New Trends in Executivt Ftderalism: On the Road to Asymmetry Karl E. Hanson Submitted in partial tùlfillment of the requirements for the degee of Master of Arts at Da1 housie University Halifax, Nova Scotia September, 1 999 O Copyright by Karl E. Hanson, 1999 National Library Bibliothèque nationale 1*1 of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. rwWdIingm OttawaON K1AW OitawaON KlAûN4 Canada canada The author has granted a non- L'auteur a accordé une licence non exclusive licence aiiowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or seli reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic fomats. la forme de microfiche/^, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author' s ou autrement reproduits sans son permission. autorisation. List of Tables Table 1 - Highlights of Labour Market Development Agreements - Co-Management Model .............................................................................................. -181 Table 2 - Highlights of Labour Market Development Agreements - Devolutionary Model ........................................................................................................ 185 Abstract This thesis undertakes an examination of the approach to federai- provincial relations in Canada since the demise of the Meech Lake Accord in 1990, and the defeat of the Charlottetown Acwrd in 1992. This thesis has two objectives: to dernonstrate that there has been a change in the approach of both the federal and provincial governments to federai-provincial negotiations, and to dernonstrate that this change is not simply a retum to an era of federal-provincial relations witnessed between the end of the Second World War and the mid- 1960s. The case studies yield evidence that there are significant differences between past eras of executive federalism and this new era beginning approximateiy 1992, including a willingness to accept greater de facto asymmetry within the federation. Furthemore, the case studies indicate a lack of participation on the part of those groups who ciaim recognition under the Charter of Rights and Freedoms and who played a significant role in the Meech Lake and Charlottetown processes. The current climate of Canadian federal-provincial relations is conducive to this new approach. However any significant changes in the fomines of the sovereignty movement in Quebec may threaten this environment. First 1y, my thanks to Da1housie University for providing the SC holarship that allowed me to undertake this thesis. 1 would particularly Iike to thank Dr. Herman Bakvis for serving as my thesis supervisor. In October 1998 1 presented Dr. Bakvis with a thesis proposal that contained a theory, but little direction. Initially, it was based on a desire to provide an update of sorts to Richard Simeon's Federal-Provincial Di~fomacv and influenced by the ideas presented in J. Stefan Dupré's "Reflections on the Workability of Executive Federalism." With his help the thesis gained shape and direction, although any errors that remain are mine. In addition 1 would like to thank Dr. Peter Aucoin and Dr. Iennifer Smith for reading the thesis, and providing many helpfùl comments and suggestions. The seminar courses instructed by Dr. Bakvis and Dr. David M. Cameron, in which 1 was a student, and the many challenging discussions that occurred therein were also instrumental in the development of this thesis. Finally, 1 would like to thank my family and tnends for their love and support in this endeavor over these past twelve months, and their acceptance of my journey from the Canadian prairies to the East Coast. The unfailing support of my parents has been of immeasurable value. My thanks to ail. Introduction Now is perhaps a particularly good time to step back and ask where the the evolution of intergovernmental relations is taking us, and ask how effective are the institutions and processes of intergovemmental w- operaiion. ' It is interesting to note that this passage was written in 1979', and remains equally applicable to the present state of intergovemmental relations, particularly those interactions between governments, which are referred to as executive federalisrn, in Canada. Cntergovernmental relations still lie at the hart of the Canadian federal system and the crises that arise therein. As Simeon noted, crises of Canadian federalism are not so much crises of Canadian social or economic systerns, but of Canadian political institutions - of the relations between govemments, of the division of power and responsibility between them, and of the ways in which they deal with each other.' Mer all, it is through the federal and various provincial governments that the tensions of the federation are channeled and expressed, and the federal-provincial conferences (or more prominentIy the First Ministers' Conferences) that bear the political burden of resolving such tensions. Some twenty years after Simeon wrote the opening passage we are still taking that step back and examining the evolution of intergovernmental relations within the Canadian federation. However, just as the evolution of intergovemmental relations 1 Richard Simeon, "intergovemmental Relations and the Challenges to Canadian Federalism," Canadian Public Administration 23 (Sp~g1980): 15. It was part of a paper presented to the thirty-first Annual Cderence of Public Administratiai of Canada. Ibid. has been an on-going process, so too has the examination of its evolution, development, and changes. Since Simeon first wrote that statement our constitutional politics has come to include a Charter of Rights and Freedoms that has inextricably altered both the nature and discourse of executive federalism, and gone through two subsequent "mega- constit~tional"~rounds of executive federalism in which this new Charter-based order challenged intergovemrnental processes. The failure of both the Meech Lake and Charlottetown Accords led many to question the legitimacy of executive federalism as a rnechanism of intergovemmental dispute resolution and its inherently elitist nature. Others argued that claims that executive federalism was at an end were exaggerated, but that it must adapt to meet heightened popular sensitivities and demands for greater input into the process by societal groups that have subjectively interpreted particular Charter clauses as giving them standing in constitutional negotiations5. Since the failure of the Charlottetown Accord in 1 992 we have seen change in the processes of executive federalism. While there is agreement here that executive federalism is not dead, there is disagreement here with the assertion that it needs to be adapted to include some form of direct democracy or "extended executive federalism. The experiences of Meech Lake and Charlottetown, if nothing else, have taught us that in any future exercises of executive federalism, particularly those that involve comprehensive constitutional change, at a minimum those groups bestowed Peter H. Russell, 'The End of Mega-Constitutioaal Politics in Canada?" in The Charlatetown Accord. the Referendum and the Future of Canada, eds. Kenneth McRoberts and Patrick Monahan (Toronto: University of Toronto Press, 1993): 2 1 1-2 12. Russell defines constitutional politics at the mega level as a-politicrthat mov& beyokd disputhg the merits of specific constitutional proposais and addresses the very nature of the political comrnunity on which the constitution is-based. recognition in the Charter are going to demand consultation. Beyond the minimum, demands for inchsion and a hearing by regions that have felt lefi out may require some form of plebiscitary ratification. Executive federalism in Canada is in transition. Gone are the much- publicized First Ministen' Conferences (FMCs) with the infamous eleven men-in-suits sitting around a negotiating table either in front of television cameras or behind closed doors. In the case of the former, First Ministers would play to the television cameras for the benefit of the audience back home, and in the case of the latter the process of secret deals made behind closed doors has been perceived as elitist and pork-barreling in secret. No longer are multilateral, mega-constitutional processes the method of choice. Seeking consensus among the governments of the Canadian federation through more flexibIe and less acrimonious means has become the mandate of current processes of executive federalism. Again, the main impetus for such an approach has been the need to demonstrate that the federation as it exists is flexible and able to accommodate the objectives of al1 the provinces and their citizens, especially Quebec. This new approach to executive federalism has allowed those provinces that wish to extend their control in a particular field to do so, and those who do not can leave that control and responsibility in the hands of the federal government. The ultimate result of this approach to executive federalism and the resultant agreements has been an increase in the asymmetry of the federation.