also emphasized that cooperation cannot override the constitutional division of powers. For example, in its 2011 Securities Reference, the Court rejected a proposed federal takeover of securities regulation while encouraging governments to develop a cooperative arrangement respecting their respective jurisdictions and that distinction matters enormously.
Cooperative federalism does not mean that Ottawa can dictate provincial policy simply because it offers to help pay the bills. Nor does it mean provinces can ignore legitimate federal authority. Both governments must operate within their constitutional powers.
Today’s disputes over energy development, environmental regulation, health funding and provincial autonomy demonstrate that cooperative federalism remains a work in progress. Western provinces have justifiably argued that federal policies intrude upon provincial jurisdiction; particularly during the Justin Trudeau era. During this ten year period in particular, Ottawa maintained that national challenges required “coordinated” national responses and routinely overstepped their authority.
The real test of cooperative federalism is not whether governments agree on everything. They never have, and probably never will. Rather, it is whether they recognize that the federation belongs to Canadians collectively, not to whichever political party happens to occupy the Prime Minister’s Office or a provincial legislature.
Perhaps the greatest lesson of cooperative federalism is that compromise is not a sign of political weakness; Rather, it is the essential ingredient of good government.
by Darrell Dunn
As first seen in the weekly Bean.
Guest column. The views expressed are the author’s own.
Comments? Email Darrell Dunn: darrelld2@shaw.ca
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