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

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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. Asymmetrical federalism was an issue

during the ratification process of Meech Lake, and the negotiations of the Charlottetown

Accord. It was objected to vehemently by some provinces, particularly the western

------Kathy L. Brock, 'The End of Executive Federalism?" in New Trends in Canadian Fderalism, eds. Francois Rocher and Miriam Smith (Peterborough, On.: Broadview Press, 1995; reprint provinces for which equality of the provinces was sacrosanct. This was despite the fact that the federation has, to some degree, always been asymrnetrical.

This new approach has involved bilateral negotiations in the case of the various immigration agreements signed with al1 but two of the provinces, and the Labour-

Market Development Agreements (LMDAs). In the cases of the Agreement on Intemal

Trade (AIT), the new blood agencies (one for Quebec and one for the rea of Canada),

and the Social Union, multilateral negotiations have settled the issue, or at least achieved a framework within which the issue can be dealt. Other agreements have been reached on a regional basis, such as the three Atlantic provinces reaching an agreement with the

federal government on harmonizing their provincial sales taxes with the federal Goods

and Services Tax (GST) and having the new harmonized tax collected by Revenue

Canada. Quebec also reached a similar agreement with the federal governrnent, but in

t hat case the provincial government collects the harmonized tax.

One sharp and significant feature of this shi fi in executive federalism is

the increased role of the individual ministers of the dep-ents involved or affecteci

within both orders of government in crafiing the final agreement. The high-Ievel

involvement of the First Ministers appears to be in decline. The First Ministers in this

new era seem to only appear for the symbolic signing ceremony once the agreement has

been finalized. The other interesting difference between this new approach and the old

approach is the lack of attention these negotiations receive from the Charter groups and

their associated interest groups. It appears that either they are less attracted to these less

prominent non-constitutional negotiations, or such negotiations are low enough that they

do not appear on the radar screens of these groups. The probable reason for this is that these Charter groups have been unable to gain any leverage in these lower-key negotiations, despite their interest in the process. Thus, govenunent executives can avoid having to include these groups in their negotiations, and tailorhg the agreements to tit their demands.

In the following chapters this thesis will examine several federal- provincial negotiations and highlight those characteristics of each negotiation that indicate a difference in approach tiom the eras of federal-provinciai relations termed co- operat ive federalism and executive federalism. The new approach, perhaps most aptly described as fùnctional federalism, allows the Canadian federation to remain united yet function unhindered by the straitjacket of having to gant each province the exact same amount of juridiction and the same exceptions as every other province. It also moves away from the inherently adversarial and antagonistic environment of First Ministers'

Conferences, which avoids the attorney-client view brought to the table by most First

Ministers and allows better communication and tieedom of thought, expression and ideas arnong professionals who use the same or a similar vocabulary. This new approach also allows bilateral negotiations between the federal government and those provinces that wish to sign an agreement in a particular field to do so on an individual basis as opposed to having representatives fiom al1 the provinces and territories gathered around the same table to hammer out a multilateral agreement.

The next chapter will briefly review the early development of intergovemmental relations in the Canadian federation beginning with Confederation and concluding with the era in which intergovernmental relations were termed CO-operative federalism. It will also introduce Dupré's two models of federal-provincial relations: the Fiscal Relations Model and the Constitutional Review Model. These models will serve as a basis from which to judge this new era of intergovernmentai relations. Generally, the new era that this thesis descnbes tends to follow the Fiscal Relations Model, but makes some significant alterations in terms of the form of negotiations.

Chapter two will review the failed Meech Lake and Charlottetown constitutional accords and attempt to highiight the aspects of their negotiations that played roles in their outwmes. This chapter will also set up the three following chapters by giving a relatively detailed overview of the events that served as the impetus for the change in how federal-provincial relations are wnducted. A review of these two accords also points out the inherent dificulties in achieving a comprehensive agreement t hrough an executive-style federalism. It also serves to set up some of the policy areas in which the federal government and the provinces would reach varying agreements subsequent to the failures of the constitutional accords. These areas are the areas that will be examined as case studies in chapters three, four, and five.

The third chapter will examine the negotiations of immigration agreements between the federal govemment and the provinces. These agreements are the initial case of what this thesis chooses to terrn fùnctional federalism. They began in 1978 and operated sporadically until they were intempted in the mid-1980s by the constitutional negotiations. However, they resumed in 199 1 afier the failure of the

Meech Lake Accord with the Canada-Quebec Accord and have continued to the present with the signing and renewal of less complex agreements with the other provinces. They demonstrate the ability of the federal govemment to adapt agreements to best fit each province on a province-by-province basis. The fourth chapter wiI1 examine the negotiation of the Labour Market

Development Agreements. The dual models used to reach individual agreements with

the provinces demonstrate how the flexibility of this fùnctional federalism can allow

those provinces that wish to assume total control over a particular field of jurisdiction to

do so, but can also allow those provinces that feel they have neither the need nor the

capacity to take on increased responsibility to opt to have the federal govemment

maintai n jurisdiction while gaining increased input into the decisions made by the federal

government in these jurisdictional fields. Simultaneously, the federal government is still

able to insist that cenain national objectives be met by the provinces in these policy

fields. The LMDAs demonstrate how this fûnctional mode1 is able to provide greater jurisdictional satisfaction for al1 units of the Canadian federation.

Chapter five will examine three different cases. The negotiation of a

harmonized sales tax with three Atlantic Provinces, the negotiation of the Agreement on

Interna1 Trade, and the Social Union negotiations will be examined to demonstrate a few

different characteristics of this new approach to federal-provincial relations. The HST

negotiations demonstrated that an agreement on a particular issue could be reached with

the provinces that comprise one region of the country, while allowing the status quo to

remain in al1 other regions. The AIT provides a very good example of how an agreement

need not be either wmprehensive or necessarily complete to be agreed upon. In fact, as

many commentators pointed out, there were and remain some large holes in the AIT

agreement, but such an agreement can be reached as a first step in an ongoing process.

On the surface the Social Union rnay appear to closely resembie the executive era of

federalism; however, the important difference was the approach of the Meral government. The federal government placed al1 of its cards on the table and allowed the provinces to "opt-in" to both the Social Union and the companion Health Accord. Again there is much more adaptability for both the agreement and the participating units of the federation.

Thus, the federal government, without any declared policy shifi in terms of the format of executive federal processes, has by its actions altered the shape and form of the processes of executive federalism. The initial catalyst for such change was the failure of the Charlottetown Accord culminating the second of two attempts at getting the signature of the Quebec government on the constitution through processes of comprehensive constitutional change. The return to power of the separatist Parti

Quebecois (PQ) in 1994 and the razor-thin No victory in the sovereignty referendum that followed in 1995 led to an attempt by the other nine premiers in 1997 to reach consensus on a fiamework that might lead to an agreement with the Quebec government. The agreement, known as the Calgary Dechration, produced little more than vague acknowledgment through a statement of pnnciples that Quebec possesses a unique culture and society within the Canadian federation6. This attempt to revive executive federalism of the type that produced both Meech Lake and Charlottetown was at best a

Canada. Department of intergovernmental ffiirs. The Unity Link. Calgary Unify Meeting Seprember 14. 1997 Principles for discussion on Camdian unity. 1997. Online. Available: http://www.uni.dcalgary.html. Od. 1997, 1. The Statement of principles included that a; Canadians are equal and have rights protected by law; that al1 provinces while diverse in character have equality of statu; recognition of aboriginal peoples and cultures, the bilingual, and multicultural aspects of the country; the requirement that any iùture cwstitutional amendment confer the same power(s) on al1 provinces that it coafers on any one province; and a cornmitment by the provinces and tenitories to work in partnership with the govemment of Canada to best serve the needs of Canadians. Overall, this fjamework provided liotle opportunity for innovations that would move the process beyond what was done in bdh the Meech Lake and Charlottetown Accords. Paradoxically, the last statement through its acknowledgement that Canadians want their governments to work co-operatively and to be flexible pmvided some recognition that the process in which they were engaged could n& accomplish such co-operation and flexibility. feeble exercise. More importantly, the 1998 Supreme Court ruling on the federal government reference on secession and the guidelines for secession therein has provided the impetus for the federal government to reach agreements by the most amenable means available.

The particular development that likely has had the most significant effect on intergovernmental relations has been the Supreme Court decision on secession, namely the requirement of both the Quebec government and the other parties to the federation to sit dom and negotiate departure fiom the federation if Quebec acquires a

"clear majority vote.. .on a clear question in favour of secession"'. Such a result would confer democratic legitimacy on the initiative that al1 of the other partners in

Confederation would have to recognize. Should any Quebec government ever receive a clear majonty in favour of sovereignty through a referendum that is 'Yiee of ambiguityn8, at the very least the federal government would be obligated to negotiate the tems of secession fiom the federation. Moreover, it is likely that each provincial government would want a seat at any secession negotiation. Even if the proverbial clear majority on a clear question is never achieved, neither the federal govement nor the other provincial

çovernments could freely ignore the demands of the government of Quebec. For that matter the federal govemment could only ignore the requests or demands of any provincial government at its own peril. In any case a workable exercise of executive federalism would be required. The subsequent re-election of the PQ government in

Quebec in the fall of 1998, led by Lucien Bouchard, had led to a project of developing

7 Canada. Supreme Court of Canada. Rejèrence re &cession of Quebec. Ruling. File No.: 25506. 1998. Online. Universite de Montreal. Available: http ://www.droit.umontreal .ca/doc/csc-scc/en/rec/htmVrenvoi .en.htrnl. Oct . 1 998,4. ' Ibid, 36. the "winning conditions" for the next sovereignty referendum. The federal govemment,

to rework the federation and demonstrate its fiexibility by reaching agreements with the

provinces collectively, regionally, or individually, has launched counter initiatives to this

project.

This desire, primdy by the federal government but also by many of the

provinces, to demonstrate flexibility in the federation has cuiminated in the signing of

non-constitutional agreements granting greater control over specific fields to the

provinces mostly for the benefit of the cituens of Quebec. Interestingly, many of these

areas were included in either or both the failed Meech Lake and Charlottetown Accords.

This step-down in the level of executive federalism was first explicitly visible after the

failure of Meech Lake when the Conservative government of Brian Mulroney re-

negotiated the Cullen-Couture Agreement with Quebec. Ttiis agreement, originally

negotiated in 1978, granted greater control over immigration into Quebec to the

government of Quebec. The two governments signed the Ottawa-Quebec Accord in

199 1. Between 1978 and 1985 six other provinces also signed individual immigration

agreements with the federal government. Since 1991, an eighth province has signed an

immigration agreement with the federal government, another has indicated an interest in

exploring such an agreement, and one of the existing agreements with a province has

been re-negotiated. Since 1992, many agreements in a variety of fields have been the

resuit of this new tone in executive federalism, including labour-market training, internai

trade, and most recently the Social Union.

The term executive federalism was first çoined by Donald Smiley, and defined as the relations between the elected and appointed oficials of the two orders of government in canada.' These officials range from senior civil servants and deputy ministers to government ministers and First Ministers. For the purposes of this thesis the definition of executive federalism will also include inter-provincial relations, or what has been termed executive inter-provincialism and identified as a provincial response to executive federalism. l0 The terrn executive federalism is also used to distinguish the period of federal-provincial relations since the early 1960s, which has generally been considered one of less CO-operation and more confrontation among governments than the more coaperative immediate post-war period." It also refen to the arrangements used tci negotiate agreements between the two orders of government for the provision of programs, services, and the CO-ordination of ~olicies.l2 These arrangements Vary from agreements on fiscal arrangements and transfers from the federal government to the provincial govemments to the harmonization and similar provision of health services within the provinces, to the reduction and elimination of inter-provinciaI trade barriers, to constitutional amendments.

Executive federalism has also been characterized as 'Tederal-provincial diplomacy" and likened to international negotiations.'3 The process deals with a wide range of issues and operates through a distinctive set of institutions known as federal- provincial conferences. The participants are the heads of the eleven governments, or

9 Donald V. Smiley, Canada in Question: Federalism in the Seventies, 2d ed. (Toroato: McGraw- Hill Ryerson Limited, 1976): 54. 'O J. Stefan Dupré, "Refledions on the Workability of Executive Federalism," in htergo~ernm~ntal Relations, research mordin& Richard Simeon (Toronto and Ottawa: University of Toronto Press in cooperation with the Royal Commission on the Economic Union and Development Prospects for Canada and Suppiy and Services Canada, 1985): 2. '' Brock, 'The End of Executive Federalism?" 92. l2 Ibid, 93. 13 Richard Simeon, Federal-Provincial Diplornac~The Makinn of Recent Policv in Canada (Toronto: University of Toronto Press, 1972): 299. senior cabinet members fiom these governments, and their senior civil servants. They conflict on a variety of issues, and the conflict stems fiom differences in regional economic conditions, ideological interests, perspectives of different governments, and the competition for status and prestige. Nonetheless, they agree on some basic overall goals for the system, on certain procedures for resolving disputes, and on the need for compromise and co-operation. In seeking their individual objectives, the govemments possess a variety of political resources, which are unequally distributed and vary tiom issue to issue and time to time. They engage in a wide range of behaviour to achieve their ends, but are limited by certain procedural noms, limitations of political resources, and the actions of others in the process. l4

The fiamework can be stated like this: there is a set of interdependent actors, or partisans; t hey operate within a certain social cud imtitrttiorral ewironment; they share some g& but differ on others - it is a "mixed- motive game"; they have an isstte or set of issues on which they must negotiate; none has hierarchical control over the others; they have varying polirical resmrces; they use these resources in certain strategies and tactics; they arrive at certain mtcomes; and these outcomes have co~~seqte~icesfor themselves, for other groups in society, and for the system itself. l5

Executive federalism has met the need for a non-judicial mechanism of adjustment of the powers granted each order of govemment by sections 91 and 92 of the constitution. As Dupré points out, the fiindamental facts of Canadian constitutionalism are federalism and the cabinet-parliamentary form of govemment. The first refers to the constitutionally established orders of government and the distinct yet fiequently overlapping jurisdiction endowed upon each. The second refers to the tùsion of the

'' Ibid. '' Ibid, 12. executive and legislative institutions through the convention of responsible government.

They are fùsed so that "the wllective central energizing executive" is the "key engine of the state"16 within both orders of government. The importance of executive federalisrn grew as the modem administrative state grew and produced larger and more powerfiil bureaucracies that remained subordinated to their respective executives.

The growth of influential provincial elites in al1 governmental areas, but for the purposes of this thesis especially in the provincial bureaucracies, during the 1960s was significant and indicative of a phenomenon that had been occumng beneath the surface. The decline in importance of the jurisdiction constitutionally assigned to the federal govemment and the corresponding increase in importance of the jurisdiction assigned to the provinces was a result of public demand for increased social services and the advent of the welfare state. Most of the affect4 fields fell within provincial jurisdiction. In progress since Confederation, a process or phenomenon termed province- building was coming to light.17 The existence of provincial govemments elicited more intense communication and associational patterns within provincial boundaries than across them. Disparate regional economies were, and continue to be, complemented by the existence of socio-political cornmunities at the provincial level.

Mechanisms set in motion by the creation of political institutions permit provinces such as Saskatchewan and Alberta which possessed little sociological legitimacy at their birth to acquire it with the passage of time and creation of a unique provincial hist~ry'~

16 Thomas A. Hockin, Govemrnent in Canada flormo: McGraw-Hi11 Ryerson, 1976): 7 cited in Dupré, "Refledions on the Workability of Executive Fedetalism," 2. 17 Edwin R, Black and Alan C. Cairns, "A Differerit Perspective on Canadian Fedemlism," in Canadian Federalisrn Mvth or Reslity, ed. S. Peter Meekison, 3" ed. (Toronto: Methuen Publications, 1977; reprinted fiom Canadian Public Adminidm, 9 (March 1966): 27-45): 43. The relatively great increase in the competence and confidence of provincial administrations and the growth in elites who identified their prospects with the fortunes and favours of the provincial governments was the result of professional groups that found the provincial administrations one of the few sources of ernpl~yrnent.'~Thus, these professionals found themselves bound up with the size and prosperity of the provincial governments. These professionals included educators, forest biologists, electrical power generation specialists, highway engineers, public safety inspectors and scientists, social workers and skilled program administrators. This increase in administrative competence within the provincial governrnents rernoved any paternalism that remained in federal-provincial relations. As provincial bureaucrats and politicians became increasingly aware of their own capacities they became increasingly less likely to accept federal leadership. For the provinces, fèderalism came to be viewed and used as a political device for encouraging provincial econornies to attend to the needs of the cit izenry more appropriately. 'O

Political federalism is not the simple creature of existent, social, economic, and geographical forces, but is itself a creative influence. Govemments within the system tend to create their own supports through a variety of methods; among them are the charisma surrounding al1 distant authority, the identification of particular groups with the fortunes of particular governments, the socializing of men to accept their political environment as the naturai one, and the complex intertwining of modem government with society that endows any major proposal for change with widespread and often unforeseen consequences for al1 parts of the structure. This reciprocal relationship between federalism and the society it serves infùses both levels of govemment with durability and continuity

- - - - - '' Ibid. l9 Ibid, 39, 44. 'O Alain&. Gagnon, 'nie Political Uses of Federalism," in New Tmds in Canadian Fedenlism, eds. François Rocher and Miriam Smith (Peterborough, On.: Broadview Press, 1995; reprint 1998): 34. by sustaining the divided system of loyalties that a working federalism recpires. ''

As Richard Vernon points out, fiom the perspective of its members federal ism is defined in terms of CO-ordinatecitizenship. That is to Say that each participant in a federation enjoys a constitutionally protected membership in two polities, one regional and one central. Federal citizens, then, have divided or dual political atlegiances because there are two States occupying distinct areas of each individual's

~ife.~~Federal and provincial govemments, then, are neither neutral containers nor reflecting mirrors, but aggressive actors steadily extending the reach of their control, regdation, and manipulation into society. Thus, they foster sets of integrated relationships between themselves and the various socio-economic forces and interests in their jurisdictions- These relationships become ones of dependence and attachment to the power centre that manipulates their existence. Each govemment transmits cues and pressures to the environment resulting in a grouping of the interests manipulated by its policies into webs of interdependence arising fiom the particular version of socio- economic integration it is pursuing.23

For the sake of clarity it is important to distinguish between the terrns

"federalism," "federal political system," and "federations," although they may be used interchangeabl y throughout this thesis. '"nie term 'Yederalisrn" is basicall y a normative term that refers to the advocacy of multi-tiered government combining elements of

" Black and Cairns, "A Different Perspective on Canadian federalism," 47. " Richard Vernon, 'The Federal Citizen," in Perspectives on Canadian Fedenlism, eds. R.D. Olling and M.W. Westrnacdt (Scarborough, On.: PreaticeHall Canada Inc., 1 988): 3, 12. Alan C. Cairns, 'The Govemments and Soci6es of Canadian Federalism," in Perspectives on Canadian Federalism, eds. R.D. Olling and M.W.Westmacott ( Scarborough, On.: Prentice-Hall Canada inc., 1988; reprinted hmCanadian Journal of Political Science 10 (1977)): 107. shared-nile and regional self-rule based on the presurned value and validity of combining unity and diversity and of promoting distinct identities within a larger political p ni on.'"^

Moreover, " the essence of federalism as a normative principle is the perpetuation of both union and non-centralization at the same tirne."25 The terms 'Tederal political systems" and "federations," by cornparison, are descriptive terms applying to particular forms of political organization. The former refers to a broad category of political systems in which there are two or more levels of government, which combine the aforementioned elements of shared-mle through comrnon institutions and regional self-rule for the governments of the constituent units. Included in federal political systems are other more specific non-unitary forms of government including federations, quasi-federations and c~nfederacies.'~The latter is a particular species in which neither the federal nor the constituent units of govenunent are constitutionally abordinate to each other. Each has sovereign powers derived fiom the constitution rather than another level of governrnent.

The development of the provincial governments and their administrations

(province-building) has made execut ive federal isrn a very important mechanism. The development of these administrations lends strength to Watts' assertion of federalism as a normative principle because they have achieved significant decentralization within

Canada while simultaneously remaining unified as one country. While the rmts of this provincialism are difficult to measure, its expression is obvious. The increasing importance of areas of provincial jurisdiction has bestowed pater power, self- confidence, and assertiveness on the provincial governrnents. Increased fiscal and

'' Ronald L. Watts, Comparing Federal Systerns in the 1990s (iGngston, ûn.: inditute of Intergovemmental Relations, Queen's University, 1996): 6. " Ibid. 26 Ibid, 7. bureaucratie strength, control over natural resources, conflicting economic interests, and a sense that federal policies have been ineffective or unfair to their particular province led provincial govemments to assert that they reflect the regional will better than the central govemment and that they should be involved in developing and implementing their own development ~trate~ies.~'Linked to this was, and continues to be, the apparently decreasing ability of the federal govemment to act as the arena for expressing and integrating regional views or defining a national interest that transcends the regions or provinces. The lack of national parties, as the fortunes of both major parties became linked to particular regions, significantly hampered the ability of the federal government to garner support for its policies in al1 regions and to represent those regionsZ8 Thus, federal-provincial conferences came to assume the fùnctions of representation and accommodation that were played by strong regional leaders within the federal government as the governing party.

The reality today is that we have two levels of aggressive governments, oilen pursuing competing goals, and seeking greater control over the whole range of contemporary policy instr~ments.~~

This has been the case for nearly forty years now. It would seem that

rxecutive federalism, in some form, will remain the method of reconciling the competing goals of the federal and provincial govemments. However, as Simeon pointed out in

1979, there are three hndarnental questions that must be asked about federalism and execu t i ve federal i sm:

27 Simeon, "htergovernmental Relations and the Challenges to Canadian Federalism," 18. 28 Ibid, 19. 29 ibid, 20. a Are the regional divisions so deep, the competing ambitions and development priorities of federal and provincial governments so different, and the policy instruments for policy-making so widely shared among the two levels of govemment that we are unable to meet the challenge to develop coherent national economic and social policies? o Are the ethnic and regional tensions so great, the forces of provincial and Quebec nation-building so strong, the integrative factors so weak that we will be unable to resolve the constitutional issue, short of fragmentation? o 1s the present, or potential, machinery of intergovemmental relations able to meet these two challenges?3o

in addition to these questions, Simeon also asked,

Do we push fùrther a mode1 of federalism which seeks to place these relations at the heart of the Canadian system by moving toward what might be called coltaborative federalism, a system in which national policy is jointly made by the Meral and provincial govemments acting together, tmly a government of govemments? Or do we instead seek ways to minimize the need for intergovemmental c~llaboration?~'

It would seem that given the province-building, and nation-building in

Quebec, that has occurred over the last forty years and the divisions and competing ambit ions of the federal and provincial governments and even among provincial governments, purely national economic and social policies are impossible. One need only look not only at the Meech Lake and Charlottetown Accords, because they are the obvious examples, but also at the nurnber and variety of agreements signed between the federal and various, if not dl, provincial govemments over the last twenty years. Even when more than one province has signed an agreement with the federal govemment in the same field, the details of those agreements, which are generally not insignificant, have di ffered tiom pi-mince tcj province. For instance, the immigration agreements signed

30 Ibid, 16. with Quebec have been vastly more complex than those signed with the other provinces.

Even among those other provinces the details of their agreements have differed, and

Ontario and British Columbia have not signed any such agreement. The same holds tme

of the LMDAs. Each province, except Ontario, signed agreements assuming control over

varying combinations of the five active masures being oRered by the federal

govemment. Newfoundland, New Brunswick, Nova Scotia, and Quebec reached C agreements with the federal government on harmonizing provincial sales taxes with the

GST, but the practical firnctioning of the agreement with Quebec differed from the one with the three Atlantic provinces and the other provinces retùsed such an arrangement.

This list excludes the more "traditional" opting out by Quebec as exemplified in recent years by its refùsal to join a new national blood collection agency to replace the Red

Cross. In the end Quebec established its own such agency. And eariier this year Quebec refùsed to sign the Social Union agreement that every other province signed with the federal government, but signed on to the same Health Accord as the other provinces.

It would seem that the constitutional issue is indeed c'unsolvable'732,but only in part, although not an insignificant part, because of ethnic and regional tensions.

Today, the effect of the Charter on any discussion of the constitutional issue is at last as large as that of the ethnic and regional tensions within the federation. This aspect will be explored later. The ability of the machinery of intergovernmental relations, namely executive federalism, to meet the challenges and issues facing the federation remains in question. It was put into question in no small measure due to the process that produced

-- - '' Ibid. 3L Jennifer Smith, 'The Unsolvable Constitutional Cnsis," in New Trends in Canadian Federalism, eds. Francois Rocher and Miriam Smith (Peterborough, On.: Broadview Press; reprint 1998): 67. Meech Lake Accord, and subsequently brought into disrepute by the Charlottetown

Accord. However chameleon-like, executive federalism has adapted and survived. The variety of agreements reached between the federal government and al1 or any number of provincial governments attests to that fact. As for the last two questions posed by

Simeon, it would appear that the solution is neither of the two extremes suggested by these questions. It would appear that the direction in which the federation is moving is neither decentrakation nor centraiization, but simply and pragmatically adapting agreements and policies to meet the varying needs and ambitions of the provinces with the federal government co-ordinating these activities and ensuring a minimum national interest.

This thesis intends to demonstrate that there has been an important change in the approach and substance of executive federalism in Canada. The next two chapters will provide a bnef overview of the development of executive federalism to the defeat of the Charlottetown Accord. The ensuing three chapters will provide five case studies that demonstrate the changes that have occurred in executive federalism in the period since the defeat of the Charlottetown Accord. They will demonstrate a greater willingness to accept asymmetry within the federation, less direct involvement by the First Ministers, a new approach by the federal government in terms of making offers to the provinces, and a willingness by the provinces other than Quebec to relax their insistence on equaiity of the provinces both de jure and de facto. The mechanisms and approaches to these negotiat ions wil l be examined and contrasted with the approaches of previous periods.

The outcomes of these negotiations will also be examined to demonstrate how the new approaches lead to more workable and satisfactory outcomes. These outcomes translate in to a federation that is functional, and able to move fonvard rather than ccnstantly being caught in a jurisdictional straight-jacket. Chapter 1: The Develoament of FederaEf rovincial Relations

Federalism fiom Confederation to the Second World War saw the federal and provincial governments operate in relative isolation fiom each other.' The fiamers of the BNA Act, 1867 allocated jurisdiction over local affairs to the provincial govemments under section 92, and jurisdiction over matters of national interest to the federal govemment under section 9 1. These separate spheres of jurisdiction appeared to hold.

The only conference even mildly resembling a modern meeting ofgovernrnental executives occurred in 1 868 to sort out the respective responsibilities of the two levels of government over immigration, over which both levels had been granted concurrent jurisdiction under section 95.' This concurrency will be addressed further later in the thesis. The situation prior to the Second World War was very much the ccquasi-federal" situation described by ~heare.' At the tirne the subjects enumerated under section 92 were of little importance, and therefore hardly enough to render the system federal other than in the de jure sense. Moreover, the powers of disallowance and reservation of provincial legislation gave the system a more unitary feel, despite the fact that the

Dominion executive was very carefùl not to use them too fiequently. These powers were, and have increasingly been, subordinated to the federal principle in practice. in addition, there was in this period little overlap between those areas enumerated under section 91 as belonging to the central government and those enumerated under section 92 as belonging

' Brock, '"The End of Executive Federalism?" 95. 2 Ibid; R.A. Vineberg, "Federal-Provincial Relations in Canadian Immigration," Canadian Public Administration 2 (Sumrner 1987): 30 1; Garth Stevenson, 'The Origins of Co-operative Federalism," in Federalism and Political Community Essavs in Honour of Donald Smilev, eds. David P. Shugarman and Reg Whitaker (Peterborough, On.: Broedview Press, 1989): 15. K.C. Wheare, Federal Govemment, 4& ed. (London: Oxford University Press, 1963; reprint Westbury, CT: Greenwood Press Publishers, 1980): 20 (page references are to reprint edition). to the provincial governments. Therefore, jurisdiction in this penod has been described

as "watertight c~rn~artments'~or ciassical federalism. Consequently, aside from the

above-rnentioned conference on immigration in 1868, jurisdictionaî overlap and policy

interdependence interaction between the federal and provincial governments was

minimal.

Despite considerable expansion in the roles of the state at the provincial governrnent ievel, federal government inaction tefi the classical mode1 of ''watertight compartments" intact. This in turn rneant that complex intergovemmental machinery was unnecessary. Federal-provincial relations were confined to occasional exchanges between politicians. Before 1930, there were only nine of what we would today cal1 'Tirst Ministers Conferences". .. Al1 those held before Word War 1 were Interprovincial Conferences, with no significant federal participation. With the exception of the 1887 conference, those held before the War dealt primarily with demands for increases in fiscal transfers fiom Ottawa to help the province meet these new responsibilities. They did not serve as forums for making national decisions and federal govemments did not feel much obligation to respond to them.'

With the advent of the Great Depression by the early 1930s much

upheaval occurred in the way the federal system was viewed in Canada. Many

Canadians believed that only the federal government had the powers, resources and

expertise to handle the transformation of the political economy that was required to

resolve and prevent the recurrence of the social and political crises, and effectively

perform the new roles required of the state. The Depression caused federal-provincial

conflict on a scale unseen since the 1880s and 1890s, but neither order of govemment

was willing to develop the new economic and social policies that were needed. As a

4 Richard Simeon and lan Robinson, State. Society. and the Develapment of Canadian Federalism (Toronto and Ottawa: University of Toronto Press in cooperation witb the Royal Commission on the Economic Union and Development Prospects fbr Cana& and Supply and Services Cana&, IWO): 9. resu 1t, the degree of centraiizat ion that charactenzed Canadian federalism fiom

Confederation remained more or less unchanged despite the tremendous reduction in the fiscal autonomy of the provinces brought on by the crisis of economy. The economic and social crises of the 1930s focused the debate on questions of the division of powers and the policy consequences of federalism, rather than on minority rights (at this time primarily those of French-Canadians). The focus was squarely on the role of the state.

The legitimacy of federalism hinged on its perceived capacity to respond effectively to economic crisis in a manner consistent with social j~stice.~

During the Second World War the large-scale economic reorganization required by the conflict gave legitimacy to the centralization of federal power for its duration. Under the authority of the War Measures Act, federal powers approached those of a unitary statee7 The federal govemment, due to its strong public suppon during the war, was able to secure unanimous provincial consent to a constitutional amendment to transfer jurisdiction over unemployment insurance to the federal govemment. The

Rowell-Sirois Commission also released its report, which recommended that the classical

"watertight compartments" mode1 of federalism and the provincial autonomy it protected be preserved. It also recommended that, what it viewed as two essentially national economic functions, the cbordinated collection of progressive taxes and the introduction of a an equitable system of inter-provincial redistribution, be performed by the federal government. The Commission also recommended that a national system of unernployment insurance and ancillary programs and a contributory old age pension scheme be the exclusive responsibility of the federal government. The Dominion-

' Ibid, 49-50. ci Ibid, 87. Provincial Conference of January 194 1 focused on these recommendations, but there was a Iaclc of provincial consensus that precluded any decision for or against these proposais.

In April 194 1, the federal govemment also took over personal and corporate taxes under a "tax rental" system, which saw the federal government transfer to each province the amount that these taxes netted in 1940. These agreements were to last the duration of the war. If provincial governments did not vacate these tax fields a situation of double taxation would have been created. Eight of the nine provincial governments signed the

War Time Ta* Agreements in rapid succession. Only Ontario Premier Hepbum held out for a year before public pressure forced his consent! The War led to steps being taken to increase centralization in what has been terrned "Emergency Federalism". However, the foundations were also being laid for the post-war role of the state and modem federalism.

Keynesian economic theory, as adopted by the economic "mandarins" that the war brought to Ottawa, would enable politicians and bureaucrats to legitirnate state intervention in the economy without alienating capital. The end result was the recognition that the classical federalism of watertight compartments was at an end, but it was equally clear that Canada was not about to become a unitary state.

The era fiom the end of World War Two to the mid-1960s saw relatively harmonious relations and a sustained level of interaction between the federal and provincial governments. It was during this period that more formalized interaction between the orden of govemment occurred. The Continuing Cornmittee on Fiscal and

Economic Matters (CCFEM) institutionalized federal-provincial interaction. Such interaction had, up to this point, been limited to the periodic re-negotiation of tax

' Ibid, 104. ' Ibid, 105-107. arrangements and CO-operationwith respect to specific services and facilities9 The

CCFEM had proposeci a more institutionalized mechanism for the exchange of information and examination of technical problems relating to economic and fiscal matters.1° This era has been labeled an era of CO-operativefederalism, albeit with a decided federai predominance. l' During this penod federal-provincial relations were primaril y concerned with social programs that did not necessarii y involve regional or provincial conflict. The federal government in this era "discerned some kind of national interest"" in many provincial senices in order to justiQ its intervention. Such intervention was primarily accomplished through some form of conditional gants. The continuation of the tax-rental agreements was also used to effect a massive shifi of provincial taxation powers to the federal government. Through CO-operative arrangements significant alterations were made to the federal system by short-term agreements. l3 Such intertwining of activities of the provincial and federal orders of govemment made sections 9 1 and 92 of the BNA Act an increasingly inaccurate guide for the determination of which govemment provided which service. The predominance of the federal government in this coeperative relationship ofken led to the distortion of provincial priorities in their fields of constitutional jurisdiction as a result of these conditional gant "'sorties". l4

Shared-cost programs in cultural and social policy also allowed federal government influence in areas that were otherwise provincial jurisdiction. The most

9 Smiley, Canada in Question: Federalisrn in the Seventies, 57. 10 Brock, The End of Executive Federalism?, 96. II Robert J. Jackson and Doreen Jackson, Politics in Cana& Cuiture, institutions. Behaviour and Public PoIicy (Scarborough, On.: Prentice Hall Allyn and Bacon Caua&, 1998): 207. l2 Black and Cairns, "A Different Perspective on Canadian Federalisrn," 37. '3 Ibid, 36. controversial was increased financial support for post-secondary education as recommended by the Massey Commission. Extensions of the welfare state were ais0 made by means of shared cost programs. Programs such as the Blind Persons Act, the

Disabled Persons Act, the Unemployment Assistance Act, and most importantly health care were al1 exarnples of federal initiatives in areas of provincial jurisdiction with no constitutional mandate, except an implicit and vaguely defined spending power. The afiermath of the war and the depression spurred on this period of centralization, but as the influence of these crises waned so too did the justification for the dominance of the federal government.

In 1939, federal, provincial, and municipal governrnents shared alrnost equally in total government expendihires in Canada. Under wartime pressure the federal share rose to 87 per cent in 1944. By 1963 the federal share had dropped to 46 per cent, the provincial share had risen to 26 percent, and the municipal share was 28 percent.'5

The provinces accepted these federal initiatives into provincial jurisdiction for several rasons: shared-cost programs were less coercive than either the declaratory or disallowance powers; power was not taken fiom the provinces because they were free to not participate and retain formal jurisdiction; federal conditions tended to be loose and without detailed supervision and control in part because the conditions were ofien developed in CO-operationwith provincial officials; and, most importantly, fu from weakening the provincial governments shared-cost programs tended to strengthen them by allowing t hem to increase their revenues, expand their bureaucraties and deliver

'" Ibid, 37. '' Canadian Tax Foundation, ïhe Provincial Finances. 1965 (Toronto: Canadian Tax Foundation, 1965): 3, cited in BIack and Cairns, "A Different Perspedive on Canadian Federalism," 39. programs that their citizens wanted. l6 The federal government of the day focused on macro-economic policy that, because of the control it had secured through the tax collection agreements, resulted in only limited policy interdependence in that sphere.

Infrastructure initiatives of the federal govemment required CO-ordinationwith provincial progrms, but such initiatives were few in numbers. The limited expansion of the welfare state at this time meant that the need for extensive poticy rationalization within governments and increased CO-ordination between them was also limited. This also meant that mechanisms for intergovemmental CO-ordinationwere correspondingly limited. Officials fiom line departments concerned with the administration of social policies met with increasing regdarity, and there was a sense that such meetings should be less ad hoc, although formal consultations such as the CCFEM remained primarily at the level of oficials and rarely moved up to the political.17 At the political level, policy goals, as distinct fiom the means of irnplementation, are determined.

During this period, intergovernmental relations took the pattern that Dupré labeled the "fùnctional relations model" of executive federalism in terms of the elements of these relati~ns.'~Each element is conducive to the formation and maintenance of what

Dupré cal1s "trust ties" or ''trust re~ationshi~s".lg The "functional relations model" shares many characteristics with Dupré's "fiscai review model." Such common characteristics include, first and foremost, common values and vocabulary as a result of common technical training in a particular profession or vocation, and, sometimes, geographic proximity. However, they also include the relative ease with which both models allow

~ - - 16 Simeon and Robinson, State. Societv. and the Develwment of Canadian Federalism, 150. l7 Ibid, 150-151. 18 Dupré, "Refledions on the Workability of Executive Federalism," 5. '' Ibid. for the development of trust relationships, which is facilitated by the common values and vocabulary among the participants. Both the hnctional and fiscal rnodels have, as a characteristic that ailows their relations to be workable, issues that are tangible and quantifiable. In short, in most respects, the fiscal mode1 fits the characteristics that Dupré outlined for fùnctional relations. The appointed federal and provincial program officials involved in these fùnctional relations share common values and speak a similar language as a resu lt of common training in a particular profession or discipline. "Departmentalized cabinets" also make it more likely that the commonalties that characterize these fùnctional relations at the level of program oficials also percolates to the levels of deputy minister and minister. Moreover, deputy ministers in departrnentalized settings have ofien risen through the ranks of their departments thereby sharing the views of their program subordinates. With regards to ministers, the relatively uninhibited portfolio loyalties that result tiom a departmentalized cabinet induces a coincidence of views.

Furtherrnore, the decision-making autonomy of ministers within departmentalized cabinets means that it would be very unlikely that federal-provincial agreements would be altered or reversed by first ministers or cabinet colleagues. The trust relationships generated by these elements ensured that those federal and provincial miniaers, deputy ministers, and program oficials had, at any given time, a stake in their hiture relationshi ps. The financial lubricant supplied by conditional grmsaided and abetted these trust relationships because the resulting program activity at both levels of govemment enhances bureaucratie careers and rninisterial reputations. These gants also served to insulate programs resulting fbm these relationships fiom budgetary cornpetition. Importantly, and signiticantly, special interests also achieved virtual representation in the processes of executive federalism through the associational ties of

depanment officials and the loyalty of ministers to their clientele-onented portfolios.20

By the early 1960s, a shifl towards decentrakation was noticeable. This

was in part due to the significant changes that occurred within Quebec that have been

popularized as the "Quiet Revolution". However, resurgent provincialism in most of t he other provinces also played an extremeiy imponant role in this shifi. The provinces' regained strength and demands for more control over the Gate coincided with a period of

rapid deveiopment and expansion of the state, especiaily in areas of social programs.

Duhg this period, the machinery of intergovemental relations aiso became much more

structured. Intergovemmental relations shified tiom what was tenned administrative or

CO-operativefederalism to a new era labeled executive federalism. Executive federalism was much more conflictual as the federai and provincial governments vied for control over both new and expanded areas of juri~diction.~'The feeling was ihat:

. . .federal-provincial conflicts were becoming too serious, too profound, and too sensitive to be safely entnisted to the diplomatic and managerial skills of subordinate officials. In particulai- the evident dissatisfaction of Quebec during the Quiet Revoiution could not be accommodated by traditional means. .. 22

This conflictual relationship intensified as both orders of government became increasingly aware of public demands for more services and programs and the opposing need to control deficits. Quebec nationalism and western alienation only served to exacerbate the tension between the two orders of govemment. Intergovemmentai

20 Ibid, 5-6. '' Brock, "The End of Executive Federalism?" 97. " Garth Stevenson, Unfùlfilled Union: Canadian Federalism and National Une(Toronto: Gage Publishers, 1989): 225. relations, particularly the fhctional relations of the previous era, undenuent a significant metamorphosis. In many respects this transition paralleled the transition of govemment executives corn a departmental orientation to an "institutional" orientation. Once the budgetary distortions that the conditional grants had caused were discovered by the new rationalized budgetary processes the existence of such grants on a grand sdequickly came to an end. Equally as significant was the extent to which fhctional relationships had to adapt to broader governrnental considerations, acquired bitateral dimensions, and were forced to accommodate sudden changes in personnel and structures.23

The cases of the negotiation of the Canada Assistance Plan (CAP), the federal Adult Occupational Training Act of 1967 and Manpower Training, and Regional

Development are illustrative of the changes that occurred in federal-provincial finctional relations. In the case of the successfùl negotiations of CAP, long-standing relations among federal and provincial deputy ministers of welfare led to the emergence of CAP in a CO-operativeatmosphere. Once the decision had been made to develop the Plan, it was deliberately developed on a joint basis and a consensus on its main components was achieved almost ~~ontaneousl~.~~

Federal-provincial CO-operationwas al= facilitated by the mutual aquaintanceship, ofien fkiendship, of many of the participants at the meeting. In addition to their participation in CWC [Canadian Welfare Council] activities, pnor intergovernmental interaction and old social work 'school ties' put most of the deputy ministers and other officiais on a first name basi~.~'

23 Dupré, "Reflections on the Workability of Executive Federalism," 7. 24 Rand Dyck, 'The Canada Assistance Pian: The Ultimate in Cooperative Federalism," Canadian Public Administration 19 (1976): 590. U Ibid, 59 1. Both federal and provincial welfare officiais were onented on professional grounds to fawur a shared-cost design that would promote high national ~tandards.'~

However, these views were overridden in favour of flexibility by federal central agencies that were sensitive to broader federal-provincial issues. The sentiments of the Finance

Department, the Pnvy Council Office, and the Treasury Board were that the measures of the CAP should contain only as many conditions as were required to satisfL Parliament and maintain an efement of federal financial controL2' This was to maintain the flexibility demanded by the provinces, particularly Quebec. The final result was a CAP that relegated the matter of interprovincial discrepancies to the unconditional, fiscal capacity-related equalization payments of the Fiscal Arrangements Act, left welfare standards to the budgetary processes of provincial govenments, and accommodated the dernands of Quebec to the point where its opted-out position in the field of social assistance became largely symbolic. The CAP negotiations illustrate the continuing importance of long-standing trust ties among fùnctional officials, a new central agency presence in federal-provincial funct ional relations, and the capacity of central agency influence to contribute to a harmonious federal-provincial outcome linked to considerations that lie beyond specialized professional

The Social Security Review of 1973, by comparison, demonstrates a different manifestation of the institutionalized cabinet in fderal-provincial fùnctional relations. This Review included, by design, a significant number of participants who did not possess social welfare backgrounds, including the then newly appointed federal deputy minister of welfare, A.W. Johnson, who had previously been the secretary of the

Dupré, '' Refledions on the Workability of Executive Fededism," 7.. " Dyck, 'The Canada Assistance Plan: The Ultimate in Cooperative Federalism," 592. Treasury ~oard.~~Both federal and provincial delegations also included economists and manpower oficials, as well as social welfare speciaiists, which provided a wide diversity of backgrounds at the table. While the participants eventually acquiesced to a degree of mutual education, this was preceded by time-consuming discord bred by the extent to which manpower oficials were suspicious of phrases used by the social welfare specialists and "the social workers tended to regard the manpower people as being excessively preoccupied with employment rather than the 'whole person 9 .,730

Once federal-provincial ftnctional relations are called upon not only to accommodate central agency influence, but also to open their channels to individuals who articulate their positions tiom the standpoint of diverse professional backgrounds there is reason to temper one's expectations of what they are capable of producing. And in the result, the failure of the Social Security Review to produce a guaranteed annual income invites the fiirther consideration that, as it proceeded, this exercise unraveled an agenda item whose ramifications were simply too broad to be accommodated at any level of federal provincial relations short of the summit. The government-wide concerns that can be injected into fiinctional relations by central agency personnel do not obviate the competitive features of individual governments.. .The institutionalized cabinet reduces departmental autonomy in a quest to make wntemporary decision making manageable. However, pursuing this quest in the framework of competitive collegiality and finding the Holy Grail remain two quite di fferent things3'

The Adult Occupational Training of 1967 terminated nearly fifiy years of conditional grants in the field of vocational education and assigned the use of training as an employment policy tool to the then newly created Department of Manpower and

'"bid. l9 Ibid, 8; Dupré also indicates that Johnson's minister at the Trasury Board was Marc Monde who had been the p~cipalsecretary in the Prime Minister's Office ptior to entering electoral politics. 'O A.W. Johnson, "Canada's Social Security Review 1973-75: The Central Issues," Canadian Public Policv 1 (1 975): 47 1. 3 1 Dupré, "Reflections on the WorkabiMy of Executive Federalisrn," 8-9. Immigration. This also ended the fùnctional relations that had long been articulated by the education divisions of provincial departments of Education and the Training Branch of the federal Department of Labour. The latter department had recruited its personnel fiom the ranks of provincial vocational education specialists thus ensuring the prevalence of common professional norms across divided jurisdiction. The structure within which t hese relations had evolved, the Technical and Vocational Training Advisory Counci1, was dissolved. The federai government was going to simply purchase at fùll cost training courses for adults selected by its employment placement counselors based on their assessment of their clients aptitudes and future employment prospects.32 This training could be purchased fkom either public institutions under provincial control or private institutions. However, the provincial departments of education successtùlly interposed themselves between federal adult training and public post-secondary institutions, thus forcing federal officiais to deal with them as the exclusive brokers of training courses and eliminated private-sector-training programs as potential competitors. The federal

rovernment intended to substitute buyer-seller relations for those of executive federalism. CI

A body known as the Canada Manpower Training Program (CMTP)cummittee was

intended originally to ease the exchange of information. However, it quickly became a

forum where federal and provincial oficials divided themselves along professional lines.

As with the Social Security Review, federal economists were bent on training as an adjunct of employment and provincial education oficials were wedded to the development of the whole per~on.'~

'' Ibid, 10. 33 Ibid, 10-1 1. In the area of regional development, the development of initially the

Agricultural Rehabilitation and Development Act (ARDA) of 196 1 and Iater the

Agricultural and Rural Development Act-Fund for Rural Economic Development

(ARDA-FRED) provide tùrther examples of intergovernmental relations where the participants had different backgrounds and brought different approaches to the negotiations. ARDA-FRED was made the responsibility of the then new federal

Department of Forestry and Rural Development. Thus, agriculture officiais would no longer articulate federal-provincial relations in regional development; instead they would be articulated by planning specialists. Because the scope of ARDA-FRED embraced numerous provincial departments, it required a government-wide planning capacity at the provincial level . Under ARD A-FRED, the federal govemrnent aided especially the smaller and poorer Maritime Provinces in developing their initial versions of the institutionalized cabinet. The program agencies, planning secretariats, andlor improvement corporations that emerged were comected to the premiers' offices, cabinet cornmittees or both.

Not only did they secure provincial planning but they were, by the device of FRED, able to move the planning unit out of the provincial agriculture department and into the premier's office where there were more likely possibilities of balanced, cost-conscious, comprehensive planning not primarily directed at fmingper se.j4

This improved provincial planning capacity signaled the emergence of new bilateral networks of like-minded federal and provincial oficials. However, as these networks formed, the federal cabinet was adopting the Program Planning Budgeting System (PPBS), which emphasized program objectives and a reorganiration that

produced a Treasury Board Secretariat separate fiom the Department of Finance. These

two departments gradually impinged upon the Department of Forestry and Rural

Developrnent. The bilateral networks were fùrther put at risk with the decision-making

cabinet committees of the Trudeau government and the enhanced role of the Privy

Council Ofice (PCO) as the manager of these cornmittees. As a result of these reconfigurations, the Department of Forestry and Regional Development gave way to the new Department of Regional Economic Expansion (DREE). DREE shified the focus of regional development away fiom rural poverty and towards industrial and urban growth emphasizing public works and jobs. The Forestry and Rural Development networks had at once disappeared and their planning premises no longer coincided with those of the federal government. Thus, bilateral relations degenerated into an atmosphere of proposal and conter-proposal and it became abundantly clear that DREE preferred to by-pass provincial central agencies altogether in favour of direct dealings with individual provincial departments. By 1973, DREE had shifted its focus again. This time its orientation was the pursuit of development opportunities, which was to be shared with provincial govemments. To ensure on-site federal involvement, DREE was deconcentrated into provincial offices, each headed by a Director-General. Each DREE

Director-General operated under the umbrella of a ministeriai General Development

Agreement with a ten-year lifespan, and was designated the main negotiator of subsidiary

" Anthon y G.S. Careless, Initiative and Response 'Ibe Adaptation of Canadian Federalism to Regional Economic Develwment (The Instihrte of Public Administration of Canada and McGill- Queen's University Press, 1977): 79. agreements with the provinces. These agreements were the "action pacts7y35pursuant to which development projects would be undertaken. The field personnel of DREE, headed by its Directors-General, and their provincial counterparts formed trust ties based upon their results ~rientation.~~However, this alliance between federal field personnel and provincial officials, where the former were respectively remote fiom their headquarters and their politicians and senior bureaucrats, exposed a gap between slow decision-making at the federal end and quick decision-making at the provincial end.

Executive federalism, during the era of that deconcentrated DREE, displayed elements strongly reminiscent of the tradition-derived mode1 of federal-provincial functional relations. Federal and provincial oficials found common ground in the imperative to produce results out of their vague mandate to identify and pursue economic oppominities. The nine- year life of the bilateral structure, in which they articulated their relationship, reinforced trust relations. However.. .the provincial officials were central agents, not departmental personnel, and the federal DREE oficials, given the wide scope of regional development did not represent a department upon which clienteles with clear-cut functional interests focused. The result was, particularly in the negotiation of sectoral subagreements.. .that the societal interests most directly affected had neither direct nor virtual representation.37

Generally, the GDA approach made for a less combative form of federalism, and its proposais evolved from joint planning. However, when politicians pre-empted the process, political bargaining became a determining factor in shaping new agreements. In this sense the province would present a distinct position and the federal govemment would counter with another position. In the case of New Brunswick this resulted, in part, from the fact that the federal govemment largely represented one part of

j5 Donald J. Savoie, Federal-Provincial Collaboration: The Cana&-New Brunswick General Develwment Ameement (Montreal: McGill-Queen's University Press, 198 1): 30. 36 Dupré, "Reflections on the Workability of Executive Federalism," 14. "'Ibid, 14-15. the province and the provincial govemment had its representation in another part of the

province.'"

Despite the public image of federal-provincial summit relations as the

conferences of the eleven first ministers, these relations have corne to encompass a

variety of central agency ministers and oficials. As Dupré points out, these relations are

strongly conditioned by the extent to which the quest to make decision-making

manageable is eminently prime ~ninisterial.'~Mer ail, the first ministers are the chief

architects of their own institutionalized cabinets, and only they can unilaterally elect to

change or by-pass the decision-making structures and processes of these cabinets at any

given time on any particular matter.

Three examples illustrated by Simeon from the mid- to late- 1960s are aiso

illustrative of Dupré's models. Despite its success in establishing two pension plans, one

for Quebec and one for the rest of Canada, the Canada Pension Plan (CPP)negotiations

were demonstrative of both the difficulties of federal-provincial summit relations and the

ability of trust relations to facilitate agreement- The process began in July 1963 with

proposals and counter-proposais between various provincial govemments and the federal

government. The two central, and strongest, players on the provincial side in this case

were Ontario and Quebec. Quebec, on the recommendation of its own cornmittee,

decided to establish its own plan, claiming that the federal CPP proposal was an

infringement on the jurisdiction of Quebec. The Quebec plan would have broader and

more generous coverage and beneflts with financing that would build up a large fùnd to

311 Savoie, Federal-Provincial Collaboration, 154- 155. 39 Dupré, "Reflections on the Workability of Executive Federalism," 15. channel Quebec savings into provincial economic development.' The federal

govemment had also tied a $1 0 Old Age Secunty (OAS) increase to passage of the CPP

proposal. Ontario meanwhile felt constrained about the criticisms they were able to

make, without being accused of being a tool of the private insurance companies, despite

its concem with the cost of the plan and its effect on the private companies. The federal

government decided that, rather than trying to woo Quebec into the plan, it would

aggressively push the plan in Ontario, as it required one of those two provinces on side to

make the plan workable. The Minister of National Health and Welfare, Judy LaMarsh,

even suggested that if Ontario failed to support the plan it would be blamed for its

failure?' The federal govemment initially separated the OAS increase from the CPP

proposal and recognized that Quebec would have a separate plan, but expressed a desire

for co-ordination. The Quebec government announced at the Novernber 1963 Federal-

Provincial Conference that it would agree to the requisite constitutional amendment for

supplementary benefits if the contribution rate of the federal plan was doubled to 4%. It

had previously stated that it would agree to such an amendment it was allowed to opout

of the federal plan. The federal government knew that the Quebec plan would have these

benefits and, in order to compete, the federal proposai would have to have them tm. In

an attempt to bring Ontario on side the federal government proposed a reduction in the

scale of CPP benefits and introduces gradually payment of the reduced OAS at age 65

instead of 75. Nonetheless, Ontario still attacked these changes as not enough, while

Saskatchewan began to cnticize them as a retreat. Ontario fiirther hinted that unless the

pIan was to be tmly national, including Quebec, it too would develop its own plan.

JO Sirneon, Federal-Provincial Diplomacy, 46. Ibld, 49. Ontario premier Robarts believed that exempting Quebec fiom the plan violated the

principles of federalism. At the March 1964 conference in Quebec City, Premier Lesage

unveiled the Quebec plan to the floundering coderence. The Quebec plan had much

wider benefits than the federal plan. Combined with the threats of Ontario, this appeared to spell the end of the federd scheme.

After the proposal-counter-proposal events of four federal-provincial

summit conferences there was still no pension plan. It would take federal Forestry

minister Maurice Sauve and Liberal policy planner Tom Kent flying secretly to Quebec

City to reach a tentative agreement with Quebec officials, including Claude Morin, the

Quebec Minister of Federal-Provincial Affairs. Sauve was the most junior French

Canadian in the federal cabinet, but he was also the one who had maintained the best relations with the Quebec government.42 It was this trust relationship that was key to getting Morin and other representatives to meet and discuss the issue and ultimately getting an agreement worked out. After each side lined up support within their own cabinets for a settlement, they met again to work out the details, because there was only agreement to work out a settlement. By the end of the week agreement had been reached on establishing two plans that would be fully CO-ordinatedand have identical provisions.

Ontario had to agree to the settlement because it felt that it could not be the one to wreck the agreement. The details and legislation in both Ottawa and Quebec City remained to be worked out, but federal and Quebec officials worked extraordinarily closely drafting their respective bills although in secrecy because federal officials were concemed with the storm the opposition might cause if it discovered that a major piece of legislation was being prepared in such close collaboration with another governrnent- It would have been viewed as a threat to the parliamentary nom that new legislation should be discussed first in Parliament.

Participants were unanimous in stressing the high degree of co-operation in this process. The reasons are clear first, the political heads were strongly committed to protecting the agreement and, second, those working on the details saw themselves as pension experts sharing the same values and cornmitted simpty to preparing the best plans. Each side did want its view to prevail, but on many issues there was complete agreement fiom the start, and on others both sides were willing to trade.43

To the extent that federal-provincial summitry had failed, with the possible exception of 1982, to reach comprehensive and substantial agreements many matters is indicative of its state of disarray. This has been principal1y because the first ministers have very audibly articulated the confiicting forces with which most Canadians are familiar. These forces include Quebec nationalism, western Canadian alienationlassertiveness, Ontario's defence of it economic pre-eminence, Atlantic

Canadian resentments, and federal counter-offensives to perceiveci excesses of provincialism. The saliency of these forces has been largely due to the tendency of the first ministers to talk past each other not only fiom their respective capitals, but also when they are Sitting across the table fiom each other, rather than with each other on the basis of their policy interdependence. It is this latter approach that, to some degree, appears to have finally taken hold in the late 1990s. This will be examined later in this thesis.

Ibid, 57 Ibid, 61 Dupré has presented a "fiscal relations rnodel7# for fderal-provincial summitry. By tocusing on the 1977-82 Fiscal Arrangements he deduced a model based on an enumeration of the elements of this workable negotiation, which was underpinned by finance ministers and officiais. Financial issues are inherently tangible and quantifiab le; therefore the parameters within which they are discussed can often be delirnited within the bounds of common-sense bookkeeping. Finance offtcials share not ody the common vocabulary of macroeconomic analysis, but also the common outlook or "treasury menta~it~"~~bred by their roles as governmental fiscal managers. Network formation among finance ministers is aided by their common preoccupation with revenue, and managing the spending ambit ions of their cabinet colleagues. The fixed maximum five-year term of fiscal arrangements ahmeans that any particular configuration of issues must once again be opened to review, which eases the climate of consultation because "nothing is forever"?

What happens to this "fiscal relations model?" Its effective operation remains abundantly apparent in the design of the 1977-82 Fiscal Arrangements and, most particulad y, the Establi shed Programs Financing (EPF)feature of these arrangements. The block funding of health and postsecondary education disentangleci federal rates of spending from provincial rates of spending, and vice versa. As such, the EPF contributed to the quest to make the spending of each order of govemment manageable. It is precisely what might be expected to emerge from an intergovemmental network of finance ministers and officia~s.~'

By the mid-1 WOs, the institutionalization of the federal cabinet had prolonged the hegemony of Finance as the key horizontal ponfolio in fiscal and

44 Dupré, "Refledims on the Workability of Executive Federalism," 16. " ibid, 17. j6 Ibid. j7Ibid. economic matters. However, by the early 1980s there were two more central agencies,

Econornic Development and Social Development, to compete with the existing horizontal agencies of Finance, the Treasury Board Secretariat, and the PCO in the decision-making process. Federal-provincial summitry degenerated into the mold of provincial offensives, and federal counter-offensives, or vice versa. Over the same penod multilateral summitry failed twice (Victoria Charter, 1968-7 1; Constitution Act 1980-8 1) to achieve central institution reform, disentangle the division of powers, and recognize the historical mission of Quebec in the cultural domain. Dupré suggests a "constitutional review rnode~'~~,which he claims is the diametrical opposite of his "tiscal relations model".

Because constitutional issues are symbolic and abstract as opposed to tangible and quantifiable they are not amenable to measurable trade-offs. Many of the participants in constitutional negotiations are from the legal profession, which is inherently adversaciaI, and tend to view their respective govemments as legai clients and magniQ jealousies rather than reduce them on the basis of shared professional values. The comprehensive constitutional review process tends to focus the attention of al1 participants on the "one last play"Jg that will be the constitutional engineering feat of comprehensive change. The anticipation of this last play tends to reduce investment in long-term trust. Because the result of constitutional negotiations is relatively permanent, the negotiations are inherently more tension ridden than when "nothing is forever".

The financial negotiations of 1965-66 were the epitome of Dupré's description of first ministers regarding their governments as their legal clients. This should have really followed the fiscal relations model, but the first ministers, even within

Ibid, 20. 49 Ibid, 2 1. the Tax Structure Committee (TSC) dominated the negotiations. This was demonstrated in the anger of Saskatchewan Premier Thatcher over the new equalization formula put fonvard by the federal govement. He clairned that the new formula would 'îvipe us out''50_and demonstrated his provinciaVregiona1 jealousies by claiming that

Saskatchewan citizens were being treated as "second-class citizens" in order to benefit

~uebec.~'A similar tone emerged during provincial demands for more tax-abaternent, particular fiom Prime Minister Johnson of Quebec who called for massive reallocation of fùnctions and resources to his province.52 Premier Robarts of Ontario and Premier

Roblin of Manitoba also called for immediate tax abatement.

The situation was at least somewhat similar when constitutionai negotiations began ostensibly with The Confederation of Tomorrow Conference of 1967. it was. at least in part, an attempt by the provinces to assert their strength in the face of the perceived intransigence of the federal govemment during the financial negotiations of

1 966. Nevertheless, Bntis h Columbia, Alberta, Saskatchewan, and Newfoundland showed Meinterest in changing the constitution, and these provinces and others outside

Quebec felt issues such as regional disparities and economic issues were equally important, if not more so, than constitutional change. That the provinces had other issues on their minds became clear at the February 1969 Constitutional Conference, and much of the debate becarne a recitation before the television cameras of provincial grievances over financial and other issues. The provinces came to use this situation as a bargaining advantage. If the federal government wanted agreement on language rights and a bill of rights, it had to deal with the provinces on economic issues, particularly in the cases of

50 Simeon, Federal-Provincial Di~lomacv,75. " Ibid. Ontario and ~lberta.'~Mer much debate over taxation, unconditional gants, equalization payments, and social services and more than two years of negotiations a tentative constitutional package was finally agreed upon - the Victoria Charter.

However, for the cabinet of Quebec premier Robert Bourassa the package did not go far enough in terms of granting Quebec greater control over social policy, and the Quebec cabinet rejected the package, effectively killing it. Outside Quebec this seemed to matter little as many of the provinces showed a lack of serious involvement in and cornmitment to the constitutional reform process because they considered the issues to be too abstract and too tangential to their principal poiicy concems on "bread and butte?' issues.54

Sumrnary

It is this constitutional review model that would be followed up to and including the failed Charlottetown Accord. However, this model would first make a major impact with the f 980-8 1 patriation negotiations. The evolution of executive federalism during the 1980s and early 1990s will be examined in detail in the next chapter, with particular emphasis on the events leading up to, surrounding, and following the Meech Lake and Charlottetown Accords. This evolution included some new participants in the processes of executive federalism who introduced a new dimension to executive federalism and brought dong their own demands. The main thing to be borne in mind fi-om the brief review of the evolution of executive federalism in the latter half of this chapter, besides the models put forth by Dupré, is whether or not the changes in

" Ibid, 77. s3 Ibid, 105. executive federalism witnessed since the death of the Charlottetown Accord are really

new or simply a retum to the era of co-operative federalism. The subsequent chapters

will examine the nature of several federal-provincial negotiations and agreements that

have occurred primarily since 1992.

" Michael B. Stein, Canadian Constitutional Renewal. 1968- 198 1: A Case Studv in intemative Bareaininq (Kingston, On. : Institute of intergovernmental Relations, Queen's University, 1 989): 15. Chanter 2: Meech Lake and Charlottetown

Between the collapse of the Victoria Charter in 197 1 and 1980 federal-

provincial relations became exponentially more conflictual. Between 1975 and 1982 the

Supreme Court of Canada decided eighty constitutional cases, that is two more cases than

it had decided in its first twenty-five years as the final court of appeal in Canada.'

Nearly al1 of them dealt with the federal division of powers. This is only one measure of the increasing combativeness of federal-provincial relations. In many of these cases the

provincial governments were not merely seeking to defend their existing jurisdiction, rather they were ofien seeking to expand their jurisdiction.

Cn November 1976, the separatist PQ was eiected as the new govemment of Quebec, which brought in the Rest of Canada (ROC) a sense of urgency about the need for major constitutional change. In 1977, several govemment task forces and commissions began working on and studying constitutional proposals. These included the Task Force of Canadian Unity chaired by Jean-Luc Pepin and John Robarts (better know as the Pepin-Robarts Task Force), which was given the broad mandate of obtaining and publicizing the views of Canadians regarding constitutional change. Even Prime

Minister Trudeau had prepared his own proposals.

Following this federal initiative, the constitutional clouds burst and a torrent of constitutional proposals rained domupon the land. Some came fiom private sector organizations, others tiom provincial govemments and political parties.2

' Peter H. Russell, C~ditUtionalOdyssey Can Canadians Becorne a Sovereinn Peode? 2d ed. (Toronto: University of Toronto Press, 1993): 97. Ibid, 101. The only proposal put forward fiom Quebec was developed and released by the Quebec Liberal Party, which was in opposition at the time. Its proposals were known as the Beige Paper, and it called for: o Some decentralization of power, especially in the fields of socid policy and culture; o Increased powers for the federal governent in terrns of setting national economic policy ; O A strengthening of the roles of Quebec in central institutions such as the Supreme Court and a provincially appointed body to replace the Senate; o Quebec to be given the powers it required for "the protection and affirmation of its distinct personality," and that this not be done in a manner that would "contradict the fundamental principle that partners within the federation are fùndamentally equal.'73

The closest position to the Beige Paper was the Pepin-Robarts report, which also proposed some decentralization in the areas of social policy and culture. It also proposed greater central power over the economy and a strengthening of central institutions. However, power in constitutional politics still remained in the hands of the eleven first ministers. In late 1978, the first ministers returned to the table for another round of constitutional bargaining. At this time the Continuing Committee of Ministers on the Constitution (CCMC) was established, and chaired by the attorney-general of

Saskatchewan, Roy Romanow, and the federal minister of justice, initially Otto Lang and then Marc Lalonde. The priorities of the federal government were: the Charter of Rights, the Senate, the Supreme Court, the codification and Canadianization of constitutional monarchy, a cornmitment to the reduction of regional disparities through equalization paynients, and patriation with an amending formula. The provinces also had concerns, including: proposals to restrict the exercise of the federal spending power and declaratory power, and proposals to expand provincial jurisdiction over communications, fisheries, family law, and natural resources both on land and offshore. The process had become a grab baga of issues reflecting the pet constitutional project(s) of each govemment, except the separatist project of Quebec.

At the February 1979 constitutional conference the only agreement among the first ministers was to disagree. The defeat of the Trudeau govemment and its subsequent, and rejuvenated, retum to power with greater strength than it had before it was defeated led only to even more tumultuous relations among first ministers. The eIectoral success of the Trudeau government would make it far less accommodating to the devolutionary demands of the provinces than it was in 1979. The CCMC continued its "traveling road-show,"s now chaired by Jean Chretien and Roy Romanow. The climax of the mandate of the CCMC was an FMC in September 1980. This meeting would prove to be one of the most acrimonious on record. It was less than aided by the leak of a federai document prepared by Michael Kirby, the head of the Federal-Provincial

Relations Office (FPRO). This memorandum indicated that the federal government should be prepared to proceed unilaterally and blamed the fâilure of the conference on either "an impossibly cumbersome process" or ''the intransigence of the provinces".6

The provinces put together their own memorandum representing their best agreement on the various items, but Trudeau quickly dismissed it. Less than a month later, Trudeau announced that the federal government would proceed unilaterally with patriation and a few constitutional changes, including an amending formula that involved a federally initiated referendum if the provinces and federal govemment were deadlocked, a Charter

' Ibid, 103. ' Ibid, 104. lbid, 110. 1bid7 II1. of Rights, and a declaration of the principle of egualization. Trudeau had appealed over the heads of the provincial politicians directly to the people.

The federal government already had the support of two provincial govemments - New Brunswick and Ontario. Premier Hatfield of New Brunswick was being responsive to the dual linguistic nature of his province, and Premier Davis of

Ontario was brought on side by the omission corn the Charter any provisions comrnitting his province to oficial bilingualism. As well, there was Davis' desire to play honest broker as premier of a central and the largest province. The leader of the federal NDP,

Ed Broadbent, was also brought on side through the addition of an amendment adding slightly more provincial power over natural resources.

The special parliamentary cornmittee was the crucial instmment in building legitimacy for the federal initiative. However, unlike previous parliamentary cornmittees on the constitution, this one heard most of its submissions fiom interest groups, including: Abonginals, the multicultural community, women, religious groups, business and labour organizations, the disabled, gays and lesbians, environmental groups, and civil liberties organizations. A number of those who appeared actually had their recommendations adopted. The changes included: a clause guaranteeing gender equality under the Charter, constitutional recognition of the Aboriginal and treaty nghts of

Aboriginal peoples, a provision that the Charter be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, and the addition of mental and physical disability to the list of unconstitutional grounds for discrimination.'

' Ibid, 1 14. Opposition to the unilateral patnation was led at the federal level by the opposition Progressive Conservatives (PCs) and their leader, Joe Clark. Eight provinces al so opposed the initiative of the federal governrnent, primarily on the grounds that unilateral patnation and constitutional change violated a fùndamental unwntten constitutional convention. In the end, three provinces - Manitoba, Newfoundland, and

Quebec - al1 submitted questions to their provincial courts of appeal regarding the constitutional validity of unilateral patriation and constitutional change by the Meral govemment.8 In Manitoba and Quebec, the courts rded that provincial consent was not a constitutional requirement, but the Newfoundland court took the opposite stance. Thus, both sides appealed to the Supreme Court of Canada. In September 198 1, the Supreme

Court rendered its decision. Essentially, the decision of the justices was that there was no legal requirement of provincial consent, but that in terms of constitutional convention there was a requirement of a substantial degree of provincial consent. Constitutional conventions are those unwritten fiindamental mles concerning the proper use of legal power that have always been an essential element of the British and Canadian constitutional traditionse9

The federal government was persuaded by the Supreme Court ruling to return to the negotiation table to gain the substantial degree of provincial consent stipulated in the ruling. On the evening of the third day of this conference, seven of the so-called "gang of eight" premiers forged an accord with the federal government, thus breaking their alliance with Quebec. However, earlier in the day Quebec premier

' See also Peter H. Russell, Rainer Knopff, Ted Morton, Federalism and the Charter New ed. (Ottawa: Carleton University Press, 1993): 706. See Andrew Heard, CanaAian Constitutional Conventions: The Mamaae of Law and Politics (Toronto: Oxford University Press, 1991). Levesque had accepted in principle the idea of resolving the differences among the first ministers through a referendum. In this accord, Trudeau had to abandon his amending formula for one that involved seven provinces representing fifty percent of the population for most constitutional changes. There would also be no compensation for a province that chose to opt out of any amendment transferring power to the fderal govemment. An affirmative action rider was added to the mobility clause of the Charter so those provinces with high unemployment could protect jobs fiom out-of-province job seekers.

The controversial override or "notwithstanding" clause was also agreed to, which allows any provincial legislature of the federal Parliament to enact legislation that would operate notwithstanding the fact that it may violate certain Charter nghts. However, this ovemde could not be used against democratic, mobility, or language nghts, and had a five-yea. expiry date unless re-enacted by the legislature.

After this accord was reached, without Quebec, the federai government with the concurrence of the provinces made a few amendments to the accord in the hopes that it would me more acceptable to Quebec. One provided fiscal compensation to any province opting out of a transfer of powers in the fields of education and other cultural matters. Another was to accommodate the policy of the Quebec govemment that requires new immigrants to educate their children in French. Two other changes were also made outside of intergovemmental negotiations. One was prompted by the first ministers' decision to apply the notwithstanding clause the explicit guarantee of gender equality under section 28 of the Charter, and the other was the restoration of Aboriginal rights that the premiers could only accept if the word 'existing' was inserted before Aboriginal rights. interestingly, there was an absence of any role for the provincial legislatures in this process. Although there was no legal requirement for approval by the provincial legislatures, there had been, in the past, supporting resolutions passed by at least some provincial legislatures. In 1971, the precedent had been set by that attempt to achieve patriation. The procedure for ratification would involve the passing of identical resolutions by the Parliament of Canada and al1 provincial legislatures. In 198 1 ,only the two houses of the Parliament of Canada passed legislation supporting the package.

Nonetheless, there had been a feeling that ratification by the elected provincial legislatures would give the patriated Constitution a stronger democratic root in canada.''

Approval by the provincial legislatures was quietly eliminated tiom the patnation round in 198 1 for one reason: it would display the ernbarrassing dissensus in the country about the conditions of patriation. The one provincial legislature that did vote on the resolution approved by the federal Parliament was Quebec's National Assembly, which on 25 11 November 198 1 passed a "decree" (70 to 3 8) rejecting it . . .

Aside fiom a handfùl of changes to the original 1867 Constitution in 1982, most of it was retained intact. The only change to the division of powers, the heart of

Canadian federalism, was a slight change concerning natural resources. Otherwise, the primary target of the political aspirations of Quebec was lefi unchanged. The

Cor~srirui~ottAct, 1982 also included an amendment formula. The Charter of Rights and

Freedoms, recognition of the existing rights of the Aboriginal peoples of Canada, recognition of the principle of fiscal equalization, and the above-rnentioned granting of concurrent power to regulate interprovincial trade in natural resources and levy indirect taxes on natural resources to the provinces were also included in the 1982 package.

'O Russell, Constitutional Odyssev, 124. Without question, the change that would have the deepest and broadest impact on Canadian Society generally, and executive federalism specifically, was the

Charter. Various minority groups championed specific clauses in the Charter, including section 28 by the women's movement, section 35 by Aboriginal groups, the addition of

"mental or physical disability" to section 15 by disabled groups,'2 and, for ethnic groups, section 27." These various minority groups fought as interest groups to achieve recognition and status within the Charter. This recognition within the Charter made these groups constitutional stakeholders, and any attempt to exclude them fiom constitutional discussions would be viewed as a constitutional indignity.'4

These minorities, and especiatly their elites, because of their acknowledgment within the Charter, view themselves as part of the constitution, and see their fates as affected by the evolving meaning attached to their particular constitutional clauses. l5 It has been argueci that the constitution, with the introduction of the Charter, became an instrument of selective social recognition "engaged in fashioning and refashioning the Canadian symbolic order and differentially allocating official status to the multiplying ethnic [and social] diversities of a heterogeneous ~ociet~."'~

l1 Ibid. " Ibid, 1 14. 13 Alan C. Cairns, 'The Charter, Interest Groups, Executive Federalism, and Constitutional Reform," in Reconfiwrations- Canadian Citizenship & Constitutional Change Selected Essavs bv Alan C. Cairns, ed. Douglas E. Williams (Toronto: McClelland & Stewart Inc., 1995): 262. '' Ibid, 273. " Alan C. Cairns, "Constitutional Minoritariankm in Canada," in Reconfimrations Canadian Citizenshi~& Cmstituti~lChange Selscted Essavs bv Alan C. Cairns, ed. Douglas E. Williams (Toronto: McClelland & Stewart hc., 1995): 120. nie J.A. Corry ledure delivered at Queen's University March 6, 1990. 16 Alan C. Cairns, "Political Science, Ethnicity, adthe Canadian Cmstitution," in Disnibons Constitutional Strudes. fiom the Charter to Meech Lake, ed. Douglas E. Williams (Toronto: McClelland & Stewart Inc., 199 1): 168. In general, . ..the constitution is now an arena within which competing ethic and Aboriginal Canadians battle for relative status vis-à-vis each other and with the two founding peoples privileged by past history and, even now, by the contemporary constitution. "

Nevertheless, it has been argued that within the clauses that give these

groups recognition no evaluative phrases exist that would yield a constitutional pecking

order." The only evaluative ranking found in the Charter is presented under the language

provisions. These provisions recognize two official languages - French and English -

and that everyone has the right to the use of them in specified circumstances. Other

languages are unofficial and possess no entrenched rights of usage. Thus, there exists a

constitutional ranking of languages, but this "does not imply a corresponding ranking of

peoples."'9However, while there is no explicit evaluative ranking of peoples in these

ciauses of the Charter, the mere recognition bestowed upon particular groups has allowed

them to organize "efforts to gain the maximum subsequent advantage fiom the clauses

most linked to their constitutional fate.'"O The incorporation of these groups into the

constitutional process gave them a vested interest in the constitution through recognition

of their rights2' Such vested interest, while not evaluative, certainly requires that the

" Ibid. 18 Smith, 'The Unsolvable Constitutional Crisis," 73. Smith suggests that one "Consider the multicultural heritage clause, which requires that the Charter be iaterpreted in a manner "consistent wrth the preservation and enhancement of the mutticultural hentage of Canadians." The lead noun is 'heritage" and everyone has one, a point na efficed by the adjedive "multicultural," which logically Ulcludes "multiracial." How could it na? Mormver, there are no evaluative phrases that yield a pecking order. There is only the implication that heritages must be good things because good things are enhanced and preserved." Similarly, she argues that "Section 35 recognizes the existing Aboriginal and treaty rights aad defines the tenn bbaboriginal peoples," gives rights arising out of existing or Wure land daims agreements the same constitutional stanis as tnaty ri*, and guarantees Aboriginal and treaty rights equally to male and female persons. In short, there are no adjectives that evaluate Aboriginal peogles in relation to &ers." l9 Ibid, 73-74. 20 Cairns, "Ccmstitutional Minoritarianism in Cana&," 129. 21 Brock, "The End of Executive Federalism?" 100. issue of popular participation in constitutional reforrn be dealt with every time the constitution is at issue. As Cairns has suggested, it is not unrealistic to speak of the cornpetitive colonization of the constitution by organized interests, particularly, since

Those who claim to speak for the various groups that have won a constitutional niche for themselves are deeply suspicious of processes of constitutional change fiom which they are excluded. They do not view executive federalism as simply an expeditious way of striking intergovemmental deals away fiom the probing television camera. Rather, it is a potential threat to whatever constitutional status they have won or, as for Abonginals and women in the 1980-81 constitutional discussions, were on the verge of ~innin~.'~

The Meech Lake Accord

The Meech Lake Accord would bring a head-on collision between the processes of executive federalism and those groups recognized in the Charter. The tension that was created in 1982 between the citizens' constitution, the Charter, and the governments' constitution would be brought to the boiling point with the Meech Lake

Accord. The most contentious aspect of this uneasy CO-existencehas been the amending formula. It is a govemment-dominated process that may deliberately or inadvertently affect those parts of the constitution to which the citizenry is most intimately connected.

The Charter brought new groups into a constitutional order or, as in the case of Aboriginals, enhanced a pre-existing constitutional status. It bypassed govemments and spoke directly to Canadians by defining them as bearers of rights, as well as by according specific constitutional recognition to women, Abonginals, official-fanguage minority populations, ethnic groups through the vehicle of multiculturalism, and to those social categories explicitly listed in the equality rights section of the

22 Alan C. Cairns, "Citizens (Outsiders) and Governments (insiders) in Constitution-Making: The Case of Meech Lake," in Disruptions Constitutional Struanles, fiom the Charter to Meech Lake, ed. Douglas E. Williams (Toronto: McClelland & Stewart hc., 199 1): 1 13. Charter. The Charter thus reduced the relative status of governments and strengthened t hat of the cit kens who received constitutional encouragement to think of themselves as constitutional actors.=

In addition to the lack of trust among officiais in Dupré's "constitutional review model," constitutional conferences, beginning with Meech Lake, had to deal with the following question:

To whom does the constitution "belong," and who is entitled to participate, and in what ways, in formally amending it, are now issues on Canadians' constitutional agenda.24

Thus, as was noted above, Russell's labeling of this era as one of "mega- constitutional politics" was appropriate. Executive federalism came to resemble the

"constitutional review model," and focused on the tùndamental questions of Canadian politics and society.

Meech Lake would prove to have many of the characteristics of Dupré's constitutional model. There was certainly an atmosphere of somebody making the "one last play," and also a series of proposals and counter-proposais by the various participants with no real close working relationships among any of them. Even the meeting at Meech

Lake was, to some degree, one large counter-proposal or response to proposals unveiled by the govemment of Quebec one-year earlier at Mont Gabriel. These now famous (or infamous) five proposals included: constitutional entrenchment of a role for Quebec in selecting the three judges it had been allotteci by convention on the Supreme Court; greater powers over immigration; a veto over constitutional amendments; a limitation on

" Ibid, 109. '' Ibid. federal spending power in areas of provincial jurisdiction; and, explicit recognition as a

"distinct society."

Interestingly, no formal record or transcript of the meeting at Meech Lake was ever taken:

Although there were thirteen people in the room, many were unable to recall the precise sequence of events. One first minister often contradicted the recollections of others, particularly if doing so enhanced his role. While there is general agreement on the tone of the talk sand the order of business, there is no agreement on the controversial

From the first issue, the demands of Quebec relating to the Supreme

Court, the premiers began bargaining for themselves much the same thing that Quebec had wanted. They discussed giving each province at least one judge on the Suprerne

Court, thus expanding it fiom nine judges to eleven or fifieen judges. After two hours it was agreed that three judges fiom Quebec would be entrenched in the constitution. It was also decided that Quebec would have a voice in the selection of its judges. but so would the other provinces. The issue of pater power for Quebec over immigration went smoothly and quickly. On the spending power issue, Prime Minister Mulroney suggested making the establishment of any new shared-cost social programs conditional on the approval of seven provinces with at least fifty percent of the population. However,

Newfoundland premier Brian Peckford and Manitoba premier Howard Pawley claimed that such a formula would make it too dificult to launch any programs. This condition was eventually dropped and the language was loosened to compel the federal govemment to provide "reasonable compensation" to a province if it chose not to participate in a program, provided that it undertook "its own initiative on programs compatible with

-- r. Andrew Cohen, A Deal Undone nie Making and Breaking ofthe Meech Lake Accord (Vancouver: Dougtas & Mcïntyre, 1990): 6. national objective^."'^ The issue of recognizing Quebec was not hotly debated, and was agreed to in a remarkably swift fashion.

Nevertheless, the horse-trading, proposal-counter-proposal atmosphere quickiy returned: o Alberta premier Donald Getty demanded any agreement would have to include establishing an annual federal-provincial conference on Senate-reform; Newfoundland premier Brian Peckford felt that it Alberta was going to get Senate reform Newfoundland shouid get juridiction over the management of the fishery; a Prime Minister Mulroney first offered to abolish the Senate, then proposed giving the provinces a role in selecting Senators similar to their proposed role in selecting Supreme Court justices; O Some premiers suspected Mulroney was only trying to CO-optthem into sharing his burdens of patronage.27

Outside the meeting room, provinciai oficials were kept downstairs away tiom the first ministers. None wanted to lave the house for fear the premiers might require some help, but the premiers seldom emerged in part because negotiations would continue in their absence. Many of the senior advisers, such as Peter Meekison of

Aiberta and Gary Posen of Ontario, were veterans of ihe circuit and knew each other well . However, Mulroney believed that without the presence of these advisers that there would be less posturing and grandstanding by the premiers, thus it would be easier to achieve a deal.

At Meech Lake, there were no common values or language among the participants. There was only a sophisticated level of horse-trading among the premiers.

This horse-trading would not ensure that the deal was wound together tightly enough so that it would not come unraveled. Added ta this was a labour-style negotiation that suited

'' Ibid, 8. " Ibid, 12. the adversarial nature of the first ministem, many of whom had legal backgrounds but was unsuitable to reaching a workable political agreement because it was basically an exchange of demands with no common vision or principles among the participants. The negotiations wer9 large1y shaped by the experiences of and skills honed by Mulroney as a labour negotiator before he becarne Prime Minister. The atmosphere of labour negotiations has it own set of tensions related to the apparent need and pressure to achieve a deal as quickly as possible.

About a month, later the first ministers reconvened at the Langevin Block in Ottawa to ccclarify"'8 their accord. The main proposals discussed at this meeting were the spending power and distinct society proposais. Under the spending power proposal the word "the" was added to the phrase "national objectives" to placate those provinces, such as Manitoba, that wanted to preserve a strong leadership role for the federal government in social policy. With regards to the distinct society clause, the phrasing was aItered to recognize "the existence of French-Speaking Canadians. .. centred in Quebec but also present elsewhere in Canaday' and "English-speaking Canadians.. .concentrated outside Quebec but also present in ~uebec."'~The role of the federal Parliament and provincial legislatures in afirming this duality was to be afirmed in the Constitution.

The first ministers also agreed to put al1 of their proposals into a single package as an all-or-nothing deal when only the Supreme Court and amending formula proposais required unanimity. The rest could have been done under the 7/50 rule. This

'' Russell, Constitutional Odyssev, 139. " Ibid, 140. was mainly because the accord was viewed by the fint ministers as "aseamless web30.

In other words, it was an intrïcate set of compromises and trade-ORS. There was a beiief

among the first ministers that if even so much as one strand was pulled the entire accord

would unravel. Therefore, every legislature was granted a veto over the package that was

presented to them as a done deal that was too delicate to touch because it might a11 corne

apart. At the Langevin Block, both Ontario premier David Peterson and Manitoba

premier Howard Pawley discussed the need for public hearings and debate. Pawley had

made legislative hearings a condition of his support for the accord because the Manitoba

legislature had adopted a rule requiring public hearings before voting on any

constitutional amendment. However, Bourassa made it clear that once the accord was

approved by the Quebec National Assembly Quebec would not consider any proposed

changes that might arise out of public hearïngs in other provinces. He had done al1 his

negotiating behind closed doors and left himself no manoeuMing room for a public

phase.31 The new amending mles stated that once a resolution supporting a constitutional

amendment is adopted by one legislature, the other legislatures have a maximum of three

years to rat@ it. This technically only applied to those changes that fell under the 7/50

rule. However, because the first ministers retùsed to separate the issues, it applied to the

entire package. For the first time in Canada, the procedure for amendment required not

'O Senator Lowell Murray, testimg befbre the Special Joint Cornmittee on the Meech lake Accord, 4 August 1987. Quated in Patrick J. Monahan, Meech Lake nie inside Stow (Toronto: University of Toronto Press, 199 1): 137. 31 Russell, Constitutional Odyssev, 14 1. just ratification by executives alone, but by legislatures - "this small advance for democratic approval of constitutional changes was to prove critical.""

In fact, the three-year period seems twlong. Not ody did it give ample time for opposition to mobilize, but also it made it virtually inevitable that a number of elections wouid have been held and thus that govemrnents not part of the initial bargaining, and not committed to its success, would have been ele~ted.'~

The QNA was the first legislature to rat@ the accord on 23 June 1987.

This was seen as "a clear signal to the other governrnents across the country" that

"Meech lake would have to be ratified 'as is' or not at Clearly the Quebec government wanted quick ratification of the package, but the federal government had promised public hearings on the accord that were not expected to conclude until the fa11 of 1937, and both the Manitoba and Ontario governments had committed themselves to public hearings that would commence after the federal hearings had concludeci. Both

Ontario and New Brunswick were facing elections before the end of 1987 and the accord was sure to become an issue during the campaigns.

Public support for the accord was relatively high early on, but a clear majority of Canadians knew little or nothing about what is in the agreement. This high level of support was "sofi" and easily open to shift in the opposite direction if respected political figures or interest groups began expressing reservations about the agreement."

In the mean time several events occurred:

'' Richard Simeon, 'Why Did the Meech Lake Accord Fail?" in Canada: '(he State of the Federation 1990, eds. Rmald L. Watts and Douglas M. Brown (Kingston, On.: Instnute of intergovemmental Relations, Queen 's University, 1990): 1 9. 33 Ibid, 28. " Monahan, Meech Lake, 138. 3' Ibid, 139. O October 1987 - in New Brunswick the Frank McKenna-led Liberals defeated Premier Hatfield and his Progressive Conservatives in a 58-0 shutout. o Spring 1988 - the Manitoba NDP government led by Howard Pawley was defated in the Lesislature and subsequently replaced by the Gary Filmon-led Progressive Conservatives with the Sharon Carstairs-led Liberais becoming the official opposition. o Apnl i 989 - Newfoundland Premier and Progressive Conservative leader Bnan Peckford resigned and the Clyde Wells-Ied Liberals subsequently won government.

in the case of Manitoba, the minority government situation allowed a great deal of power to flow back to the legielature and the two opposition parties.36 In this case the primary opposition was the Liberals under Carstairs, which became the Oflicial

Opposition large1y on her opposition to the Accord. These elections, the public hearings in some provinces, and the "seamless web" position of the Meral government with regards to the ratification of the package altered the Meech lake equation that had reached agreement in May and June of 1987.

More centrally to the drarnatic shift in public opinion vis-à-vis the accord were two factors: English-speaking Canadians rejected the idea that the 1982

Constitution had been imposed on Quebec against its will and those groups that had made gains in the struggle over the Charter were excluded fiom the negotiations of this accord and "sa* the hits of their previous victory at risk."" The Aboriginal peoples of

Canada, in particular, were insulted by the dualistis vision of the country as imbedded in the distinct society clause, as were those Canadians of neither English nor French extraction. Because, as Cairns has pointed out, federalism has corne to occupy a shrinking portion of our constitutional terrain3', the rights discourse that manifest itself in the various groups given recognition by the Charter came to play a significant role in the

36 Sirneon, "Why Did the Meech Lake Accord Fail?" 29. 37 Russell, Constitutional Odvssey, 143. Meech Lake saga. The Meech Lake strategy was based on the thesis that a unanimous

collective intergovernmental unilateralism could safely ignore the vehement opposition

of Charter supporters and Aboriginal elites who believed that their constitutional interests

were being ignored or threatene~i.)~

The opposition between Charter supporters and executive federalisrn

derives initially from the fact that the Charter is an inherently anti-federal instrument,

while executive federalism is the classic vehicle for empowering governments to speak

for Canadians in terms of their membership in the territorial comunities of province and

nation. The Charter confionts these territorial identities with a stress on individuai

citizens, and a stress on the varied social categories it singles out.' The Meech Lake

Accord provided the first opportunity, aside from the role of women and Aboriginal

peoples in assuring their clauses in the face of recaicitrant premiers in 198 1, for those

groups recognized in particular sections of the Charter to define their place and role in

constitutional change-

Women's groups became alerted to the accord after the Langevin meeting

where the First Ministers had added a clause to the accord specifically protecting

Aboriginal and multicultural rights fiom the distinct society clause. Women's groups

feared that the distinct society clause might be used to diminish equality rights under the

Charter. During the hearings of the special cornmittee joint comrnittee of the House of

Commons and the Senate at least a half a dozen women's organizations came fonvard to demand specific protection for equality rights based on the argument that the specific reference to Aboriginal and multicultural rights implied that equality could be negatively

38 Cairns, 'The Charter, interest Groups, Executive Federalism, and Constitutional Reform," 262. j9 Ibid, 264. affected by the distinct society clause.'" However, women's groups within Quebec argued the opposite, namely, that the distinct society clause would not affect the equality rights of women. The head of the Quebec Council on the Status of Women argued before the committee that the arguments of women's groups outside Quebec made the unreasonable assumption that the province of Quebec had a bias against women. The federal government in defence of its distinct society clause seized upon this division among women's groups.

The special joint committee ultimately recommended ratification of the accord, but was critical of the provisions that ailowed the provinces but not the two temtories to nominate judges for the Supreme Court and the provision that required unanimous provincial consent for the creation of new provinces. Nevertheless, the committee heeded the argument of Senator Lowell Murray that reopening the accord would cause it to unravel. However, the damage was already done. The committee itself had bluntly criticized certain features of the accord and the parade of witnesses at the hearings opposed to the accord created the impression that the accord was massively unpopular among ordinary Canadians. These opponents appeared to be a broad-based coalition of women's organizations, multicultural groups, nurses, day-care advocates, and

Aboriginal people in contrat to the academics and constitutional experts who were its primary supporters.J2 The "no changes" line by supporters of the accord also becarne a catalyst for its opponents. Political momentum had shifted in favour of the opponents of the accord.

JO Ibid, 270. 41 Monahan, Meech Lake, 14 1. '* Ibid, 143-144. In the mean time, Premier Peterson had been re-elected in Ontario with a majority government, so public hearings would go ahead there, although the accord would corne through relatively unscathed. However, the position of the new New

Brunswick premier was rather ambiguous. McKema sought changes to the accord, but never committed himself to rejecting the accord if these changes couid not be achieved.

He seemed to believe that he had greater bargaining Ieverage if his final position was not re~ealed.~)He too had committed himself to public hearings on the accord, which would not begin until the fa11 of 1988, meaning that it would be sometime in 1989 before the issue would be resolved in New Brunswick. Several other events had also occurred: o Manitoba Premier Pawley, Ontario and Prince Edward Island. refiised to introduce the accord into their legislahires as leverage against the impending signing of the Canada-U. S. Freed Trade Agreement. o Upon the eiection of the Filmon-led Progressive Conservatives, the Manitoba govemment joined New Brunswick in a commitment to ccmeaninghl" public hearings on the accord, thus placing another obstacle in the path of the accord.

A year afier the meeting at Meech Lake only three provinces -Quebec,

Saskatchewan and Alberta - and the federal Parliament had ratified the accord, but five other provinces - Prince Edward Island, Nova Swtia, Ontario, British Columbia, and

Newfoundland - were proceeding with ratification. By July 1988, eight provinces had ratified the deal. OnIy Manitoba and New Brunswick were the holdouts, but there was no way of forcing a quick resolution to the issue. However, in December 1988 some potentially lethal blows hit the accord. The Supreme Court mied on the constitutional validity of the "French-only" sign law of the Quebec govemment. It decided that the law was unconstitutional. The reaction of Premier Bourassa to the decision would be crucial

43 Ibid, 146. in terms of maintaining the support of Filmon for Meech Lake. When Bourassa invoked the notwithstanding clause in response to the Supreme Court decision, Filmon secured the consent of both the NDP leader Gary Doer and Carstairs to withdraw the resolution corn the legislature. By this point Meech Lake was al1 but dead.

Nonetheless, cornmirtees in both Manitoba and New Brunswick pondered the witnesses they had heard and prepared their respective reports. Both committees found Meech Lake in its then-present form to be unacceptable. These committees did not report untif the fall of 1989, at which point both premiers took their demands for changes to the other premiers. The Quebec government and the media roundly criticized the

Manitoba report. In the mean time Newfoundland, which had passed the accord, had an election in which the Liberals under Clyde Wells came to power. While the accord had not been an election issue, Wells was clear fi-omthe beginning in his view that Meech

Lake was not in the best interests of Newfoundland. Wells objected to "special status" for Quebec and the weakening of the powers of the federal government. He îürther indicated that he was prepared to introduce a resolution in to the House of Assembly revoking the support of his province if his concerns were not addressed. In response,

Senatar Murray warned the Newfoundland premier that overtuming the constitutional endorsement would threaten the CO-operationand harmony needed to make the country work.

Meanwhile, Prime Minister Mulroney canceled a scheduled First

Ministers' meeting for July 1989 in Prince Edward Island. McKenna, Filmon, and Wells continued to insist that they were not trying to kill the accord, rather they were attempting to make improvements to it. Bourassa then called an election for September, claiming that he required a mandate for his stance on Meech Lake- By this point three things were happening: there was a clear polarization between the pro- and anti-Meech forces; neither side appeared to have a clear understanding of the position or intentions of the other aiong with a tendency to misread the real intentions of the other side; and the rhetoric around the debate was becoming more extreme and apocalyptic."

The committees in both Manitoba and New Brunswick reported in the fall of 1989. The Manitoba report was unanimously supported by al1 three parties, but only because it was the sum total of the objections to Meech Lake submitted by each party.

The procedure used by the Manitoba committee also ignored the need to ensure that these changes would be acceptable to Canadians outside of Manitoba. Al1 three parties were playing to their own constituencies. The Manitoba report had been rooted in public opinion. Thus, it reflected the fact that the large majority of those who appeared before the committee favoured changing the accord before it was passed.45 A week pnor to the release of the Manitoba report, Clyde Wells made public his list of objections to the accord as stated in a ten-page letter to the Prime Mnister. Wells seemed to find flaws with every aspect of the accord." At the same time the New Brunswick report took a much more measured and moderate approach in its conclusions. The changes it proposed were much more Iimited and circumscnbed than those of Manitoba and Newfoundland.

The November 1989 FMC was a disaster. Wells had indicated on the eve of the convention that he was going to proceed with the motion to rescind

Newfoundiand's approval for the accord. After some persuading, Wells agreed only to

" Ibid, 174. '' Kathy Brock, A Mandate Fulfilled: Constitutional Reform and the Manitoba Task Force on Meech Lake (Winnipeg: University of Manitoba Outreach Funâ, 1990): 123. J6 Monahan, Meech Lake, 1 78. postpone the withdrawal. The highlight of the meeting was a twelve-minute exchange between Wells and Mulroney in which Mulroney effectively conceded that the issue was how to respond to the unreasonable demands of a particular province. Wells was effective in changing the debate to his terrns.

With only three months before the ratification deadline McKenna finally introduced two resolutions into the New Brunswick legislature. One was the Meech lake resolution while the other was a companion resolution containing a number of add-ons to the accord. His demands were modest:

O Recognition of the right of the federal government to promote linguistic dudity across the country; o A guarantee that women's rights couid not be ovemdden by the distinct society clause; o That the Meral government would have the right to create new provinces without being required to obtain the consent of the existing provinces.

Nonetheless, these changes represented tinkering. McKenna had accepted the key elements of the accord. Prime Minister Mulroney, despite having stated that the accord was a seamless web, decided to refer the New Brunswick companion resolution to a special cornmittee of the House of Commons. The Quebec government under Bourassa responded by supporting a resolution introduced by the Parti Quebecois, led by Jacques Parizeau, rejecting the changes suggested in the New Brunswick resolution.

As this was going on, Clyde Wells introduced his resolution to rescind the support of Newfoundland for the accord. On 6 April 1990, Wells forced the motion to a vote, and the vote carried. Newfoundland had rescinded its support for the accord. The

Charest Cornmittee was also beginning its hearings at the same time, with McKenna as its first witness. In contrast to the 1987 cornmittee, which had heard largely fiorn opponents of the accord, the Charest committee heard largely from supporters of the accord. In its final report the Charest wmmittee accepted the amendments proposed by

McKenn- and then it came up with a list of additional amendments of its own. This list included an amendment specieing that the linguistic dualityldistinct society clause did not impair the effectiveness of the Charter, and the suggestion of the Manitoba Task

Force that a "Canada Clause" be added to include recognition for Aboriginal peoples and of the multicultural dimension of Canada's heritage." For his part, Premier Filmon applauded the efforts of the Charest Cornmittee, but insisted that its proposals must come into effect at the same time as Meech Lake. As expected, Bourassa quickly rejected the proposals of the committee.

The next step for the federal government was to release its "State of Play on a Companion Resolution to the Meech Lake Accord" to each of the premiers visited by Senator Murray over the Victoria Day weekend 1990.'~This listed included premiers

FiIrnon, Vander Zalm, Wells, McKenna, and Bourassa. The document sought to identiw areas of possible consensus. The federal govemment proposed a clarification of the relationship between the distinct society clause and Chmer stating that the distinct society clause did not override or deny rights in the Charter, nor did it confer any legislative powers on either the provinces or the federal government. In response to the

Canada Clause idea, the federal govemment proposed to entrench a preamble recognizing a variety of fundamental characteristics of Canada, including the nghts of Aboriginal peoples, the distinct identity of Quebec, the cultural diversity of Canadian society, the

" Ibid, 193. Ibid, 20 1. principle of equaiity of the provinces, and a commitment to the well-being of al1

Canadians in whatever part of Canadz they live. A third issue, Senate reform, was also involved. The federal document adopted the Charest Cornittee recornrnendation that the requirement of unanimous consent for Senate reform be relaxed at some point in the fiiture. Upon the completion of his tour, Murray realized that none of his proposals on these issues was capable of attracting consensus.

The federal government then handed out a revised "State of Play" document dropping the less restrictive amending formula on Senate reform. At the same time, WelIs was circulating his own counter-proposais. Wells was now willing to accept the distinct society clause with a clarification on its relationship with the Charter. A weekend of one-on-one meetings between the Prime Minister and the premiers did not bhgthe various sides any closer together. Senator Murray then flew to St. John's along with Roger Tassé, the former deputy attorney general of Canada, and met for three hours with Premier Wells. AAer this meeting both sides indicated that there had been some progress. However, there was confùsion on the part of Premier Wells as to the position of Quebec on the proposals in the "State of Play" document. He did not have any means of veriFying for himself the position of the Quebec govemment, in part due to his decision to hire Toronto lawyer Deborah Coyne as his senior constitutional advisor. She had an extreme anti-Meech stance and thus provided little favourable information and interpretation to Wells.

In early June 1990, the premiers gathered in Ottawa with the Prime

Minister. From the start pressure was applied to both Filmon and Wells to support the accord, but both premiers rejected the economic and political consequences stated by the Prime Minister at the outset of the conference and echoed by the pro-Meech premiers.

Filmon and Wells quickly became upset that none of their concems were being dealt with, and they were being asked to ratify the accord unchangeci. No real negotiations took place until Premier Joe Ghiz of Prince Edward Island brought forth a proposal dealing wit h the unanimity requirement for Senate refonn. Wells and Filmon continued to insist on the Canada Clause, but Bourassa remained adamant that there could be no clarification of the distinct society clause. Bourassa had initially indicated he might be willing to accept the proposal of Premier Ghiz, but later had second thoughts about the proposal. A key event in the week of meetings was a meeting involving the delegations fiom Newfoundland, Quebec, Manitoba, and Ontario. These discussions surrounded the wording of the distinct society clause. At the same time, the First Ministers were discussing the Canada Clause. Quebec was still insisting that this be part of a second round after the ratification of Meech Lake, but Manitoba and Newfoundland both wanted agreement on this clause before Meech was ratified-

A meeting between Wells, Filmon, and the two Manitoba opposition leaders, Sharon Carstairs and Gary Doer, convened and heard fiom various lawyers regarding the weight that would be attached to the Canada Clause if it were placed in the preamble as opposed to the main body of the constitution. In the end, both Manitoba and

Newfoundland agreed that the clause rnust be place in the main body of the constitution.

Without any warning Bourassa had his staff issue a press release that stated that he would not participate in any fùrther discussions on the distinct society clause. Nonetheless, the conference continued without the Quebec premier. Mer a flurry of last minute wording and detailed changes to the distinct society clause and Senate reform respective1y, the premiers al1 agreed to final conference communiqué, which committed Manitoba and

Newfoundland to make their best efforts to pass the accord before the 23 June 1990 deadline and al1 govemments to a companion resolution enacting a series of add-ons to the a~cord.''~In Manitoba, unanimous consent of the legislature was required to provide for an expedited process of public hearings on the changes. Al1 theparty leaders were on side, but Aboriginal MLA Elijah Harper retùsed his consent. In Newfoundland, Wells simply retùsed to hold a vote on the accord. Meech Lake was dead.

As Jennifer Smith points out, part of the problem with Meech Lake was an abandonment of neutrality in terrns of relations between those entities that received recognition in the accord. Evaluative language such as that found in the distinct society clause may have been seen as a counterweight to the Charter in Quebec, but inevitably created a constitutional struggle for status.

Such language forces representatives of various groups to vie for similar constitutional accolades in an undignified and dangerous competition that is as far fiom the precepts of constitutionalism as it is possible to imagine. People looking for constitutional remedies who resort to the use of such accolades - this group is "distinct," that group is "first" - seem not to know that these claims are open invitations to group stmggles, and do not belong in a constitutional order designed both to establish govemments and place limits on their powers in the name of individual freed~m.'~

In large masure this outcome can be traced back to the aîmosphere of trade-offs that surrounded the initial negotiation and remained up until the defeat of the accord. The demands were originally those of Quebec, but eventually demands of the other provinces and different groups began to make there way into the negotiations. There never really was any compromise; rather, there was only an exchange of demands.

49 lbid, 23 1. 'O Smith, 'nie Unsolvable Constitutional Crisis," 74. The Charlottetown Accord

Within months of the defeat of Meech Lake a new round of constitutional processes began. This round became known as the Canada Round as a reflection of how it was different tiom Meech Lake, which many considered the Quebec Round. In this round the stages of the Meech round were reversed. Public discussion and consultation on the constitution preceded the negotiation of an agreement. In Quebec, in part as a reaction to the failure of Meech Lake, public discussion had a huge head start. The first fomm in Quebec was the Constitutional Committee of the Quebec Liberal Party, better known as the Allaire Committee afier its chairperson Jean Allaire. This cornmittee developed audiohide0 presentations of the hl1 range of constitutional alternatives and took these to meetings in every constituency in the province, as well as meetings with business and union leaders and acadernic experts. A second and broader fomm was the

Belanger-Carnpeau Commission established by the Quebec National Assembly (QNA) in

September 1990. This was the "estates generai" agreed to by both Bourassa and

Parizeau. The commission heard fiom over six hundred individuals and groups who favoured virtually every possible constitutional viewpoint. However, the majority favoured either a high degree of autonomy for Quebec within a restnictured federation or outright independence.'' For neither forum was there any reference to Canada in their mandates. Their aims were to define the space in which Quebec could filfiil its destiny.

The business representatives on the boards of these forums came to have much more influence than any Quebec business class of the past ever had. The reports of both forums reflected this in their attacks on the interventionist, welfare state. For the Allaire

Committee the answer was political autonomy for Quebec within a strengthened

Canadian economic union. According to the Maire Report this autonomy meant giving the Quebec government ttll control over al1 aspects of social policy and economic development. In fact, the report listeci twenty-two policy areas to be brought under exclusive Quebec authority. However, only one of these areas, unemployment insurance, was exclusively within the jurisdiction of the federal government. The others were either exclusively or primarily under provincial jurisdiction. Thus, this agenda was less homfic than it was initially de~cnbed.'~

Interestingly, the Allaire Committee did not couch its recommendations in the distinct and histonc culture of Quebec rationale; rather it focused on globalization and enabling Quebec to participate effectively in an interdependent world. The Allaire

Report also provided only a sketchy pichire of how the Rest of Canada (ROC) would function under its proposed constitutional restnicturing, and it did not give a great deal of thought to central institutions. The Quebec Liberal Party held a convention in March

1991 to debate the Allaire Report. It was an event that was commandeered by the young

Quebec Liberals, who helped to defeat nearly al1 of the fifty-six proposed amendments to the AlIaire Report. Most of these amendments had been designed to sofien its sovereigntist tone.

A coupIe of weeks afier the Liberal convention, the Belanger-Campeau

Commission released its report, but it was somewhat anti-climatic. It could not agree on

5 1 Russell, Constitutional Odvssev, 158. '' Ibid, 159. the substance of the constitutional future of Quebec, but this was hardly unexpected given the political mixture of federalists and outright separatists on the commission. In May

199 1 the QNA enacted Bill 150, which committed the Quebec government to hold a referendum on sovereignty between 8 and 22 Iune 1992 or 12 and 28 October 1992. Two legislative cornmittees were also stmck The first examined al1 matten relating to the accession of Quebec to full sovereignty. The second exarnined any new offer of a new constitutional partnership made by the Canadian governrnent.

Quebec had laid down the gauntlet to the ROC.^^ Near the end of 1990 the federal government took "two seemingly uncoordinated and unplanned ~te~s."~~First it launched "A Citizens' Forum on Canada's Future," better known as the Spicer

Commission afler its chairperson Keith Spicer. This forum was to be an opportunity for al1 Canadians to speak out on the future of their country. The second initiative was a parliamenta? cornmittee to review the constitutional amending process, known as the

Beaudoin-Edwards Cornmittee after its CO-chairs,Senator Gerald Beaudoin and MP 3im

Edwards.

The Spicer Commission would hear from 400,000 Canadians in al]. However, participation by Quebeckers and Aboriginals was very low. For the politically active citizens in the ROC the forum was a cathartic exercise. The commissioners called it "a therapeutic exercise in airing grievance~."~'These grievances were primarily about the inordinate arnount of time their political leaders were spending on the Constitution at the expense of other issues such as the economy and the environment. Most participants

'3 Ibid, 153. " Ibid. 5s Canada, Citizens' Forum on Canada's Future (Ottawa: Minister of Supply and Services, 1991): 16. were willing to accommodate Quebec and go even fùrther to accommodate Aboriginal peoples, but there was a clear limit to how far they would in terms of accomrnodating

Quebec.

By cornparison, the Beaudoin-Edwards Cornmittee was much more low-key.

Beaudoin-Edwards dealt with the amending formula, which was a basic demand of the

Allaire Report in terms of Quebec maintaining a veto, by recommending a regional veto system much the same as that put forward in the 1971 Victoria Charter. Quebec would get its veto, but only if the ROC agreed to abandon the principle of equality of the provinces. 56 The committee also recommended that the federal govemmem pass legislation that would ailow it, at its discretion, to hold a consultative referendurn on a constitutional proposal. The committee also turned down the idea of creating a constituent assembly to broaden public participation; instead, it recommended that yet another parliamentary committee be stnick to hold public hearings on any constitutional proposal.

Meanwhile, the public forums and committees of the provinces, temtones, and

Aboriginal organizations were beginning to take shape:

Manitoba, Ontario, Prince Edward Island, and the two temtories used cornmittees of elected legislators; Alberta and British Columbia used executive task forces followed by legislative committees; New Brunswick and Newfoundland used committees that were mixture of legislators and citizens; Nova Scotia and Saskatchewan established committees compriseci entirely of non- iegis~ators.s7

56 Russell, Constitutional Odvssev, 166. 57 Ibid, 168; see also New Brunswick, New Brunswick Commission on Canadian Federalism, Re~ort(Fredericton, N.B.:The New Brunswick Commission on Canadian Federalism, 1992); Saskatchewan, Task Force on Saskatchewan's Future in Codederation, R-tt (Regina: Task Force on Saskatchewan's Future in Confederation, 1992); Nova Sda, Nova SuXia Advisory Joe Clark, the constitutional affairs minister, also established a parallel process for

Aboriginal peoples. The Assembly of First Nations (AFN - representing status Indians), the Native Council of Canada (NCC - representing non-status Indians), the Métis

National Council (MNC), and the Inuit Tapinsat of Canada (ITC) carrieci out intensive consultations with their peoples. However, reaching an accord with Aboriginal peoples on how to make their right to government by consent a reality would prove to be a di fficult process.

Aboriginal peoples are cornmitteci to a highly consensual forrn of decision making that does not dovetail easily with the more top-down, tightly scheduled procedures of non-Aboriginals. The first nations' assertion of their right to self-determination posed a formidable challenge to the daims of Quebec sovereigntists. With few exceptions, Aboriginal peoples in Quebec wish to enjoy their right to self-government within Canada - not within a sovereign ~uebec.'~

In the midst of al1 of this discussion the federal government released it constitutional proposals entitled Shapirlg Carlada 's Future Togerher in September 199 1.

This package was large and diffise. It çontained some twenty-eight recommendations.

The core of the proposals fell under eight headings: Canada clause, distinct society,

Charter changes, Aboriginal self-government, Senate reform, Supreme Court of Canada, economic union, and division of powers. The package included something for everyone.

The five demands of Quebec from Meech were included although some were diluted, and there were provisions for the decentraiization and retrenchment of federal authority- For

------Cornmittees on Constitutional Issues, Rmorts of the Nova Scda Advisory Cormnittees on Constitutional Issues (Haliiàx: Nova Scotia Advisory Cornmittees on Cmstihnional issues, 199 1); Ontario, Select Cornmittee on Ontario in Confederation, Final Report floronto: Select Cornmietee on Ontario in Confederation, 1992). '* Ibid, 170. Aboriginals, the right to self-government was recognized, but not as inherent. And, it would be inoperative in law for up to ten years. There was also Senate refom to satisfL a key grievance of the western provinces, although it was far fiom the Triple4 model.

There was still a long way to go for this package, and it would first go to a joint parliamentary cornmittee chaired initially by Senator Claude Castonguay and Manitoba

MP Dorothy Dobbie, and later by Beaudoin and Dobbie. Mer being suspended in

Novernber 1 99 1 over interna1 squabbling and awful logistics, the Beaudoin-Dobbie

Committee resumed its hearings in early 1992 and was supplemented by five regional conferences, each in a different region and on a different component of the federal package. By lanuary 1992 most of the provinces had completed their consultations, and there were indications that the conditions for consensus were much improved.

However, the initial conference in Halifax made it obvious that Quebec and the ROC could not agree on the principle of provincial equality. Asymmetrical federalism became a widely discussed option. The Calgary conference favoured a strong elected Senate, while the Montreal conference supported fieer trade within Canada but with greater protection for social programs. The result was a 125-page report fiom the

Beaudoin-Dobbie Committee entitled A Retwwed Carlada. It recommended changes in every component of the package put forward by the federal government. These recommendations followed the contours of the discussions in the five public conferences.

The next step in the Canada Round was the multilateral negotiations. This would include the nine provinces (Quebec refiised to participate until an offer was placed on the table), two temtories, four Aboriginal organizations, and the fderal govemment.

A fiflh Aboriginal organization, the Native Women's Association of Canada (NWAC), fought to gain a place in the negotiations and represent Aboriginal women in the constitutional process. There were several key elements brought to the negotiations by each participant: a The federal govemment participated with little sense of commitment to the process or a clear agenda of its own; P Ontario premier Bob Rae abandoned the traditional role of honest broker played by that province and demanded Aboriginal self-government and a social charter; a Manitoba, Saskatchewan, Alberta, and Newfoundland were al1 strongly comrnitted to a Triple-E Senate; O The Prime Minister and federal cabinet had been hinting at a national refêrendum to end the impasse.5g

The agenda for the multilateral process was set by the Beaudoin-Dobbie proposais. By early June 199 1 these meetings had reached agreement on seven issues: the division of powers, the social and economic union, Aboriginal self-government, a

Canada clause, recognition of Quebec as a distinct society, FMCs, and the Supreme Court of Canada. However, there was not even a hint of asy rnmetrical federalism. Anything given to Quebec in terms of the division of powers, including cultural matters, was to be given to al1 the provinces. There were also provisions allowing the provinces to opt out of federal spending programs in areas of provincial jurisdiction without fiscal penalty and a commitment by the federal govemment to negotiate bilateral immigration agreements with the provinces. Labour-market training and culture were also to be given to the provinces. The basic approach to the negotiations was "make-a-deal" federalism: provincial jurisdiction in these fields would be afirmed and federal withdrawal fiom

59 Ibid, 196. them wouid be them would be facilitated, wherever requested, by agreements providing fiscal compensation."

The provinces and Aboriginal organizations were certainly the dominant players. The federal government appeared to be having its flesh picked away from its bones. Nonetheless, two aspects of Aboriginal peoples' issues were not completely resolved: the questions of how the Charter should apply to the Aboriginal order of -government and the fiscal basis of these governments. By early August Bourassa had abandoned his flirtation with sovereignty and came to an agreement with the other premiers and the federal govenunent on the

Pearson Accord, and agreed to an equal Senate if Quebec was guaranteed 25% of the seats in the House of Commons. After its signing at Charlottetown it became known as the Charlottetown Accord. It was clear at the signing of the Accord that it would be placed before a Canada-wide referendum because Alberta and British Columbia were bound to have a referendum on any constitutional proposal before their legislatures could consider it and Quebec was still bound to have a referendum by 26 October 1992.

In the referendum campaign, selling a package that had "something for everyone" required two qualitatively different daims: "carrots" and a stick^."^' The general arguments were the sticks: al1 Canadians would suffer economically and politically should the Yes side lose. Specific arguments were the carrots, and there were different carrots to either win over or molliffy different segments. Each section would be

Ibid, 198. Richard Johnston, André Blais, Elisabeth Gidengil, Neil Nevitte, The Challenge of Direct Democracv The 1992 Canadian Referendum (Momreal and Kingston, On. : McGill-Queen 's University Press, 1 996): 75. able to identify its own gain within the accord and see itself as a ~inner.~'The No side, while lacking the organizational coherence of the Yes side, presented an alternative set of persuasive messages to derail the logic and disconnect the links in the chain of reasoning sewed up by the Yes side. In some cases, in order to shore support with one's own province politicians would play themselves as winners as opposed to another province or croup, which would be portrayed as losers. Moe Sihota, the constitutional affairs G. minister in British Columbia, attempted to shore up the image of his own government by claiming that Bourassa had lost at Charlottetown. This received wide play within Quebec by the No ide.^^ Moreover, many Yes side leaders, including Robert Bourassa, could not control the debate over the consequences of voting No.

Outside of Quebec, Mohawk leaders rejected the accord before it had taken its final shape. Organized labour opposed the accord over the economic union proposal, and the reduced federal role in social policy. However, the Canadian Labour

Congress (CLC) leader Bob White eventually gave the Accord a "cautious end~rsernent.'~~The factor that brought this endorsement about was the social charter, the one aspect of the accord that labour liked. Meanwhile, the women's movement fought a rearguard action in the campaign to defend the Charter and other kindred values.

The National Action Cornmittee on the Status of Women (NAC) rejected the Accord expressing much concem about the Canada clause. The concern was that groups not identified in the clause would be subordinated in their enjoyment of rights to groups that did gain rnenti~n.~'The National Citizens Coalition (NCC) also came out in opposition

62 Ibid. '' Ibid, 63. Ibid, 64. '' Ibid, 66. to the accord because it opposed the social charter. In ternis of political parties, both the

Reform Party led by Preston Manning and the Bloc Quebecois led by Lucien Bouchard opposed the accord in their particular regions. Reform, with its sectionalist appeal, opposed the Accord because it was largely undefined and uncertain. To get this point across Reform used an astute double entendre, 'Xnow a ore.'^

In early October, less than a month before the referendum, the Aboriginal coalition as represented by the four organizations began to corne apart. The AFN was particulariy central to this, as it was its affiliated organizations that came out opposed to the Accord. The Treaty 6 and 7 bands fiom Alberta, the Union of B.C. Indian C hiefs, and the Assembly of Manitoba Chiefs al1 came out against the Accord within a two-week period.

As has been well documented elsewhere, the political leaders read the referendum results as a ctear defeat of the Accord. Only in Newfoundland, New

Brunswick, Prince Edward Island, and Ontario did the Accord receive majority support.

In Ontario that support was extremely thin. It was only close because of a 6û% support rate in hfetropolitan Toronto. Nationally, 54% of voters rejected the Accord. The

Charlometown Accord was dead, and so too perhaps was the mega-constitutional politics of the previous decade and a half.

Summary

Meech Lake and Charlottetown were proof that executive federal ism could not achieve mega-constitutional change, perhaps even proof that it never could.

Among participants, few if any of Dupré's "trust ties" existed, and this became blatantly

ibid, 68. obvious with the intervention of interest groups representing those groups recognized under the Charter. Among the premiers the atmosphere that prevailed was one of exchanging bargaining chips, "you give me this and 1 will give you that." There was little or no low-level discussion among oficials to determine what was best and what was workable prior to the trading sessions. Most participants spoke a different language fiom each other, usually in terms of ideological or philosophical stances on issues, despite the most common background of the premiers being the legal profession. However, as

Dupré has pointed out, the adversarial nature of the Iegal profession probably could not have lead to other than the outcornes of both Meech and Charlottetown. As opposed to dealing with a particular premier on a particular issue, the general rule was to plan a strategy to get his signature on the agreement with little or nothing in the way of concessions. Wrapping Meech in the "seamless web" argument lefi few other options other than to use whatever tactics necessary to get agreement with no changes.

By cornparison, Charlottetown went in the reverse order of Meech Lake.

However, it had its downfall in its "something for everyone" approach. Almost inherent in the "something for everyone" argument was its opposite. In other words, because there was something for everyone, there was something for everyone to dislike. The inclusion of the Aboriginal organizations in the Charlottetown negotiation phase was a landrnark for Aboriginal peoples and something that will not be able to be ignored in future discussions. However, groups such as Aboriginal organizations and other so- called Charter groups were new players and hostile to government monopolization of the amending process. They saw public participation as no longer an issue of procedurai choice, but rather of obligatory constitutional rn~rality~~

There was iittle doubt that mega-constitutional politics was dead. The real question was would it take executive federalism with it? Or was this simply Dupré's constitutional mode1 that was proven unworkable. Some have suggested that any fùture executive federal processes would require the Canadian leadership to be attentive to the concerns voiced by various societal groups that perceived their rights to be afTected?

Others have argued that the argument that constitutions are about people rather than governments is a hoax. The lesson to be learnt tiom Charlottetown is not that a more inclusive process is required, rather it is the exact opposite. The idea of talking about people in a constitutional document in evaluative language only causes divisiveness and depends on the play of political forces and their leverage at the time. It also creates a false dichotomy because there is no way around the fact that the constitutions of popular govemments are most importantly about the establishment of govemment institutions, the allocation of powers among them, and the decision-making desthat they use. 'The simple yet cntical connection to the people is the fact that in one way or another the institutions are designed to represent them.'*9

67 Alan C. Cairns, Charter versus Federalism The Dilemmas of Constitutional Reform (Montreal and Kingston, On. : McGill-Queen's University Press, 1992): 1 16. 68 Brock, "The End of Executive Federalism" 105. 69 Smith, 'The Unsolvable Constitutional Crisis," 86. After the deaths of the Meech Lake and Charlottetown Accords, the federal govemment withdrew from mega-constitutional discussions. It began to focus on particular areas of the Meech Lake and Charlottetown packages. The first ara, immigration, was one that had been dealt with in an intergovernmental context since

Confederation, and since the late 1970s had become the subject of greater provincial participation. Therefore, it was only natural that it becarne the first post-Charlottetown issue on the intergovernmental agenda. The federal government picked up where it had

Ieft off in 1984-85 by reaching the Canada-Quebec Accord bilaterally with the province of Quebec. As with previous immigration agreements, the deal was negotiated primady by the ministers and the offtcials from the affecteci departments within both the federal and provincial govemments. A shift in executive federalism that had begun in emest in

1978 had resurfaced. The focus would be on smaller items, involve the first ministers less frequently, and ofien be conducted bilaterally between the federal govemrnent and one provincial government or groups of three or four provincial governments. Rather than having an agreement signed by al1 provinces and then allowing one or more to opt out1of said agreement, this new approach simply allows those provinces that, for whatever reason do not wish to have increased control over a particular field, to not sign an agreement. This chapter will focus on the immigration agreements, and subsequent chapters will focus on other intergovernrnental agreements reached through this more pragmatic approach to executive federalism, including the Labour Market Development

' Watîs, Cornvaring Federal Systems in the 1990s, 6 1.

86 Agreements (LMDAs), the Social Union, the Agreement on Interna1 Trade (AIT),and the

Harrnonized Sales Tax (HST).

At first glance this new approach looks a lot like the approach to executive federalism taken in the 1950s and early-to-mid-1960s. However, this new approach has been much more open, and, in fact, in many cases it bas been conducive to asymmetry with respect to the powers and control over various areas wielded by each province.

Outside Quebec, a formal asymmetrical division would never fly. The equality of provinces doctrine had been too well ingrained in the ROC, even though, as has been pointed out by others, an asymmetrical division or distribution of powers would not necessarily deny the ROC a central govemment effective for national purposes, while at the same time recognizing the special national requirements of~uebec.' Through the asymmetry that is softly peddled in this new approach to executive federalism, de facto asymmetry and de facto special recognition for Quebec can both be achieved without altering the constitution.

Currently, Quebec is the only province with immigration legislation and a provincial immigration department. However, seven other provinces (Alberta,

Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, and recentIy Manitoba) also have immigration agreements with the federal government.

None of these agreements are nearly as extensive as either the Cullen-Couture Agreement of 1978 or the Canada-Quebec Accord of 1991. The pnmary reasons that the agreements signed between the Meral government and Quebec are much more extensive centre around the aspirations of the Quebec govemment and its people. For Quebec control over immigration is seen as a means by which the francophone society of the province cm be maintained and potentially expanded in the face of declining birth rates and other demographic changes. For the other provinces, which signed less detailed agreements afler Quebec, increased control over immigration was seen mostly through its impact on the labour market. Ontario and British Columbia, as of January 1999, had yet to sign immigration agreements with the federal government, yet they receive more immigrants annually than any of the other provinces including Quebec. Their primary concern has

Iargely remained over who is going to cover the costs of the education and hospitalization of immigrants during their first twelve months in Canada.

For Quebec, control over immigration has become a part of the great sovereigntist project. Quebec wants to play a role in selecting the type and number of immigrants coming into Quebec and managing and determining the content of settlement programs for these immigrants. Control over immigration became one of the five key demands put fonh by Qiiebec premier Robefi Bourassa in order for the government of

Quebec to sign any amendment to the Constitutior~Act, 1982. The Meech Lake constitutional accord attempted to give the provinces, again especially Quebec, greater influence over immigration. Thus, constitutional tactics became a means by which

Quebec could gain greater control over immigration. However, immigration would be one area in which attempts to appease Quebec would be more successfbl outside of the constitutional realm. The two previously mentioned agreements on immigration are evidence of such success.

Reg WhÏtaker, 'The hgThat Never Barked: Who Killed Asymmetrical Federalism?" in me Charlottetown Accord, the Referendum and the Future of Canada, eds. Kenneth McRoberts and Patrick Monahan (Toronto: University of Toronto Press, 1993): 1 13, Mer the Second WorId War, the Department of Citizenship and

Immigration was created. This was followed by a revival of provincial interest in immigration with several provinces reopening European offices and devoting attention to the settlement and adaptation of immigrants. In this revival, Quebec was an exception.

The Duplessis government was isolationist and xenophobic and consequently had no interest in receiving immigrants, much less promoting immigration and immigration services. However, the new federal department was created with a mandate without regard for the legitimate constitutional provincial interests in immigration. The post-war federal government was conditioned to acting as it saw fit with respect to the national interest and perceived immigration as a national program and, therefore, assumed hl1 responsibility for the recmitment, selection, and admission of immigrants.' However, the federal cabinet did direct this new department to develop consultative arrangements with the provinces. The department interpreted this as applying only to immigrant settlernent in which provincial CO-operationwas essential. The federal govenment also signed a language training agreement with al1 the provinces, except Quebec, in 1953.

Welfare assistance and hospitalization of immigrants became an important issue for immigrants and the provinces in the days pior to Medicare. The federal Immigration

Branch moved to establish joint-s haring arrangements with the provinces in this area.

Immigration in Canada has been inexorabty tied to the labour market. Once the Canadian economy began to recover fiom the recession of the late 1950s the federal government merged the Immigration Branch with the National Employment Service and created the Department of Manpower and Immigration in 1966. The link between

3 R.A. Vineberg, "Federal-Provincial Relations in Canadian Immigration," Canadian Public Administration 30:2 (Surnmer 1987): 305. immigration and the labour market was explicitly acknowledged in the Immigratiotl

Witr Paper of the same year. The provinces were also beginning to awaken and realize

the relationship between immigration and their provincial economies. Manitoba,

Saskatchewan, and Alberta al1 set up small immigration departments. Quebec did the

same. This meant that five provinces, including Ontario, had their own units dealing with

immigration. tt would be Quebec where the provincial immigration unit would most

hlly develop. With the political, social, economic, and intellectual ferment in Quebec in

the 1 960s the govemment of Jean Lesage realized that skilled immigrants could

contribute to the developrnent of the provincial economy and that it might be easier to

integrate non-North Arnerican migrants into the fbncophone rnaj~rit~.~The first

Immigration Service in Quebec was attached to the Ministry of Cultural Affairs because

in the past immigration had been viewed in Quebec as a cultural invasion capable of

harming the linguistic balance of the province.

However, this view was gradua11 y changing. '%lity entrepreneurs" in

Quebec such as Joseph-Giuseppe Turi began to express this in biefs to the Minister of

Cultural AfEairs in Quebec as early as 1961, and before the parliamentary committee on

the Constitution in 1964. Turi deplored the indifferent and occasionally hostile behaviour

of Quebec towards immigrants.' Turi claimed that this behaviour was resulting in the

Anglicization of immigrants and the eventual balkanization of Quebec. He suggeaed

that Quebec could act to rectify this situation without restructuring the Canadian system.

These ideas caught the attention of Quebec political leaders Maurice Bellemare, Jean-

' lbid, 307. Martin Paquet, Toward a Quebec Ministrv of Irnmimation. 1945 to 1968 (Ot?awa: The Canadian Historical Association, 1997), 9. Jacques Bertrand, Paul Gerin-Lajoie, and Rene Levesque who would al1 draw on them in

1965.

In 1968, legislation was passed in Quebec to establish the Immigration

Service as a fùll-fledged department of government. This involved the CO-operation of the federal government, which agreed to ailow Quebec to place agents abroad to counsel prospective immigrants. The mode1 for the Quebec operation was Ontario's Selective

Placement Service, but the Quebec service quickly becarne more extensive than that of

Ontario. Quebec placed agents in Canzdian embassies in Rome, Athens, and Beirut, and in the Délégation générale du Quebec in Paris. It also established a faciiity to offer language training and adaptation services to immigrants. As part of this move, in 1969,

Quebec agreed to the federal-provincial language training agreement, which the other provinces had previously agreed to. The next year, the Centres d'orientation et de

Formation des immigrants (COFI), which had been established by the Quebec education departrnent, were taken over by the Quebec immigration departrnent.

It is also worth noting that Manitoba awoke to immigration at about the same time as Quebec. The Conservative govemments in Manitoba in the 1960s pushed its daim to a larger share of the total immigration flow. They stressed the need to use immigration as a tml for Canadian economic development and the need for balanced regional go~th.~The provincial minister of industry and commerce contended that the uneven post-war distribution of immigrants had accentuated and aggravated population

" Freda Hawkins, Canada and Immieration Public Poli- and Public Concem (Montreal & Kingston: McGill-Queen's University Press, 1988), 180. She cites the Manitoba Minister of hdustry and Commerce in 1967: "Had Manitoba, fôr example, received a progortionate share of immigrants, it would have had an extra 10,000 immigrants, more than haif again than the number actually received. A demand has existe.and still exists for certain labour requirements which and development trends and labour force shortages rather than alleviating them. This interest came to a halt with the election of the NDP to power in Manitoba in 1969. The new government did not share the interest in immigration matters of its predecessor.

By cornparison, British Columbia has demonstrated extremely little, if any interest in immigration matters. Politicians and officials in British Columbia have claimed to be satisfied with their share of the annual immigration flow.' This is due, at least in part, to the considerable adfavourable flows of interna1 migration that supplement immigration to British Columbia. Traditionally, British Columbia has been inactive in immigration overseas. It receives a fair share of the immigration flow without any special effort.' British Columbia also spends little or no money in promotion and recruitment of immigrants.

Despite the fact that Ontario receives more than half of the immigrants to

Canada, it has continued to view immigration rnatters, particularly immigration levels and immigrant select ion, to be the responsibility of the federal govemment. Moreover, half of these immigrants settle in the Toronto Not surprisingly most of the effort made by Ontario in regards to immigration have been in the area of recruitment. This has especially been the case since John Robarts came to power in 196 1. Ontario's immigration recruitment, done through its Selective Placement Service, has largely been to meet labour markets needs and concerns. Ontario has concerned itself, in dealing with immigration, with the important contribution that immigration can make to its labour

could be filled by immigration, but fàilure to use immigration as a &vice to me& these needs is impeding our growth, causing fbrther regional imbalance." ' Ibid, 64. ' Ibid, 192-193- ' Ibid, 64. 'O Ibid, 202. force. The position of Ontario regarding immigration has not changed greatly. With the exception of a few cost-shaiing agreements with ûttawa wncerning language and education training and hospitalization costs for new immigrants Ontario had not viewed an immigration agreement with Ottawa as a necessity.

In 1973, the Minister of Manpower and Immigration Robert Andras announced a full-scale review of Canadian immigration policy. On this the government was determined to consult widely and encourage the provinces to participate. The federal government was determined to involve the provinces in immigration to a greater degree than ever before.

Of the several areas of immigration management where the formation of Canadian policy stands to benefit in fùture fiorn intensified federal-provincial CO-operation, two deserve special emphasis. The first involves manpower planning. The selection of those immigrants who respond most effectively to the genuine requirements of the Canadian economy depends heavily on detailed and continuously up-dated information about the state ofjob markets in al1 parts of the country. h is important if immigration's economic purposes are to be fülfilled that federal policy take appropriately into account manpower planning objectives at the provincial level .... Another field where the Federal Government is now endeavouring to work in closer co-operation with the provinces relates to the provision of those services that immigrants may require to help them solve problems they encounter in adjusting to life in Canada. While here the Federal Govemrnent recognizes its responsibility to lead and CO-ordinate actively, an adequate program of immigrant adjustment seMces calls for support tiom al1 levels of government . .. . Immigration policy development must take place within a fiamework that embraces longer-term demographic, econornic, cultural, and social objectives. It follows that the value of regular exchanges between Ottawa and provincial govemments is not limited to matters that immediately concem effective program management. In the hre,national policy formation couid be enriched through consultation between the two levels of govemment, which approached immigration in the wider context of al1 those Canadian goals to which immigration's contribution is relevant."

11 Canada. Department of Manpower and Immigration, Immimation Policv Persoedives, A report of the Canadian immigration and population shidy (ûüawa: Information Canada, 1974), 57, 58. Initial reaction fiom the provinces was mixed at best. The two most notable exceptions were Quebec, whose demographic and political objectives welcomed increased provincial involvement in immigration, and Alberta, where a planning and development exercise involving population, resources, and land use had begun. The ot her provinces were unprepared, possessing neit her the time nor the staff to work out preferences in matters of population size, rate of growth, and linguistic structure. They had too many other problems of their own to deal with. British Columbia, Manitoba, and

Saskatchewan also welcomed the initiative of the federal governrnent in trying to establish closer consultation with the provinces in immigration planning. l2

By cornparison, New Brunswick was hostile to involvement in immigration or population issues. Immigration was sirnply not on their agenda. They had too many other pressing problems to deal with. They also felt immigration was tm threatening, in the sense that it might involve them in commitments they did not want to undertake.13

High unemployment in New Brunswick at the time, and the French-speaking community in that province that would be unlikely to welcome an influx of mainly English-speaking immigrants kept immigration of its agenda. Ontario was also cool to the idea of population guidelines, but Andras had felt that they might corne around later. This never rnaterialized. Faced with these responses fiom the provinces a new approach was attempted. The federal minister held bilateral and multilateral meetings with provincial oficials, but little progress was achieved. For the time being the federal government had to be content with modest input fiom the provinces,

'' Freda Hawkins, Cntical Yeats in Imminration Cana& and Australia Compared (Montreal & Kingston: McGill-Queen's Universrty Press, 199 1), 67. The Meral government, in 1973, set up a small task force within the department to prepare a Green Paper, which would become know as the Canadian

Immigration and Population Study (CIPS). Merthe Green Paper was tabled, a special joint committee of the Senate and the House of Commons was created. This committee spent four months in 1975 holding hearings across the country to gauge the public response to the Green Paper. The cornmittee made several specific recommendations in regards to federal-provincial co-operation. The committee recommended a permanent joint federal-provincial committee to co-ordinate the development and implementation of immigration policy, a provincial presence in immigration selection, collaboration on scrutinizing teaching institutions receiving foreign students and on fixing the numbers of foreign students accepted by eac h institution, and CO-operation on immigrant services. l4

The committee also took notice of the specia1 interest of Quebec in immigration in terms of the maintenance of the French-Canadian presence and recommended that the federal government, "should not refrain fiom any reasonable effort within the limits of its jurisdiction which could contribute to the realization of this objective." '-'

In November 1976, the federal governrnent tabled its new Immigration Bill

(C-24), which incorporated most of the recommendations of the cornmittee. The bill was passed in July 1977, but not proclaimed until April 1978, due to the need to prepare new immigration regulations and entirely revise instructions to immigration ofticers. This

'j Ibid, 68. 14 Canada. Special Joint Cornmittee of the Senate and of the House of Commons on Immigration Policy, Re~ortto Parliament (Ottawa: Supply and Services Cana&, 1975)- 18,62-63, cited in Vineberg, "Federal-Provincial Relations in Canadian Immigration," 309. " Ibid, 3 10. was proclaimed to be the beginning of a new era in federal-provincial relations in immigration. l6

For the first time, the objectives of Canadian immigration policy were articulated. The second of these objectives was "to enrich and strengthen the cultural and social fabnc of Canada, taking into account the federal and bilingual character of

Canada." " It also specified that the minister was to present to Parliament, after consultation with the provinces, a report speciQing the number of immigrants the federal govemment deems appropriate to admit and the manner in which demographic considerations have been taken into account in determining that number. This is the authority for the annual consultations that have taken place between the federal government and the provinces since 1978 and, which have included non-govemmental organizations since 1980.

The first round of such consultations on immigration levels occurred in early

1978. The Atlantic provinces were fairly satisfied with immigration levels and were inclined, as Nova Scotia had recornmended, to lave their determination to the federal government. Quebec was in the midst of studies to determine appropnate levels for immigration based on its priorities and objectives. Ontario refused to express an opinion, stating that it believed that immigration levels were a federal prerogative. This has largely rernained the position of Ontario. Of the western provinces, only Saskatchewan expressed a desired range for immigration levels while the other provinces responded in general ternis. These consultations with al1 of the provinces were conducted by the regional representatives of the Canada Employment and Immigration Commission

- - 16 Vineberg, "Federal-Provincial Relations in Canadian immigration," 3 10. " Cited in Ibid. located in each provincial capital, except Quebec, where the Joint Committee is under the

CO-chairmanshipof an assistant deputy minister fiom the immigration department in

Quebec. ''

Following the establishment of the Quebec Immigration Department, the federal govemment and Quebec CO-operated closely. This would lead to the first bilateral agreement on immigration with a provincial government. This first bilateral agreement actually predated the new Immigration Act. In May 197 1, the minister of manpower and i rnrnigration, Otto Lang, and the Quebec Mnister of immigration, François Cloutier, signed the Lang-Cloutier Agreement. It was designed to encourage an increase in the francophone content of immigration, to encourage francophone immigrants to settle in

Quebec, and to authorize Quebec to mach orientation officers to Canadian missions abroad. However, within Quebec, rnany nationalists criticized the agreement as underscoring the weakness of Quebec's immigration policy, if not the lack of an immigration policy.19 They also criticized the limited status commanded by the Quebec immigration rninistry within govermnent circles. Nonetheless, it was a first step towards fùlfilling the emerging view of Quebec political actors that the ideal immigrant was a tool for economic and national de~elo~rnent.~~

The Lang-Cloutier Agreement remained in effect for four years. Dunng this time the Quebec Immigration Service (QIS) established itself abroad and developed an expertise not available to the other provinces. The QIS also found that it received many applications from francophone officers of the federal Immigration Foreign Service, which lx Hawkins, Critical Years in Immigration, 246. 19 Jerome H. BIack and David Hagen, "Quebec Immigration Politics and Policy," in Quebec State and Society, ed. AlainG. Gagnon, 2d ed. (Scarborough, On.: Nelson Canada, 1993): 288. 20 Paquet, Toward a ûuhcMinistrv of Immi~uation,12. allowed it to be staffed with experienced professionals. In 1975, the Quebec government indicated that it wished to renegotiate this agreement and play a larger role in the selection process. In October 1975, the federal minister of manpower and immigration,

Robert Andras, and Quebec rninister of immigration Jean Bienvenue signed the Andras-

Bienvenue Agreement. This new deal provided Quebec with substantial input into final selection decisions without ceding the authonty to select immigrants.

After the election of the Parti Quebecois (PQ) in 1976, the Quebec govemment reviewed the Andras-Bienvenue Agreement, and requested a new agreement, which would give more authority to the province. The PQ wanted a more muscular approach taken in immigration-related issues, and has been recognized as having played a key role in the developrnent of the Quebec's immigration rninistry" In 1977, the federal government had passed its new Immigration Act, which authorized the minister of immigration to enter into immigration agreements with the provinces. The federal govemment wanted to be seen entering into such federal-provincial immigration agreements, and agreed to negotiate a new deal with ~uebec." The 1978 agreement became known as the Cullen-Couture Agreement after Bud Cullen, the federal minister of employment and immigration, and Jacques Couture, the Quebec minister of immigration. This agreement involved an obvious devolution of power fiom the federal government to the provincial government of Quebec. This appears to have been the intention, and it would have been in keeping with the attitude of the Trudeau governrnent prior to the Quebec referendum? Meanwhile, the Quebec government sought greater authority in al1 spheres related to cultural and social endeavours, especially in the area of

2 1 Black and Hagen, "Qwebec Immigration Politics and Policy," 290. 22 Vineberg, "Federal-Provincial Relations in Canadian immigration," 3 1 3. external affairs. This agreement resulted because the means of the two parties were compatible, aithough their objectives were contradictory. Ironically, by signing this agreement, the Parti Quebecois govemment could been seen to be participating in the virtues of the existing federal system.24 Even wit hout constitutionai change, much less sovereignty, essential needs of Quebec could be met through federal-provincial collaboration. This agreement had been in negotiation whiie the new Immigration Act was proceeding through Parliament.

The basics of the agreement were that the federal government and Quebec would CO-operatein areas relating to migration movements and dernography, and participate jointly in the selection of immigrants who want to settle either permanently or temporarily in Quebec. Section III, which deals with selection, is the heart of the

It allows for the selection of immigrants on a joint and equal basis, but according to separate set of criteria for Quebec and for Canada.

La sélection des ressortisants étrangers qui souhaitent s'établir en permanance au Quebec s'effectuers sur une base conjointe et paritaire, selon des critères canadiens et des critères québécois... . Le Canada ficera des critères de sélection fondessur l'aptitude personelle des requerants a s'établir avec succès au Canada, sur des variables d'ordre démographique et sur la situation du marche du travail au Canada.. .. Le Quebec fixera des critères de selection fondes sur L'aptitude personelle des requerants a s'établir avec succès au Quebec, sur des variables d'ordre hique et socio-cuturel, et sur la situation du marche du travail au Quebec.

Ibid, 3 14. 24 Kenneth McRoberts, Ouebec Social Change and Political Crisis, 3" ed. uoranto: McCleUand & Stewart Inc., 1993), 295. 25 Vheberg, "Federal-Provincial Relations in Canadian Lnunigratioa," 3 14.. 26 Quebec, Rappat annuel 1978- 1979 Ministére de l'Immigration (Quebec City: Editeur officiel du Quebec, 1980), 73-74. The agreement gives Quebec an effective veto over the selection of independent immigrants by stipulating that before any independent immigrant lands in

Quebec the prior approval of Quebec is required. However, the agreement does not give

Quebec any authority over the determination of the eligibility of Family Class immigrants. Nevertheless, it does allow the province to determine the tinancial capability of the sponsor to Iive up to hidher sponsorship obligations. As a result of this agreement,

Quebec became, and remains, the only province directly involved in the selection of immigrants.

In the same month, Cullen and minister of state for federal-provincial relations, Marc Lalonde, signed the Canada-Nova Scotia Immigration Agreement and the

Canada-Saskatchewan Immigration Agreement. Over the following year, as provinces began to realize the benefits of these agreements, Newfoundland, New Brunswick, and

Prince Edward Island al1 concluded agreements similar to the ones signed with Nova

Scotia and Saskatchewan. These agreements did not inciude any involvement of these provinces in immigrant selection, but they did establish mechanisms for ongoing consultations and CO-operation. They bind each party to extensive policy consultation and exchange of information as well as specifying specific categories or types of immigrants that each province desired. These agreements are also not as detailed as the

Quebec agreement, and are cornparatively bnef. In each province they generated different procedures, directives, and sub-agreements. In 1981, Alberta entered into negotiations for its own immigration agreement, but these were suspended the following year. In 1983, British Columbia indicated that it wanted to enter into negotiations, and, in 1984 Saskatchewan indicated that it wanted to renegotiate its agreement. After the 1 984 election of the Conservatives, the new government indicated that it was willing to

negotiate with al1 three of the western provinces. In November 1985, Alberta concluded

it s agreement with the federal government .

Control over immigration is ofleri considered a crucial feature of sovereignty,

and a prerequisite for the self-determination and autonomy of a c~mmunit~.'~This has generally been the position fiom which Quebec has shaped its immigration policies and

pursued immigration agreements with the federal government . Quebec has sought and obtained an important role in the selection and integration of immigrants to Canada who intend to settle in Quebec on the grounds that control over immigration matters is a significant element of the self-determination of Quebec. It is crucial to its ability to maintain and develop its society in accordance with its own goals. The response of a society to immigration can also be a key to its self-under~tandin~.'~The degree of openness to immigrants, the criteria of selection and exclusion, the types of adaptation, and the degree of confonnity to the dominant population expected of new arrivals indicate something about who belongs, what is valued, and what rnembership and citizenship mean.

In 199 1, Quebec negotiated a new immigration agreement with the federal government known as the Canada-Quebec Accord Relating to Immigration and

Temporary Admission of Aliens. The accord continued much of what had been contained in the Cullen-Couture agreement. Under this agreement, Quebec receives compIete control over the selection criteria for immigrants other than those in the family

" Joseph H. Carais, "Immigration, Political Community, and the Transformation of Idem: Quebec's 1mmigration Policies in Critical Perspective, " in 1s Ouebec Nationalism Just? Perspectives from Analaohone Cana&, ed. Joseph H, Carens (Montreal & Kingston: McGill- Queen's University Press, 1995), 20. class and in the assisted relative class. However, in those classes it is allowed to determine how Canada's criteria are applied to individual cases. Under the Accord, the

Canada and Quebec selection processes are parallel and contain many of the same features, such as points for education, employment, specific vocational training, and officia1 language knowledge. However, the Quebec grid rewards knowledge of French significantly more than it does knowledge of ~n~lish.''Quebec awards fifieen points for knowledge of French and only two points for knowledge of English, whereas federally the two languages are weighted equally.30 The Quebec grid also contains factors not present federally, such as additional points for having relatives or fnends residing in the

Quebec settlement area, having spouses who speak French or having an occupation for which there is at least average demand in Quebec, and for having children under twelve years of age."

The accord also requires that both the federal governrnent and Quebec pursue policies that wil1 provide Quebec a percentage of the total number of immigrants at ieast equal to its percentage of the Canadian population, with the right to exceed its percentage by up to five percent. Quebec ahagreed to accept at lest the same proportion of refhgees as immigrants. Moreover, the accord provided for the federal withdrawal fiom al1 immigrant reception and integration services in Quebec with, of course, financial c~rn~ensation.'~The amount of the compensation was $75 million in 1991-92 rising to

2g Ibid. '9 Lome Foster, Turnstile Immieration Multicutturaiism. Social Order & Social Justice in Canada (Toronto:niompson Educational Publishing, Inc., 1W8), 13 1. 30 Carens, "Immigration, Polit ical Commun ity, and the Transformation of Identity," 26. 3' Foster, Tumstile Immigration, 13 1. '* Black and Hagen, "Quebec Immigration Poiitics and Policy," 295. $90 million by 1994-95, but down to $80 million for 1997-98.33 This was essentially the

type of arrangement that the failed Meech Lake Constitutional Accord had guaranteed

Quebec. Immigration had been one of the five key demands set out by the Liberal

government of Robert Bourassa for Quebec to sign any constitutional amendment.

The existing federal-provincial agreements are al1 autho~edby the federal

Immigrariori Act. 1976; therefore they do not have constitutional standing and could be

abrogated or altered by a federal statute." The sections pertaining to immigration in the

Meech Lake Accord would have conferred a degree of constitutional protection on an

immigration agreement to shield it fiom the unilateral legislative power of the federal

Parliament. By entrenching these agreements Parliament would have been forfeiting its

right to supremacy in immigration legislation.'* Al1 provinces were given the

opportunity to negotiate new agreements that would be constitutionally recognized. For

most provinces, having supremacy over immigration was enticing and desirable. In the

light of Meech Lake, the federal government touted the Canada-Quebec Accord "as a

mode1 of how federalisrn could be rene~ed.''~~

Outside of Quebec the federal govemment continued to sign new immigration

agreements and amend old ones. This has been viewed as being as much for the benefit

Quebec as anything. The signing and reworking of such agreements have been viewed

by the federal government as opportunities to demonstrate that the Canadian federation

can still work to meet provincial objectives. In January 1991, the minister of citizenship

33 Foster, Turnstile Immimtion, 13 1 . " Ibid. '9- Price Base, "Constitutional Change as a Political Issue," in Canadian Politics, 2'"' ed., eds. lames P. Bickerton and Alain-G. Gagnon (Peterborough, On. : Broadview Press, 1994), 392. 36 Estanislao Oziewicz, "Immigrationpact called step forward," Globe and Mail, 6 February 1991, A7. in Ontario indicated that that province was considering various options that would allow

it to have more control over immigration issues, partïcularly those immigrants who are

likely to make their way into the labour market. It is probable that some institutionalized

process for jointly selecting immigrants will eventually be negotiated between Ontario

and ~ttawa.~'However, no agreement has yet been reached probably due to the cool

relations between the Harris and Chretien govements. As fâr as British Columbia is

concerned, despite its initiation of discussions with Ottawa in the early 1980s, no

agreement was reached.

In October 1996, Manitoba finally signed its first immigration agreement

with the federal government. With the exception of agreements signed with Quebec this

agreement was similar to previous federal-provincial agreements on immigration. The

agreement allowed for provincial advice on the development of immigration policy,

Manitoba to plan for an annual number of skilled worker and business class immigrants

proportional to Manitoba's portion of the Canadian population, a shared commitment to

CO-ordinateskilled worker and business immigrant promotion and recruitment abroad, and CO-operationin the development and evaluation of new procedures to facilitate the assessrnent of educational, occupational, and professional credentials obtained outside canada.'* This agreement was fùrther updated through two agreements signed between

Manitoba and Ottawa in June 1998. In the first, the Settlement Services Agreement

(SSA), the federal govemment agreed to provide $7 million over two years to aid

Manitoba in assuming primary responsibility for the delivery of settlement services for

37 Gerald Dirks, Controversv and Complexity Canadian bnmipration Policv ME the 1980s (Montreal & Kingston: McGill-Queen's University Press, 1993, 104. immigrants. The second agreement, the Provincial Nominee Agreement (PNA), provides for the direct participation of Manitoba in short-term recruitment projects to meet labour market shortages. Federal Minister of Citizenship and Immigration Lucienne Robillard touted the agreements as a demonstration of the mutuai cornmitment to CO-operation between federal and provincial governments to improve the immigration system, while

Manitoba Culture, Heritage and Citizenshi p Minister Rosemary Vodrey saw the agreements as giving Manitoba "the flexibility to provide services that reflect local needs and ensure new immigrants connect more effectively with provincial services such as training, education, and other services that help newcomers adapt to their new home."39

The PNA allows Manitoba to have a direct role in the identification of skilled individuals who could provide significant industrial and economic benefits to the province. The SSA was intended to encourage community involvement, eliminate administrative overlap, and ensure that services are accountable, effective, and efficient.

In February 1997, the federal government did make an offer to Ontario,

British Columbia, and Alberta that would have allowed those provinces to expand their control over immigration. These negotiations were linked to the decision of Ontario to support the Canada Pension Plan reforms of the federal government and a broader strategy to smooth relations with the provinces to clear the deck for potential taIks on the

38 Canada. Citizenship and Immigration Canada. Canada and Manitoba Sign Firsr Irnmigration Agreement. News Releases. 96-23. 1996. Online. Cnizenship and Immigration Canada. Available: http://www.cicnet.ci.gc.ca/english/press/96/9623-preehtml128 Nov. 1998. 59 Canada. Citizenship and Immigraîicm Cana&. Canada andManitoba Reach Agreements on Provincial Nominees and immigranf &rilement Services. News Releases. 98-35. 1998. Online. Citizensh ip and Immigration Canada. Available: http://www.cicnet.ci.gc~~english/p~d98/9835re.l.28 Nov. 1998. future of Quebec within canada." The offer included control over programs such as language instruction that are designed to help immigrants settle and integrate into their new communities, and greater input into the selection of immigrants. Such devolution of power would bring these provinces more in line with the immigration authority granted

Quebec under the 1991 agreement it signed with the federal govemment. Negotiations with Ontario stumbled over demands by the province for additional money over and above what the federal government was offering alongside the devolution of control. An

Ontario spokesperson called the negotiations "fitful.'*'

In March 1998, Saskatchewan also had its immigration agreement with the federal government updated. Primarily, this renegotiation was to add an agreement that contained the Provincial Nominee Program (PNP). This is essentially similar to

Manitoba's PNA. It allows Saskatchewan to target and recruit immigrants in priority areas linked to its economic objectives. Again nominees will be individuals who could bring significant benefit to the local ec~nom~."~

In May 1998, the federal government and British Columbia finally reached an agreement for co-operation on immigration. This agreement is a five-year agreement allowing British Columbia to assume greater responsibility for immigrants coming to that province.J3 The agreement was signed between federai Citizenship and Immigration

U) Edward Greenspon and Scdt Feschuk, "ûttawa offers immigration deal, Ontario, B.C., Alberta being wooed with expanded control, more cash to ease grïevances," The Globe and Mail, 27 February 1997, Al. J 1 Andrew Due, "Ontario, B.C. want qua1 immigrant deal: Quebec gets more than its &are of federal money for newcomers," The Hamilton Spedator, 28 February 1997, B2. 12 Canada. Citizenship and Immigration Cana&. Canada and Saskatchewan Sign Immigration Agreement. News Releases. 98- 17. 1998. Onlhe. Citizenship and Immigration Canada. Available: http://www.cicriet.ci.gc.ca/english/pr~817-pre.html. 28 Nov. 1998. 43 Canada. Citizenship and Immigration Cana&. Canada and B. C. Sign an Agreement for Co- operation on Immigration. News Releases. 98-26. 1998. Online. Citizenship and Immigration Canada. Available: http://www.cicn&.ci.gc.ca/english/press/98/9826.l. 16 Jun. 1999. Minister Lucienne Robillard and British Columbia Minister Responsible for

Multiculturalism, Hurnan Rights and Immigration Ujjal Dosanjh. This agreement allows for greater input fiom British Columbia through a formalized policy and planning process. The agreement also includes a partnership between Canada and British

Columbia to attract more business immigrants. This agreement also satisfied the desire of the governent of British Columbia to play a greater role in managing the impact of immigration in the province. The agreement also included federal funding for settlement services and programs totaling $45.8 million over the 1998-99 and 1999-2000 fiscal year in order to allow British Columbia the opportunity to better co-ordinate service delivery and reduce existing overlap and duplication. British Columbia had been receiving 22 per cent of al1 Canadian immigrants while having just 13 per cent of the Canadian population. The result was overcrowding in schools and skyrocketing English-as-a- second-language (ESL) costs. Without control over the number of immigrants arriving in

British Columbia, which the province receives under this agreement, the province just had to absorb the immigrants."

In February 1999, the federal govemment and New Brunswick reached a new immigration agreement. Minister Robillard and New Brunswick Minister of Labour Joan

Kingston signed it. This agreement was also a five-year agreement that allows New

Brunswick the right to designate immigrants who will hlfill specific needs ccconsistent with its policies on immigration, economic, and industrial deve~o~rnent.'~'This agreement also included a PNA similar to that signed with both Manitoba and

4.4 Barbara Yaffe, "Ottawa poised to balance B.C.'s immigration cost inequity," The Vancouver -Sun, 28 February 1997, A3, Saskatchewan. Like many of the provinces, this agreement was designed to fil1 shortages within the labour market in New Brunswick.

The federal government in its 1997 legislative review of the Immigrarion Act and its immigration policy reaffirmed its commitment to including the provinces in immigration. It also proposed a Federal-Provincial Council on immigration comprised of ministers responsible for immigration. This would be a formal structure to engage in policy-making in al1 areas that the ministers deemed appropnate. The hope has been that fiom such an arrangement would emerge a sense of collective responsibility for immigration.& Such a structure would have to be careful to avoid developing a "federal versus provinces mentality. "" The structure would require deputy ministers and other senior oficials to meet regularly to lay the groundwork for annual ministers meetings. It also called for a small secretariat to be created and seconded fiom the federal and/or provincial governrnents to organize and perform follow-up on t hese meetings.

Summary

Intergovernmental relations and involvement in immigration provides a very good example of the abiiity of the Canadian federal system to adapt to accommodate the needs of al1 members units. While the federal govemment is primarily responsible for immigration to Canada, because people largely immigrate to a country, not a province, and because only the federal government has the resources to maintain such a system, it

'' Canada. Citirenship and Immigration Cana&. Canaab and New Brunswick Reach un Agreement on Immigration. News Releases. 99- 14. 1999. Online. Citizenship and Immigration Canada. Available: http://www.cicn~.ci.gc.ca/englisWpresS/99/9914-pre.html. 16 Jun. 1999. 46 Canada. Immigration Legislative Review. Nat Jud Numbers A Canadian Frarnework for Future Immigration (Ottawa: Minister of Public Works and Govemment SeMces, 1997), 28. '' ibid. does offer signifiant tle~ibilit~.~~The system allows Quebec to select large numbers of

immigrants directly and maintain an immigration presence abroad, and Ontario to not

participate in immigrant selection. The system also allows for provinces to become

invohed or increase their involvement in immigration at a later date. This was the case

with Manitoba, Saskatchewan Alberta, and British Columbia, and the door remains open

for Ontario. For Quebec, immigration has primarily been seen through the lenses of

culture. demography, and language, but for the other provinces immigration has been

viewed primarily from the perspective of economics and the labour market. The system

also allows Quebec to benefit fiom Canada's extensive international and domestic

infrastructure. The main disadvantage of the flexibility permitted by the Canadian

system is the cumbersome administration that is required. This sometimes means that

immigration candidates might be inconvenienced in meeting a recruitment ~fficer.''~

Immigration appears to demonstrate the value of asymmetncal federalism by allowing

Quebec to assume responsibilities that no other province has, and allowing a few

provinces to accept no responsibilities whatsoever in immigration.50 In t his case

asymmetry has emerged through interprovincial variations in the purpose and content of

federal-provincial collaboration. It would seem, then, that the type of collaboration

between governments in the field of immigration has been successtùl. It would also be

48 Canada. Library of Parliament Research Branch. Background Paper. hidon: Constitutional Issues, by Margaret Young (Ottawa: Minister of Supply and Services, 1992), 8. J9 Ibid, 9. -W Kenneth McRobeiu, "Unilateralism, Bilateralism, and Multilateralilism: Approaches to Canadian Federalism," in Intergovemmental Relations, Research coordinator, Richard Simeon (Toronto and Ottawa: University of Toraito Press in couperation with the Royal Commission on the Economic Union and Development Prospeds fbr Canada and Supply and Senrices Canada, 1 %5), 90-91. viewed as an example of how to deal with other fields and issues outside of the constitutional realm.

While the acceptability of asymmetncal federalism that this approach brings to executive federalism is important, it is also important to bear in mind another somewhat related and significant aspect of this approach. It allows negotiations to focus on one particular issue with a limited number of participants, thus creating an atmosphere that is conducive to successfùl negotiation. In this sense it follows the path set out by

Dupré's fiscal review model. Generally, these negotiations are lefi up to ministers fiom each government andlot- officiais fiom the affected departments.

Despite the pre-emption of this approach by the three mega-constitutional rounds beginning in 1980, this bilateral, ministerial type of negotiation managed to re- emerge aiter the Meech Lake Accord. In 1991, the Mulroney Conservatives signed the new Canada-Quebec Accord, and so began a process of achieving some of the objectives of Meech Lake in a non-constitutional manner. It would set the stage for other federal- provincial agreements. The next chapter will examine the LMDAs to demonstrate that this approach continued. Cha~ter4: Labour Market Develo~mentAgreements

In the months immediately following the 1995 Quebec sovereignty

referendum the federal government scrambled to fùlfill promises made to Quebec voters

in the dying days of the carnpaign, particularly those promises made by Prime Minister

Chretien in his speech at Verdun on October 24, 1995.' The promises included an

unspecified recognition of Quebec as a distinct society, to provide Quebec with a veto

over constitutional change, and the transfer of hl1 control over labour-market training to

the govemments of Quebec and the other nine provinces.2 With respect to labour market

training, the federal government was offering was a package containing both labour-

market training and labour-market development. The provinces would be allowed to

deliver any or al1 of the five active measures that were fùnded out of the active measures portion of the Employment Insurance (EI) fùnd. The five active rneasures are employment creation, employment counseling, wage subsidies, self-employment assistance, and other direct job creation measures. Labour-market training and

development had been a field in which the federal government had asserted a national

interest in terms of its responsibility for economic management and the economic union, and the provinces have also emphasized their competing claims to jurisdiction over al1

matters relating to education including job training.' This chapter will examine the negotiation of these agreements wit h the provinces and territories, and the agreements

1 Canada. Office of the Prime Minister, News Release, "'The Prime Minister Delivers on Referendum Commitments with Initiatives for Change, " November 27, 1995; Edward Greenspon, "PM'S training plan being tailored for Quebec," The Globe and Mail, 29 May 1996, A4. Heman Bakvïs, "Federalisrn, New Public Management, and Labour-Market Development," in Canada: The State ofthe Federatim 1996 eds. Patrick C. Fafàrd and Douglas M. Brown (Kingston, On. : institute of intergovemmental Relations, Queen's University, 1 996): 136. themselves to determine if they fit a pattern similar to the one followed by the federal- provincial immigration agreements and other federal-provincial agreements.

This transfer of labour-market programs to the provinces marked a departure fiom previous labour-market initiatives. Pressure fiom the provinces, especially Quebec, in the lead up to the 1995 Quebec sovereignty referendum, and the fiscal crisis that the federal Liberals inherited fiom their Tory predecessors led to this federal retreat in the area of active labour-market policy (ALMP).~ALMP consists of rneasures that improve the access to labour markets and jobs, develop job-related skills, and promote efficient labour markets.' In 1993, the Liberals in their election program

(the Red Book), made commitments to measures that broadly pertained to ALMP, but only one of these measures received a specific fùnding commitment. This particular measure was the creation of the Youth Corps. Between 1993 and 1997 the financial commitment of the féderal government to ALMP remained stagnant.

Merthe election of the Progressive Conservatives in 1984 more federal training dollars began to be shifted direct to private sector employers. This was demonstrated through the Canadian Jobs Strategy (CJS) in 1985 and the Labour Force

Development Strategy (LFDS) in 1989. These two programs broke the web of institutional linkages that had guaranteed provincial influence over federal training expendituresa6The approach of the Progressive Conservative govemment had a distinct

' Ibid. Rodney Haddow, "How Ottawa Shrivels: Ottawa's Declining Role in Active Labour Market Policy," in How Ottawa S~ends1998-99 Balancinn Act: The Post-Deficit Mandate, ed. Leslie A. Pal (Toronto: Oxfôrd University Press, 1998): 99-1 00. ' Ibid, 100. 6 Rodney Haddow, "Federalism and Training Policy in Canada: Institutional Bamers to Economic Adjustment," in New Trends in Canadian Federalism, eds. Francois Rocher and Miriam Smith (Peterborough, (m.: Broadview Press, 1995; reprint 1998): 343. focus on private sector leadership and budgetary restraint associateci with its economic policy. Both the CJS and LFDS involved greater emphasis on market sensitivity and private-sector involvement in training, and presumed that training expenditures from the federaI Consolidated Revenue Fund (CM)would have to be decreased as a result of budgetary restraint.

Under the CJS, the federal government came to rely increasingly on the indirect route for purchasing training. This route abandoned co-ordination with the provinces and saw the federal government, through the Canada Employment Centres

(CECs), signing training agreements directly with private parties. These private parties included individual fims requiring new skills; firms willing to supply specific training, non-profit organizations, or sedorai or local cornmittees usually dominated by interested businesses.

The parameters of indirect training - what training would be provided and where - would be set out in detail in agreements with the private parties. It might be agreed that some of the training should be purchased from provincial community colleges, but increasingly large parts of it were instead purchased from private-sector trainers. 7

The LFDS was the result of the Canada4J.S. Free Trade Agreement

(FTA). It was a response to opposition parties identieing the need for adjustment programs to replace the jobs that they warned would be lost as a result of the FTA and to retrain the displaced workers. The Conservatives responded during the 1988 election campaign that, after the election, the FTA would be combined with adjustment masures to facilitate the mobility of capital and labour from sectors hurt by the FTA to new sectors that would be aided by the FTA. This also fit with the Conservatives' desire to re-depIoy Unemployment Insurance (UI) expenditures dong more market enhancing

Lines. The LFDS was announced in April 1989, and it redirected $800 million fiom UI fùnd for development uses. To guide the use of these funds, the LR)S included major consultation with labour, business, provincial and territorial govemments, education training institutions and other spheres.

The ultimate result of the LFDS was the creation of a national training board. This board was the recommendation of a report of the Canadian Labour Market

Productivity Centre (CLMPC),an Ottawa research institution operated jointly by national business and labour organizations. The provinces complained that they had been lefi out of the CLMPC-led consultation process. In January 199 1, the federal governrnent subsequently announced the creation of the Canadian Labour Force Development Board

(CLFDB), compnsed of twenty-two non-govertmental representatives from business and labour. The board also contained single representative from four social action goups: women, the disabled, visible minorities, and Aboriginals. The board's relation to the federal training expenditures was initially only advisory, but came to involve ever increasing responsibility for s-ing national training priorities and developing an expenditure plan.g

The CLFDB began in December 1991 to create a network of private- sector-led provincial and local boards to compliment the national board. However, t his network proceeded slowly and inconsistently across the country. The reasons for this

' Ibid, 345-346. ' Canada. Employment and Immigration Cana&, Success in the Works (Oaawa: Muiister of Supply and Services, 1989): 13; cited in Haddow, "Federalism and Training Policy in Canada," 351. were two-fold: first, there was difficulty in mobilizing business and labour participation;

second, the factious federal-provincial relations led the provincial governments to fear for

their fùture role in the training field.

Quebec refùsed to reçognize the authority of the federal CLFDB within its

borders. Instead, in June 1992, the province of Quebec created the Société québécoise de

développement de la main d'oeuvre that was also dominated by business and labour. The

Société was delegated by the federal govenunent the authority to oversee federal training

purchases in Quebec. The federal govenment accepted an entirely provincially

organized network of boards as a substitute for its own. 'O There was also resistance to

the CLFDB in Ontario where the provincial govenment had set up the Ontario Training

and Adjustment Board (OTAB) with a similar mandate and composition as the CLFDB.

British Columbia also set up its own provincially accountable structure, and Alberta has

been uncooperative with the federal board in the creation of a provincial equivalent. This

federal design had better prospects among the six smaller and poorer provinces- The

New Brunswick Board had a much closer relationship to the federal government than it did with the province. The training bureaucraties in both Nova Scotia and New

Brunswick resented the efforts of the CLFDB and HRDC, and viewed them as extensions of the CJS."

For Quebec, constitutional recognition of its exclusive jurisdiction over training programs has been a long-standing demand- However, this demand was not among the five minimum demands of Premier Bourassa that comprised the core of the

Meech Lake Accord. merthe dernise of Meech Lake, both the Allaire and Belanger-

- - Haddow, "Federalisrn and Training Policy ùi Canada," 352. 'O Ibid, 357. Campeau Reports demanded a sweeping transfer of powers tram Ottawa to Quebec, and labour-market training was among them. The federal government knew that any new constitutional package would have to offer new powers to Quebec, but it also did not want an asymmetrical federation, so it would offer the same to al1 provinces. Thus, the federal government's recommendations for renewing the constitutional reform process included a proposal that "section 92 of the Constitution Act, 1867 be amended to recognize explicitly that labour market training as an area of exclusive provincial jurisdiction." Among the ROC Ontario, Alberta and British Columbia were happy to assume responsibility for labour-market training. However, among the Atlantic

Provinces the enthusiasm was considerably less, because they felt that the federal training doIlars would be very dificult to replace even with reasonable compensation fiom the federal government. Because of these concerns the final text of the Charlottetown

Accord made this transfer optional.

With the defeat of the Charlottetown Accord, the federal government announced that this proposai was dead and that it would continue its role in the field and proceed with the LFDS. Nevertheless, the Quebec govemment pushed its case, and in

June 1994 the federal government offered to transfer four important parts of its roIe in labour market policy to the provinces. This included control over most direct and indirect course purchases and an important role in the strategic planning of which skills should be given prïority in the training system.12

In 1993, during the short tenure of Kim Campbell as Prime Minister, the

Department of Human Resources Development Canada (HRDC) was created as a result

" Ibid, 358-359. '' Ibid, 362. of the wholesale reorganization of Cabinet and the amalgamation of ministerial portfolios. Under the new Liberal government, the minister of HRDC, Lloyd Axworthy, launched a wide-ranging social security review. However, Axworthy's proposed reforms proved to be too ambitious. The February 1995 Budget Plan also saw the influence of the

Department of Finance over social policy increase considerably. This Budget Plan also reconfirmed the announcement that there would be an overhaul of the L? plan. The 1995

Budget set three objectives for HRDC, among them was the reform of UI and the consolidation of several programs into the Human Resources Investment Fund (HRIF)."

Two teams began tackling this program review with one focused on items such as the

Disabled Workers Program, Older Workers Adjustment Program, and the remains of the

CJS. This same team was also responsible for the active labour-market measures portion of the new Employmerit Insurance (EI) legislation that was being prepared to reform the

Ui program.

In December 1995, the new EI legislation was announced, and most of the attention was focused on Part 1 of the act conceming insurance benefits and new provisions targeting seasonal workers. However, Part II of the new Empioyment hrsrtratzce Act is at the hart of the proposais made by the new Minister of HRDC Doug

Young. Part II is the successor to the active measures in the old UI Act. They are designed to "provide unemployed Canadians with better opportunities to obtain and keep employment and to be productive participants in the labour force." The five measures are:

Targeted wage subsidies to encourage hiring and provide on-the-job experience; Targeted earning supplements to help with the transition back into employment;

13 Bakvis, "Federalisrn, New Public Management, and Labour-Markeâ Development," 140. Self-employment assistance in the forrn of financial support, coaching and planning assistance to help individuals start businesses and create jobs; Job-creation partnerships between provinces, the private sector, labour and communities to create work opportunities in local econornies; Loans and gants for skills development to provide fùnding to qualified individuals so that they can seek out the training course that best fits their needs."

The fifth measure listed above would only be implemented in a province

with the agreement of the provincial govemment. This would be in keeping with the

announcement made by the Prime Minister on 27 Novernber 1995 regarding the

withdrawal of the federal governent fiom labour-market training. On 30 May 2996,

Minister Young went fùrther by announcing that the federal govemment was willing to

turn over the five active measures to the provinces. The fderal government also agreed

to let the provinces take over the delivery of related services, such as the screening of

applicants for the active measures programs, employment counseling and Idlabour-

market placement, if they assumed responsibility for the delivery of the active

employment measures." The federal government also indicated that it would withdraw

from the purchasing oftraining, apprenticeship training, CO-operativeeducation,

workplace-based training, and project-based training over a three-year penod, but that it

would proceed at a quicker Pace if a province wished. Federal ALMP had long been

impinged upon by provincial and regional pressures that have diminished the ability of

the federal government to direct resources to preferred objectives, and subjected the federal role in ALMP to persistent challenges from provincial governments. l6 The

former indicates the importance that labour market measures have had in the brokering of

IJIbid, 142. 15 Canada.. Human Resources Develapment Canada, News Release, "Govemment of Canada Offers Provinces and Territories Responsibility for Active Employrnent Measures," 30 May 1996. regional interests within the goveming party. This has essentially meant that ALMP

money has often been spent on measures that are passive. The two best examples of this

have been The Atlantic Groundfish Straîegy (TAGS) and Transitional Jobs Fund (TIF).

The TIF responded to consistent demands fiom the provinces to receive control over

ALMP measures within their boundaries. For its part, the federal government was

motivated by both national unity and economic-efficiency concems, although at the time

the former was arguably the most pressing motivationai factor."

Since the May 1996 announcement, agreements to turn over control of

labour-market training in varying degrees to the provinces have been signed with every

province except Ontario. The federal proposal also contained a number of additional

features: first, what the federal government called mutually agreeable "results based

accountability frame~orks"'~that were required to be a part of al1 federal-provincial

agreements; second, the minister of HRDC remains accountable to Parliament for the EI

program; third, al1 the financial staternents of the Et account must be audited by the

federal auditor generai. There was also the federal requirement within the accountability

fiameworks that the transfer of the five active measures would be on the condition,

derived from the Et legislation, that the uses to which the EI fùnds are put must meet the

objectives of the El prograrn.'g This requirement was thought to be a potential roadblock to agreement with the provinces. The federal govemment du, proposed to transfer

HRDC employees to the appropriate provincial departments, because a significant part of the service delivery network of HRDC would be rendered redundant as a result of the

I6 Haddow, "How Ottawa Shrivels," 105-106. 17 Edward Greenspon, "Ottawa offers provinces control of job programs," The Globe and Mail, 3 1 May 1996, A4. " Bakvis, "Federalism, New Public Management, and Labour-Market Develapment," 145. tuming over of the active measures to the provinces. The federal government also

indicated a willingness to make compensatory payments to accompany these transferred

employees. The federal govemment, as well, was concemed about maintaining its

single-window service whereby clients could access multiple programs such as EI,

Canada Pension Plan benefits, and provincial social assistance fiom one location.

However, initial1y the on1y federal-provincial CO-operative experiments of this kind were

the forays in CO-location in cities such as Winnipeg, Edmonton, and Caigary.

These federal proposais were developed primarily as a direct response to

the demands of the Quebec government for fiil control over labour-market training. This

has been a long-standing demand by al1 of the major social actors in the province: the

separatist PQ, the federalist Quebec Liberal Party, business, and labour. In fact, in

December of 1995 the Quebec Nationai Assembly (QNA) unanimously passed a motion

that called on the federal govemment to gant the Quebec govemment fùll control over

labour market training2* A similar motion had also been passed by the QNA back in

December 1990 afirming the jurisdiction of Quebec over al1 aspects of labour market training2' Part of the motivation behind the creation of the Société québécoise de développement de la main-d'oeuvre (SQDM) was to contest the involvement of the

federal government in the labour market field.22 Part of the objectives of the SQDM was also to take over federal activities in the labour market field when these activities were

l9 Ibid, 145. 20 Rhea1 Seguin, "Quebec agrees to manpower talks," The Globe and Mail, 5 December 1995, A4. " Pierre April, "Bourbeau fait l'unanimité sur le rapatriement de tous les pouvoirs touchant la main-d-oeuvre," Le Devoir, 14 December 1990, AS. 22 Rodney Haddow, "Labour Market Corporatism in Quebec: The State-Institutional and Societal Parameters of a Changing Policy Cornmunîty," Paper presented to the annual meeting of the Canadian Political Science Association, 1997: 7. devolved to the government of ~uebec? The previous reluctance of the federal govemment to turn over wntrol of labour-market training was viewed as a major symbol of federal intransigence and the unworkability of Canadian federalism." in seeking an agreement with any province the federal government has sought to avoid reaching

"agreements-in-principle;" rather, it has preferred to obtain agreement on a detailed proposal with specific sectoral agreements before committing itself The federal offer was untraditional in the sense that it placed everything on the table and was relatively detai~ed.~'

Many of the other provinces also fiamed their demands in terms that were similar to those of Quebec. The position of al1 the provinces, except Quebec, was outlined in the 1995 report to the premiers fiom the Ministerial Council on Social Reform and Renewal (MCSRR).~~The report recommended that responsibilities within the federation be clarified and realigned and that cornmensurate resources be transferred ftom Ottawa to the provinces; that joint federal-provincial responsibilities be minimized where this would improve the effectiveness of programs; and that the use of the federal spending power should not allow the federal government to unilaterally dictate the design of programs.27 Where labour-market programming was concemed, the report stated the federal govemment should not implement its plan for training vouchers, skills loans, or

Rodney Haddow and Andrew Sharpe, 'The Emergence of Labour Force Development Boards in Canada: An Overview," Paper presented at the annual meeting of the Canadian Political Science Association, 1996: 4-5. " Bakvïs, "Federalisrn, New Public Management, and Labour-Market Development," 149. 23 Hennan Bakvis and Peter Aucoin, 'Negdating Labour Market Development Agreements," Project for CCMD/HRDC, (1999), 23. 26 Canada. Ministerial Cwncil on Social Policy Morm and Renewal, Reptto Premiers, (Ottawa: Minister of Supply and Services Canada, 1993, 10; cited in Bakvis, "Federalism, New Public Management, and Labour-Market Development," 150. " %id. grants without the agreement of the provinces, and that the federal and provincial govemments should clearly delineate their respective roles and responsibilities for labour-market training. A recommendation that the premiers approach the Prime

Minister to discuss UI refonn was also included 1 the report. Of particular concem were the transitional arrangements for the devolution of some aspects to the provinces.

There were three different types of initial responses by the provinces to the federal proposals. The first was a highly decentralized response. Quebec, Alberta, New

Brunswick, and Prince Edward Island al1 wished to take up the federal offer in its entirety and more. The second response was a modified status quo whereby the HRDC in fiastructure would large1y remain, but the provinces would assume much greater control over program design and client selection. These provinces included

Newfoundland, Saskatchewan, and Nova Scotia. The third category of provinces is a group that initially lacked a serious response to the federal proposals. This pup included British Columbia, Ontario, and Manitoba.

Wit hin these categories there are important differences. For examp le, white al1 the provinces in the decentralized category are insisting on hl1 provincial contro1 over delivery and the like, provinces like Quebec and New Brunswick envision an important role for government in delivering services and programs, while Alberta on the other hand is committed to putting as many of these aceivities as possible into the hands of the private sector2*

In some provinces, such as Alberta and Quebec, negotiations over the labour-market issue had been occumng for some the prior to the 30 May 1996 proposals. Outside Quebec, New Brunswick has played the most significant role in negotiations over the five active measures. The proposals put forth by New Brunswick have represented a philosophical difference with the federal government. New

Brunswick had asked to be allowed to take overall five active measures and demanded control over the programs placed under the heading of "pan-Canadian" activities such as training for youth and disabled workers. New Brunswick also wanted an integrated Et and provincial social assistance systern. New Brunswick also brought a more centrally directed economic development perspective to labour market development, but does not reject the local delivery envisioned in the federal proposals.

Between December 1996 and April 1997 eight Labour Market

Development Agreements (LMDAs) were signed between the federal government and the provinces. En order for the federal governent to use EI tùnds to maintain an important role in ALMP, it will have to use the LMDAs it signs with the provinces to ensure that federal funds are spent in a fashion that fits the pnonties of the federal govemment. The role of the federal govemment &er the signing of these LMDAs would otherwise be limited to providing a national system of labour market information, financing pan-Canadian activities from the El fund, and supporting ALMP measures for targeted groups fiom the CRF.~~In this case the main targeted groups are young people and Abonginals. However, the eight LMDAs signed by April 1997 demonstrated that the capacity of the federal government to set pnonties would be limited.

Of these eight agreements, four (Alberta, New Brunswick, Manitoba, and

Quebec) can be classified as devolution agreements. The remaining four agreements

(Newfoundland, Nova Scotia, British Columbia, and Prince Edward Island) can be

29 Haddow, "How Ottawa Shrivels," 108. classified as CO-managementagreements.)' Table 1 and Table 2 provide the details of each of the agreements under both models. The former include a fùll acçeptance of the devolution offer, whereas the latter allow the federal government to continue administering the EI-fùnded ALMP measures while the provinces acquire greater influence over how the federal fùnds are disbursed. The devolution agreements include a number of assurances from the provinces: services will be available in both officia1 languages; employment will be oflered to newly displaced federal ernployees; and public recognition will be given to the federal role in funding ALMP programs. They also contain two important mechanisms for ensuring that the provinces meet federal priorities.

First, the provinces must guarantee that at least a certain portion of program recipients are

EI claimants, meet agreed-upon targets for the number of clients who return to employment (although there were never any set penalties for not meeting these targets), and adrninister fùnds in a manner that meets expenditure reduction targets." The second mechanism is the requirement that in order to qualify for fûnds from the El account the provinces accepting full devolution must offer employment benefits and support measures similar to those under Part II of the El Act. In any case the influence of the federal govemment over disbursements will Vary between the two categories of LMDAs, and among the provinces within each category.

Nonetheless, there was some initial concern on the part of the federal government, particularly Minister Young that the federal govemment receive its share of the recognition for the funds that it would transfer to the provinces.32 This concem over

'O Ibid, 109. 31 Ibid, 109-1 10. 32 Edward Greenspon, "Young pledges move out of training," Globe and Mail, 1 March 1996, A4. federal visibility essentially meant that the federal government wished to see the

"Canadian flag"" on every dollar spent by the provincial govemments in the field of labour-market training. Quebec Employment Minister Louise Harel, who claimed that training money fkom the EI fünd does not corne tiom taxes but fiom the premiums paid by workers including those from Quebec, disputed the reasoning behind this concern.'"

From the beginning it was expected that provinces such as Alberta, New

Brunswick, and Quebec would take up the tùll devolution offer. However, a few provinces that are usually considered cautious, such as Nova Scotia and P.E.I., began exploring the possibility of accepting the fit11 offer. The federal government wanted to bring this initiative to a successful conclusion by reaching agreements with most if not dl of the provinces. It especially wanted to reach an agreement with Quebec, but did not want to reach an agreement with only Quebec. Such a scenario would give the appearance of a special deal for Quebec. The federal governrnent was also willing to go to considerable lengths to achieve these agreements, but they would not be reached at any

COSt.

The actual conduct of the negotiations with the provinces was largely placed in the hands of senior officiais in the regional headquarters (RHQs) of HRDC.

Quebec was an exception to this design. Typically, the Regional Executive Heads

(REHs) of HRDC were designated the chief negotiators for the government of Canada by the deputy rnini~ter.~'These REHs have typically had good connections and relations with provincial authorities and the provincial community; many of the stafFat the RHQs were fiom the province in question. In the case of Quebec, in addition to the REH and

j3 Bakvis and Aucoin, "'NegdiatingLabour Muket Development Agreements," 1 3. 34 Greenspon, "Young ptedges move out of training," A4. another Montreal HRDC official, the deputy minister and another senior HRDC official

fiom the federal-provincial relations branch in Ottawa were also involved.

The provinces, in determining whether to seek hl1 control over the five

active measures or merely greater input over how the status quo would be irnplemented, were presented with some problems while defining their interests and goals prior to the actual negotiations. Most of the provinces had little or no experience in developing and delivering labour market development programs, and few of the provinces had the infiastructure that could handle al1 labour market fbnctions in an integrated manner.

Quebec was by far the province closest to having the necessary infrastructure with its largely unstaffed SQDM)~,but even it had dificulties when it final1y acquired the new responsibilities. For New Brunswick, its Department of Advanced Education and

Labour, which also led the negotiations for that province, was better prepared than most provinces to take on these new responsibilities. The New Brunswick Department of

Human Resources Development acquired the counseling and selection functions. Alberta also had two departrnents - Advanced Education and Career Development, and Family and Social Services - involved in the management and delivery of the active measures.

The fiagmentation and overall limited infiastructure capacity at the provincial level had a number of consequences. First, a number of provinces discovered that they were in a situation akin to the proverbial automobile chasing canine, which, upon actually catching a vehicle does not know what to do with it. Discretion being the better part of valour, a number of provinces decided that taking on the entire package was too

3s Bakvis and Aucoin, "Neg&iating Labour Market Developmeut Agreements," 19. 36 Andrew F. Johnson, 'Towards a Renewed Concertation in Quebec: La Société québécoise de développement de la main-d'oeuvre," in Social Partnershivs fôr Training Canada's Emeriment with Labour Force Devel-ment Boards, eds, Andrew Siiarpe and Rodney Haddow (Ottawa and Kingston, On.: Caledon institute of Social Policy and School of Policy Studies, Queen's Universtîy, 1997): 140. much to swallow and thus backed away and began exploring the co- management option instead."

Among the provinces that backed away were Nova Swtia and Prince

Edward Island. In the cases of Alberta and New Brunswick, the HRDC RHQs and provincial governments each created teams of four or five senior officials drawn fiom the relevant sectors. In Alberta, al1 issues were discussed at one table with al1 negotiators present, although one-on-one sessions did occur to discuss specific issues or points of information. The negotiations with other provinces tended to use side-tables much more ext ensively to deal with panicular issues. In Newfoundland, negotiations were conducted directly between the REH and the deputy minister of the Department of Human

Resources and Employment. In Quebec, the negotiations were much more govemment to government with interaction occumng at the highest level. For Quebec, the negotiations were headed by a senior officia1 from the executive council (the main central agency supporîing the cabinet), the deputy minister of social security, and the head of the

SQDM."

With many of the provinces, HRDC had to be careful to recognize that each province held many important values. For example, for Alberta, it was important not to been seen or treated as a contractor delivenng federal programs and services, but as a government exercising its legitimate jurisdiction. For Quebec, any reference to federal legislation had to be avoided. The Quebec government feared that any such references would imply that Quebec was subject to federal laws with respect to training. Therefore,

37 Bakvis and Aucoin, "NegatiatingLabour Market Development Agreements," 2 1. 3' Ibid, 22-23. the objective for the federal government was to secure its interests as enshrined in various federal acts without making reference to those a~ts.'~

The federal proposal included several aspects in which some concerns would arise during the negotiations. The aspects of the proposal were: time-fiame and financial transfers, program delivery, the accountability fiamework human resource transfers, service to clients/language of service, information sharing, timing, and intragovernmental issues. The latter two issues were process issues while the first six issues were fùnding and jurisdiction-related issues.

The overall amount of money to be transferred to the provinces alongside the responsibility for labour market development was discussed extensively, but never became a hot issue. There was also debate and variability over administrative expenditures. However, the detailed preparation done by HRDC allowed agreement to be reached relatively smoothly. In terms of time fiame al1 the provinces felt the initial three- year period was too short. This was al1 occumng not too long after the federal government had cut transfer payments under the Established Prograrns Financing FPF) and Canada Assistance Plan (CAP), and combined them into the Canada Health and

Social Transfer (CHST) in 1995.~Thus, there was suspicion among the provinces that the federal government might simply be trying to off-load a set of responsibilities on to the provinces and then terminate fùnding for those responsibilities. The federal govemment changed the offer fiom a three-year offer to an indeterminate multi-year agreement with three years of firm fùnding and two years of fùnding at an unspecified

1evel .

39 Ibid, 24. a Ibid, 27. Program delivery only reaily became an issue with Quebec where there was discussion over the degree to which the province was willing to deliver prograrns that matched the description of the five active measures. Quebec wanted to apply its own labels to what it considered to be appropriate measures. The two parties eventually agreed on a set of titles. The accountability fiamework also elicited extensive discussions, but never threatened negotiations. At issue was the appearance of paternalism and conditionality attached to the program fùnding. However, the more fiscally conservative provincial govemments such as Alberta welcomed the idea. The problem essentially became one of who had control over the program evaluation process, and in Newfoundland there were concerns over the methodologies being used. In the case of Quebec, its government would develop an evaluation framework and establish annual results targets. In the cases of New Brunswick and Alberta, there would be a joint evaluation or monitoring process; and, in the case of Newfoundland, both parties had to agree on the need for criteria for measuring the effectiveness of the active measures and co-operate in the implementation of a two-phase evaluation framework."

The problem on the issue of human resource transfers was not a lack of agreement that HRDC employees needed to be transferred, particularly in the case of those seeking fidl devolution, to the provincial public sector as part of these agreements.

Rather it was an interna1 problem. For the federal govemment it meant assuring the employees in question that they would be treated fairly, and for the provinces it meant assuring their employees that the new anivals would not displace provincial employees.

There was also difficulty in reconciling differences in respective collective agreements.

In tems of service to clients and the language of service there was agreement there

- '' Ibid, 30-3 1 needed to be an absence of major disruptions in client service, continuity in case

management, and continuity in service levels and standards. However, the issue that

became a potential deal breaker was the language of service, especially for Quebec. This

issue was ultimately negotiated directly between Prime Minister Chretien and Premier

Bouchard. The Quebec govemment rettsed to acknowledge the jurisdiction of the

Officiai Languages Act (OLA) with respect to the delivery of Part II measures, and the

federal govemment refùsed to give a great deal of legitimacy to the Charter of the French

Language in Quebec. The issue was resolved through an exchange of letters by the

responsible ministers. The Quebec government guaranteed that English-speaking clients would receive service in their own language according to the Charter of the French

Language, but for written communications with corporations established in Quebec, in accordance with the OLA, the federal govemment would perform those fun~tions."~

Under sharing of information., the federal govemment agreed to make ttnds available to the devolution provinces to help defray the costs of upgrading and connecting their information systems. There was also a detailed outline of what information would be

shared and protocols goveming the disclosure and management of this information.

Also at issue was which province would be the first to sign an agreement.

Alberta and New Brunswick were the most advanced in responding to the federal proposals. For the federal govemment the ideal situation was to strike an agreement with

Alberta first. An initial agreement with New Brunswick was less attractive because not onty was the provincial govemment there of the sarne political stripe, but the minister of

HRDC was also fiom that province, and so it would have appeared less consequential and favouritism on the part of the minister. A deal with Alberta first, a province viewed as a

Ibid, 34-35. tough and sophisticated negotiator and not usually a traditional ally of the federal government, would have been more Iikely to impress the other provinces.'" The deal with Alberta was reached in December 1996," while New Brunswick signed its agreement a few days later. Quebec signed its agreement-in-principle - the fifth province to sign an agreement after Alberta, New Bninswick, Newfoundland, and Manitoba - in

Apri 1 1997? Within each of the provincial governments, and the federal govemment, there were problems and issues that also needed to be resolved. Within the provincial governments, this usually meant the bringing together of two or more departments with interests or responsibilities in the labour market development field. Within the federal govemment, this involved relations within HRDC,and usually between the national headquarters (NHQ) and the RHQs.

Summary

The signing of the LMDAs confirmed a shift in the rnanner in and level at which executive federalism takes place in Canada. With HRDC, both at NHQ and the

RHQs, and oficials from the affected provincial departments playing important roles, negotiators were able to reach agreement on the various issues that arose fiom the

LMDAs. The LMDAs provide a very good example of how, with the exception of the

Quebec negotiations where the central negotiators were generally much higher level oficials, the federal and provincial govemments can reach mutually satisfactory

j3 Ibid, 37. 4-8 Brian Laghi, "Alberta vows Ln savings job-training deal, " 'lhe Globe and Mail, 7 December 1996, A4. '" Karen Unland, "Quebec to control job training," The Globe and Mail, 22 Apnl 1997. A6; Edward Greenspm, "Quebec gets job-training role Ottawa cedes control," nie Globe and Mail, 2 1 April 1997, A7. agreements with each other even below the level of the ministers responsible. While some contentious issues did arîse during these negotiations, only very rarely did they threaten to derail the process. Unlike the much broader constitutional negotiations these negotiations were characterized by much less acrimony. That is not to suggest that because the negotiations took place pnmarily arnong unelected officials that they were apolitical negotiations. In fact, both the negotiations between the federal and various provincial governrnents, and the discussions within both orders of government were intensely political.6 This was particularly so because of the sense of crisis after the 1995

Quebec referendum. Around the cabinet tables in both Newfoundland and New

Brunswick there was also considerable discussion and debate over the proposed agreements. In fact, in the case of the Quebec Agreement-In-Principle, both Prime

Minister Chretien and Premier Bouchard became involved in negotiating the sticky language issue.

The style of executive federalism used in the negotiation of the LMDAs allowed several things to occur:

The provinces were ailowed to negotiate and tailor their particular agreements to meet their specific needs and wishes, thus a11 parties (except Ontario) were able to take a rneasure of having gained something back to the people of their provinces; The federal govemment was able to solve parts of its political and fiscal problems without unilaterally off-loading on to the provinces as it was alleged with the CHST or reaching an a eement solely with Quebec and being accused by certain provinces of ''pandering'* Fto Quebec in the aflermath of the referendum; A certain amount of the "naturai" asymmetry of the federation was given implicit recognition via the fact that each province had an agreement that was at least somewhat different than those of the other provinces; Some particularly contentious issues were able to be resolved to the satisfaction of both parties;

56 Bakvis and Aucoin, "Negotiating Labour Market Development Agreements," 43. 47 Peter Stoyko, "Creating Oppomuiity or Creative Opportunisrn?: Liberal Labour Market Policy," in How Ottawa Sr>ends 1997-98 Seeinn Red: A Liberal Report Card, ed. Gene Swimrner (Ottawa: Carleton University Press, 1997): 99. Even those provinces that did not feel able to take on the responsibility for al1 of the active measures were able to increase their level of input into the programs through CO-managementagreements.

As the nea chapter will indicate immigration and labour market development are not the ody two areas where a new approach to executive federaiism has been utilized. The negotiation of the blending of the provincial sales taxes in three

Atlantic provinces and Quebec, the Agreement on Intemal Trade (AIT), and the Social

Union al1 indicate that this change is not specific to only two areas. Chapter 5: HST. Agreement on Internal Trade. Social Union

In addition to reaching unilateral agreement with most provinces individually on matters such as immigration and labour-market training, the federal govemment also reached two separate agreements with four provinces on harmonizing the federal Goods and Services Tax (GST) with the provincial sales tax (PST) in each province. The federal government also held multilateral negotiations with the provinces on an Agreement on Internal Trade (MT) and a Social Union. While the latter two negotiations closely resembled the pre-mega-constitutional methods of executive federalism there are a few significant differences. Arnong them is the fact that, particularly during the Social Union negotiations, different aspects of the agreements were negotiated in different places by different sets of ministers. This chapter will briefly examine the style of executive federalism used during the negotiations that variously led to the harmonization of the federal and provincial sales taxes in three Atlantic Provinces and Quebec, the AIT, and the Social Union.

Harmonized Sales Tan

The GST has been a generator of significant revenues for the federal govemment, and since the 1993 election of the Liberals it has also been the subject of attempts of reform and ultimately harmonization. During the 1993 election campaign,

Liberal platform orators indicated that a victory by their party would mean major change for the GST.' While the exact nature of this promised change was murky, many voters

1 Hugh Mellon, 'The Compiexity and CornpeLitiveness of Fiscal Federalism: Blending the GST with Provincial Sales Taxes," in Chaiiennes to Canadian Federalism, eds. Martin Westrnacdt and Hugh Mellon (Scarûorough, On.: Prentice-Hall Canada Inc., 1998): 164. assumed that this could mean cancellation. In the Liberal 1993 Red Book, the promises

surrounding the GST were much more restrained. The substitute for the GST would

produce:

. .. a system that generates equivalent revenues, is fairer to consumers and to small business, minimizes dismption to srnaIl business, and promotes federal-provincial fiscal CO-operationand harm~nization.~

Harmonization, as conceived by the federal government, involved the integration of federal and provincial sales taxes and the encouragement of retailers to have the tax already included in the sticker price. Harmonization came as the result of an unsuccessfuI Liberal government effort to find a politically palatable alternative to the

GST that would allow them to deliver on a rash partisan promise to get rid of the hated tax.' Interestingly, Quebec was the first province to move towards sales tax harmonization. Quebec signed an agreement in January 1992 with the federal govemment, to allow the Quebec government to collect both the GST and the provincial sales tax and remit to the federal government its share of the revenues." In May 1995,

Quebec premier Parizeau also made an offer to harmonize the collection of both federal and provincial income taxes in Quebec in a similar fashion to the GST and PST.

However, this was largely seen as a ploy to demonstrate that the federation did not work in the penod leading up to the sovereignty referendum. In 1996, New Brunswick,

Newfoundland and Nova Scotia signed a deal with the federal government that saw their

' Canada. Standing Cornmittee on Finance. Ninth report, Redacing the GST:Options for Canada (Ottawa: Canada Communication Group, 1994), 1; cited in Mellon, 'me Cornplexity and Competitiveness of Fiscal Federalisrn," 164. 3 Mel ion, '"nie Complexity and Competitiveness of Fiscal Federalisq" 1 5 8. 4 Rhea1 Seguin, "Parizeau offers to collect more federal taxes," The Globe and Mail, 12 May 1995, A6. sales taxes blended wit h the GST. Of the Atlantic Provinces, only Prince Edward Island resisted federai blandishrnents. Initiaily most provinces were reludant to negotiate an agreement with the federal government except Quebec. This gave the federal govemment someone to blame for its failure to keep its election promise of replacing the

GST.'

During the 1993 election campaign, the GST had great incendiary potential. While the Liberai Party promised major changes in the GST, the precise nature of the promised changes was unclear. However, many voters assumed that the promise of change meant a Liberal govemment would abolish the GST! The House of Commons

Standing Cornmittee on Finance did review the GST in 1994, and recommended harmonization of the federal and provincial taxes without any concrete ideas about how to win the provinces over to the idea. The impasse required pro-active measures such as compensation for provinces losing tax revenue through hannonization.

The agreement reached between the federal government and the govemments of New Brunswick, Nova Scotia, and Newfoundland illustrates the dificulties of deliberations over govemmental revenue needs, reaching workable policy compromises, the cornpetition between provinces, and the interrelationship of federal- provincial and intraprovincial politics. in March 1996, the four Atlantic premiers met to discuss the various offen and options put fonvard by the federal govemment regarding tax harmonization. At this meeting, Prince Edward Island premier Catherine Callbeck expressed strong concems about the scale of lost revenues that would result fiom harmonization.

Rob Carrick, "Martin blames provinces fbr GST inaction," Halifax Chronicle-Herald, 12 Mar& 1996, C3. In April 1996, intergovemmental discussions began between oficials and politicians. Nova Scotia premier John Savage was strongly in favour of the harrnonization idea, while representatives fiom PEI. remained aloof fiom the emerging agreement. Nova Scotia finance minister Bernie Boudreau was also very anxious to see the taxes harmonized. He claimed at the time that the Atlantic Provinces' existing tax structures were compatible, which would make it easier for the region to adopt the federal pian.7 By mid-April 1996 a memorandum of understanding (MOU) had been reached between the federal govemment and the governments of New Brunswick, Nova Scotia, and Newfoundland. This MOU bound the federal finance minister and his provincial counterparts to reaching an agreement by April 1, 1997 at a fifkeen percent tax level, and the provinces had to give up the ability to alter tax rates unilaterally. The provinces also had to accept the harrnonized sales tax being applied against a broader variety of goods not previously taxed. However, the federal government did agree to a compensation arrangement for foregone provincial revenues. In Nova Scotia and New Brunswick, where the provincial sales tax was eleven percent, and, in Newfoundland, where it had been twelve percent the new fifieen percent rate would mean Iost revenue, the compensation arrangement was made.' The reaching of the MOU and ultimately the agreement was undoubtedly made easier by the fact that Liberal govemments were in place in the three provinces in question and at the federal level. The federal government, at least, felt that this would contribute to better progress in reaching agreement.9

- -- hlellon, "The Complexq and Cornpetitiveness of Fiscal Federalism," 164. 7 Dale Maàill, "Boucireau keen on merging taxes," Halifhx Chronicle-Herald, 22 March 1996, Al. 8 Ian Bailey, ''Martin eager to wed GST,provincial taxes," Halifix Chronicle-Herald, 23 March 1996, A9. 9 Edward Greenspon, 'New cash may win GST deal," The Globe and Mail, 23 March 1996, A4. Al1 three provinces declareci that harmonization would be beneficial because it would simplie tax collection and make shopping easier. Federal finance minister Paul Martin also praised the harmonization as a fllfillment of the Red Book promise. P.E.I. premier Callbeck opted not to join the agreement; rather she stmck a special cornmittee to review the sales tax issue and solicit public opinion. Nonetheless, the MOU began months of laborious deliberations on the detailed mechanics of tax harmonization. Administrative details such as how tax-inclusive pricing would be implemented were also worked out.

Nationally, federal finance minister Paul Martin had been resolute in his opposition to the selective treatment of particular goods. He had defended consistent application of the GST across a broad range of goods as keeping the overall tax rate lower. The three premiers, however, were cornfortable with educational material being exempted from sales tax. Within the provinces there was strong support for exempting books fiom the sales tax. Eventually a compromise was reached. Al1 schools, universities, and libraries would get a 100 percent rebate of tax paid on book purchases; there would be a rebate of the provincial portion of the harmonized tax for al1 other book buyers. 'O The final agreement resembled the MOU with the exception of the rebates.

The harmonization of the three provincial sales taxes with the GST occurred on April 1,

1997. The administration of the provincial and federal sales taxes was also unified. The three Atlantic Provinces jockeyed for the headquarters of the centraiized collection centre for the new tax.

In the rest of the country there were cries of regional favouritisrn. Aiberta premier Ralph Klein condemned the harmonization as an unacceptable federal accommodation towards the Atlantic Provinces. The other western premiers and territorial leaders also shared Klein's sentiments. Bloc Quebecois leader Michel Gauthier criticized the compensation payments to the Atlantic provinces, and challenged Prime

Minister Chretien to justiQ these payments to the people of Quebec when they were the first to harmonize their sales tax with the GST and did not receive similar compensation.

Ontario premier Mike Harris also argued that harmonization at fifteen percent would mean a tax increase for his province at an inopportune time. Manitoba premier Gary

Filmon claimed that such federal-provincial agreements were creating "a patchwork quilt of policies across the country."'' Ontario and British Columbia had almost immediately rejected the harmonization proposal from the federal govemment, while talks with

Manitoba and Saskatchewan did not go very well.

In response to the concerns of Premier Klein and his fellow western premiers, finance minister Paul Martin told provincial finance mi~sters,particularly

James Dinning of Alberta and Ernie Eves of Ontario, at a meeting of finance ministers, that in an era of diminished federal financial capacity the federal govemment has to target its resources in those areas where they will do the most good. Moreover, Martin argued that uniformity is not the same as equity.12 The biggest issue for the other provinces was the compensation package given to the Atlantic Provinces for the lowering of their rate of sales tu. Both Alberta and Ontario viewed the compensation package as a fom of equalization for the Atlantic provinces that would be paid for by themselves as so-called have provinces. Quebec demanded $1.9 billion in compensation fiom its earlier deal to

IO Mellon, 'The Complexity and Cornpetitiveness of Fiscal Federalism," 166. " Brian Laghi, 'Western premiers criticire GST deal," nie Globe and Mail, 5 ime 1996, Al. 12 Edward Greenspon, "Discord over GST on agenda f9r talks," nie Globe and Mail, 17 June 1996, Al. harmonize its PST with the GST. Alberta asked that the 7% GST be cut to 5.5% in his

province as equal treatment for the deal with the Atlantic Provinces. Saskatchewan

premier Roy Romanow added to the chorus by suggesting that many premiers do not

want the compensation because they would have to cover lost revenue once the

compensation ended after four years. Harris, Filmon, and Klein also argued that in the

case of Newfoundland the harmonization deal reduced the GST in that province fiom 7%

to 5.5% as a result of its share ($348-million) of the $961-million compensation

package. l3

Plans for a national harmonization scheme foundered on the refùsal of

Ontario to sign on to a unified tax. Ontario accounts for more than forty percent of the

econornic activity in the country, and thus a proportional amount of the tax revenue?

The federal govemment had offered compensation to those provinces - Nova Scotia,

New Brunswick, Newfoundland, Manitoba, Saskatchewan, and Prince Edward Island -

that stood to lose more than five percent of their sales tax revenue through harmonization.

Most of the other provinces, including Ontario and British Columbia, stood to collect

more tax revenue by agreeing to a harmonized tax at a rate of 14 or 15 % as a result of the broader application of the GST. This has been the basis of the argument put forward by Ontario for a reduced rate for any harmonization in that province. " In fact, Premier

13 David Roberts and James Rusk, "Premiers attack GST harmonization," nie Globe and Mail, 2 May 1996, A6. " Martin Mittelstaedt and Barrie McKenna, "Ontario blocks plan for blended national tax," Globe and Mail, 25 April 1996, Al, " Martin Mittelstaedt, "Harris proposes national sales ta&" The Globe and Mail, 1 1 April 1996, AI. Hams suggested that the prospects of any deal being reached with Ontario based on the

federal proposais were about the same as hell freezing oved6

Nonetheless, those provinces that wished to have their PST harmonized or

blended with the GST - in this case, Quebec, New Brunswick, Nova Scotia, and

Newfoundland - were aIlowed to do so. Those who disliked either the idea of

harmonization or the specifics of the federal proposal were fkee to continue on with the

status quo. The respective finance ministers and their officiais negotiated these agreements, but instead of one-on-one negotiations between each of the Atlantic

Provinces and the federal government the negotiations were conducted between the

federal government and the three signatories as a group.

Agreement on Internal Trade

In contrast, the Agreement on Internal Trade (AIT), which took effect in

July 1995, was the result of forma1 negotiations launched in March 1993 by the federal, provincial, and territorial governments. The issue that the AIT sought to address was that of obstacles to the flow of goods, services, persons, and capital within Canada. The concern was that the growing economic weight of the provinces with respect to regulated activities and public sector procurement would undermine one of the original purposes of

Confederation: to ensure reasonably unhindered access to markets across Canada for

Canadian goods, services, labour, and capital." Whether it is referred to as intemal trade or econornic union, this issue had been around for a few decades before the AIT was

16 Hugh Winsor, "Deal to replace GST evades Ottawa," The Globe and Mail, 2 April 1996, A10. 17 Daniel Schwanen, "OveMew and Key Policy Issues," in Getting There An Assessrnent of the Ameement on interna1 Trade, eds. Michael J. Tfebilcock and Daniel Schwanen (Toronto: C.D. Howe hstitute, 1995): 1. signed. However, the absence of constitutional guarantees or intergovenunental agreements on a fiilly integrated interna1 economic union had not prevented a high degree of economic integration. The Canadian Constitution, as it has been interpreted by the courts, has provided the federal govemment with either exclusive or concurrent jurisdiction over a wide range of economic policy fields. The Supreme Court of Canada has also given the federal government a broader scope for action under the trade and commerce power and the peace, order and good govenunent (POGG) power, and given greater substance to the mobility rights guaranteed in the charter.'' There is plenty of room for integration through federal legislative initiatives without the need to amend the constitution.

The Canadian econornic union gained some attention during the repatriation debates when two studies indicated that there was an increasing tendency arnong the provinces to erect interprovincial trade barriers. l9 The recommendation from these two studies was that section 121 of the BNA Act, 1867 be reformulated. However nine of the ten provinces rejected the reforrnulation of section 12 1 as proposed by the federal government. The issue surfaced again during the Royal Commission on the

Economic Union and Development Prospects for Canada (Macdonald Commission). The

Macdonald Commission recornrnended that a code of economic conduct be developed that would identie unacceptable barriers to interprovincial trade. According to this recommendation, a federal-provincial Council of Ministers of Ewnomic Development

l8 Michael J. Trebilcock and Rarnbod Behboodi, 'The Canadian Agreement on Intemal Trade: Retrospect and Prospects," in Geîiina ïhere An Assessrnent ofthe Anreement on lnternal Trade, eds. Michael J. Trebilcock and Daniel Schwanen florouto: C.D. Howe Institute, 1995): 22. l9 See Jean Chrétien, Securina the Canadian Economic Union in the CmstiMion (Otîawa: Supply and SeMces Canada, 1980); and A.E. Sahrian, Canadian Federalism and Economic intemarion (Oaawa: Privy Council Office, 1974). assisted by a federal-provincial commission on the Canadian Economic Union would

have been responsible for developing this code.

The issue would resurface during the 199 1 constitutional negotiations that

led to the Charlottetown Accord. An ambitious set of proposals was advanced for

strengthening constitutional protection of the Canadian economic union. A broadened

section 12 1 was again envisaged as the mechanisrn for achieving these proposals. Under

the Charlottetown proposal, barriers to the fiee movement of persons, goods, services and

capital would be prohibited. An exemption was included for federal laws enacted to

further the principles of equalization. The Dobbie-Beaudoin Cornmittee also

recommended in its report that section 121 be expanded. Dunng the ensuing federai-

provincial negotiations chaired b y federal minister of constitutional affairs Joe Clark

section 12 1 was reworked. However, after receiving sharp criticism fiom several

quarters and further intense federal-provincial negotiations, the economic union proposals

were rejected. Rather, a series of political accords, including one on the economic union, were adopted.

Nonetheless, despite the rejection of the Charlottetown Acwrd in October

1 992, negotiations among federal and provincial ministers began in March 1993 on

interprovincial trade barriers under the chairmanship of the federal Minister of

International Trade, Michael Wilson. Wilson met with his provincial counterparts and hammered out a schedule for the negotiations, and appointed their respective negotiating tearnszO These negotiations were designed to address al1 existing interprovincial trade barriers concurrently, and had an announced target date of June 30, 1994 for a

'O Jonathan Ferguson, 'Taiks may wipe out our trade barriers," Toronto Star, 18 March 1993, Cl. comprehensive agreement." merthe defeat of the Mulroney Progressive Conservatives the negotiations continued under the new Liberal govemment and the chairmanship of

Minister of Industry John Manley. Manley continued on with the same neutral chairperson, Art Mauro, by whom he was bnefed on the state of the negotiations, and picked up where the previous govemment had left off On July 18, 1994, the

Agreement on Interna1 Trade was reached, and came into force on July 1, 1995.

Some provinces were initiaily wqabout the negotiations, but making the domestic market more open and competitive was a priority for al1 Canadian governments, if they could find an acceptable way to do it. The years of constitutional discussions surrounding the Canadian econornic union had clarified the basics of the problem and developed a cadre of informed and knowledgeable ministers and officiais with clear negotiating positions.22 The AIT was closely modeled in both fonn and substance on international trade agreements such as the General Agreement on Tariffs and Trade

(GATT) and the North American Free Trade Agreement (NAFTA)." The basic principles behind the agreement were those commonly found in international fiee trade agreements: reciprocal non-discrimination, free entry, no obstacles, reconciliation and transparency .

In the negotiation of the AIT there were three key negotiating dynamics: the different governing political party views about the role of government, the meeting of two nominal policy cornrnunities in the negotiation process - trade and federal-provincial

'' Trebilcock and Behboodi, 'The Canadian Agreement on lntemal Trade," 33. 22 Robert H. Knox, "Ecoriomic Integrnon in Canada through the Agreement on Intemal Trade," in Canada: The Sîate of the ~ede~on1997 ~cm~on~onalRGMI, ed. Harvey Lam (Kingston, On.: institute of Intergovemmental Relations, Queen's University, 1998): 142. relations - and the debate over the federal trade and commerce power and the degree to which the AIT could be considered a side-deal on the ~onsti~ion-~~At the centre of the negotiations of the AIT was the battle over general desversus exceptions and legitimate objectives. Political fault lines also affected the dispute resolution provisions, the role of regional policy and Crown corporations, and procurement and investment issues. The agreement was ultimately restricted to eleven sectors: procurement, investment, labour mobility, consumer-related measures and standards, agriculture and food, alcoholic beverages, natural resource processing, energy, communications, transportation, and environmental prote~tion.~~The final agreement was the product of the interplay arnong the federal government, a neutral chair and secretariat, and twelve provinciavtemtonal governments and parties in power in 1993-94. The neutral chair was a new and interesting twist to the negotiations. The person selected by the Progressive Conservative govemment to ovenee the negotiations was Winnipeg businessman Art Mauro.

The federal govemment, the Secretariat, Alberta and Manitoba were the most supportive of an agreement that maximized the general rules and effective dispute resolution mechanisms, and minimized the exceptions. They viewed the AIT as a govemance issue rather than a trade agreement. They were most supportive of an agreement that maximized the general rules and effective dispute senlement provisions

23 Bryan Schwartz, "Assessïng the Agreement on intemal Trade: The Case for a 'More Perfiect Union'," in Canada: The State ofthe Federation 1995, eds. Douglas M. Brown and Jonathan W. Rose (Kingston, On.: instiaite of htergovernmental Relatims, Queen's University, 1995): 200. " G. Bruce Doem and Mark MacDonald, 'The Liberals' Intemal Trade Agreement: nie Beginning of a New Federal Assertiveness?" m How Ottawa Sm& 1997-98 Seeinn Red: A Liberal Report Carcl, ed. Gene Swimmer (Ottawa: Carleton University Press, 1997): 143-144. U Jonathan Ferguson, "Lankin sees 'tremendous progress ' in interprovincial trade agreement," Toronto Star, 27 May 1994, El. and minimized the exceptions.26 In other words they saw the AIT as a mechanism through which interprovincial trade would fiow much more tieely as opposed to an agreement to make the Canadian federation work better. Although the three NDP governments of the day (Ontario, British Columbia, and Saskatchewan) did not agree with each other on every issue they were united strategically and philosophicalIy by a skepticism about a fiee trade agenda in general and federal government intentions. These governments preferred a sectoral approach to internal trade. Ontario opposed a iegalistic accord that would "hamaring us around areas of public policy at the provincial ~evel."~'

In the final agreement they sought to maximize the exceptions and legitimate objectives and minimize general rules and dispute settlement.'' The Liberal government in Quebec was supportive of an internal trade agreement, but its approach was couched in terms of an impending 1994 election. It had to support the AIT without appearing to give up any provincial powers. The impending Quebec election made it imperative that the negotiations not fail. If they had failed it would have been the third visible failure for federalism in four years on a major negotiation. Along with Saskatchewan and British

Columbia, Quebec also wanted their most important Crown corporations exempted fiom the agreement.29 The Atlantic Provinces and the tet-ritoh were cautiously supportive of more open intemal markets, but signed on to the agreement from a position of recognized political weakness. For them the AIT as an exercise in damage control with a defensive posture being the only real option.30 Prince Edward Island and Saskatchewan also

26 Doem and MacDonald, 'The Libenls' Interna1 Trade Agreemenq" 145. " Shawn McCarthy, "Conseasus on trade bamen elusive," Toraato Star, 19 January 1994, C5. '' Doem and Machald, 'The Libenls' Inernal Trade Agreement," 145. " Barrie McKenna, "Minister stresses interprovincial gains," The Globe and Mail, 28 June 1994, B3. 'O Doem and MacDonald, 'The Libenls' interna1 Trade Agreement," 145. retùsed to allow various prohibitions on out-of-province land ownership to be removed, so an exemption was worked out to allow investment restrictions to be imposed on agicultural, beach-front, and "'recreational property.'"'

Throughout the process British Columbia proved to be the party most resistant to the AIT. This was due in large measure to its ideological reluctance to give up economic policy tools in the realm of regional development. British Columbia also wanted guarantees that it would retain the ability to set its own labour and environmental regulations.32 At the last moment British Columbia and its Industry Minister Glen Clark remained a holdout over the waiving of environmental standards in order to promote investment. However, a series of phone calls between Prime Minister Chretien and

British Columbia Premier Michael Harcourt resolved the concem." Intense pressure from Ontario, and strong brokering roles played by both Manitoba and the federal govemment convinced British Columbia to sign the AIT? The Atlantic Provinces were also concemed about the loss of policy instruments, but signed on because of their desire to obtain access to new markets in central and western Canada. Quebec was wary of the entire process, but had two issues that were of particular importance: the exclusion from the agreement of financial services and culture and cultural industries. Alberta was the most fiee trade oriented of al1 the participants. Ontario had initially entered the process with a negative stance similar to British Columbia and Saskatchewan, but this changed as

" Giles Ghenon, "A leas-thanzomprehensive trade deal that's nothïng but loopholes," Globe and Mail, 29 June 1994, A22. 32 Daphne Bramham, "B.C. wants to keep hold on labor, environme*" Vancouver Sun, 19 March 1993, D2. 33 Edward Greenspon, "Harcourt relents after calis hmPM," nie Globe and Mail, 14 July 1994, A2; Derek Ferguson, "Canada-wide pad downs tra& walls," Toronto Star, 29 June 1994, Al 1. 34 Doern and MacDonaId, "The Liberals' Interna1 Trade Agreement," 150. a result of the presence of its Trade Minister Frances Lankin, who was regarded as the most informed and skilled negotiator both politically and te ch ni cal^^.^^

in some ways the negotiation of the AIT has been likened to the executive federalism of the period from the mid-1960s to 1992. However, they were different in a few subtle yet important aspects? The first is the previously mentioned appointment of a neutral chair of the negotiations. The federal govermnent removed itself as the usual chair of such negotiations, thus removing a significant arnount of potential combativeness in light of the recently failed constitutional accords. The other was the willingness of the federal government and the provinces to sign an agreement that does not resolve al1 of the

"bones of contention."" Moreover, Minister Manley called the AIT "the first step in an ongoing process.7J8 The ministers agreed to put off the areas where agreement could not be reached and focus on areas of agreement. They also set up meetings to deal with those issues that remained unresolved. Much was left up to continuing discussion^.'^ in fact, in November 1995, negotiations on certain key aspects of interna1 trade remained ongoing. Several provinces still refûsed to add energy and non-govemment procurement to the agreement.m Nor did Mr. Manley use the usual federal government tactics. He did not walk away fiom the negotiations, nor did he threaten to impose a more comprehensive deal unilaterally. In other words, he did not use the political

'' Ibid. 36 Ibid, 153. 37 Allan Thompson, "Provinces win partial accord on fkee trade," Toronto Star, 28 June 1994, D 1. 38 Ibid. j9 Bame McKema, "Onicials scnmble on trade deal," The Globe and Mail, 13 July 1994, 83. U) Barrie McKema, "Ottawa hopes to boat internai thetrade," The Globe and Mail, 29 November 1995, B2. brinkmanship that was so widely used in past executive federal negotiations.'" His much

more low-key approach probably kept al1 the participants at the table.

Nevertheless, the agreement was, at lest in part, intended to be evidence

of a new co-operative spirit within the Canadian federation for the benefit of the people

of Quebec. For Quebec Premier Daniel Johnson it provided ammunition for his

upcoming election campaign. He describeci the deal as an illustration of how federalism

should work. Premier Johnson wanted to avoid being viewed as a defender of the status

quo.

Despite king criticized for having too many loopholes and exceptions the

..NT does remove interna1 trade barriers in several areas, and set up a code of conduct.

The Agreement creates a rule-based system for trade within Canada, a dispute resolution

mechanism, commitments to future negotiations to broaden the agreement, a code of

conduct to prevent destructive competition for investment, increased labour mobility, a

cornmitment to reconcile standards-related measures, and more open govemment

procurement. However, barriers to the trade of agricultural products, energy, and

alcohol were left in place by the agreement.

The AIT was the first major federal-provincial agreement to demonstrate

that the Canadian federation can reform itself without reforming the Constitution. The

agreement also demonstrated that even agreements that may be incomplete, such as the

MT, help to build confidence, establish trust, strengthen good will and enhance progress,

and that was the real value of the AIT negotiations.42 The AIT negotiations, regardless of

'' Barrie McKema, 'Tracle deal marks milestone for Manley," The Globe and Mail, 18 July 1994, B1. 42 "The nation-tinkerers versus the trade bamers," eâitorial, The Globe and Mail, 20 July 1994, A1 8. how one views the agreement itself, also demonstrated that federalism was still workable in Canada. As Quebec Premier Johnson pointed out the AIT was "a perfect illustration of how federalism should ~ork.'~~

Social Union

The signing of both a Health Care Accord and the Social Union

Agreement in February 1999 fùrther demonstrated a workable federal ism. The Social

Union is essentially an intergovemrnental fiamework agreement that articulates shared values and principles in the areas of health care, sociai assistance, education, etc., and establishes rules about how the federal and provincial govemments should collaborate to deliver programs of a high quality to Canadians in an accountable manner." The necessity of such an agreement arose afler the 1995 federal budget when the federal government unilaterally combined its program transfers to the provinces under the

Established Programs Financing (EPF) and the Canada Assistance Plan (CAP) into the

Canada Health and Social Transfer (CHST). The result was over $6 billion annually in unilateral cuts to federal transfers to ail provinces under the new CHST. The federal government included within this cut under the CHST a one-third cut to funding for social prograrns. The introduction of the CHST and the cancellation of CAP, the last pan-

Canadian shared-cost program, changed the way in which decisions on social programs are made?' The hmework agreement on the Social Union was intended to place a

43 Andrew Coyne, "Federalisrn works! We have it on the highest authority," The Globe and Mail, 25 July 1994, A IO. U Dianne Cunningham, "Ontario's approach to improving Canada's social union," Policv Options (November 1998): 14. "'Camille Theriauk, "New Brt~nswick'sPerspective on the Social Union," Policv Options (November 1998): 22. premium on intergovemmental collaboration and establish a fair set of mies to encourage responsible action on the part of govemments that would lead to better social programs, less federal-provincial conflict, and a more accountable and democratic system. The premiers were primarily concemed about longer line-ups and delayed treatment at hospitals as a result of the federal govemment passing its cuts down to the provinces.

They therefore demanded more federal cash in the form of a Health Care Accord before any agreement on a Social Union is reached?

Like the Labour Market Development Agreements, the original impetus for the a Social Union Agreement arose fiom the report of the Ministerial Council on

Social Policy Renewal (MCSPR)created by the premiers at their annual conference in

August 1995 in St. John's, Newfoundland. The report was released in December 1995 and recommended that:

Federal activity in areas of soie provincial responsibility should occur only after federal/provincial-territorial consultation and provinciaVtemtoria1 agreement on how federal spending can be effective1y applied; As responsibilities within the federation are clarified and realigned, cornmensurate resources should also be transferred; Areas of joint federal-provinciaVterritoria1responsibility should be minimized in those instances in which this would improve the effectiveness of these programs; The use of federal spending power in areas of sole provinciaVterritorial or joint federal-provincial/temtorial responsibility should not allow the federal govemment to unilaterally dictate program design; and The federal governent should accept full responsibility for al1 prograrnming for Aboriginal peoples, both on and off reserve, with gradua1 transfer of authority to Aboriginal comrnunitie~.~'

.&ri Rosernary Speirs, "How would social union proted national programs?" Brandon Sun, 28 December 1998, p.6. 47 Canada. Ministerial Council on Social Policy Reform and Renewal, Report to Premiers, 10. Three years later, the objectives set out in this report were at the centre of

federal-provincial negotiations after having been endorsed at an FMC in June 1996. At a

1997 FMC the Prime Minister agreed to negotiations with the provinces and territories on

a Social Union Framework Agreement. The other large concern addresseci by the

MCSPR, aside fiom increased federal-provincial consultation on changes to social

prograrns, is federal "intrusion into what ought to be exclusive provincial jurisdicti~n.'~~

This inchdes the creation of new initiatives in areas such as education, health, labour

market policy, and welfare. The recent intrusion into provincial jurisdiction by the

federal govemment that has drawn the fire of many provincial governments was the

creation of the Millennium Scholarship Fund (MSF). The MSF was clearly viewed as an

intrusion into the field of education, which is an area of provincial responsibility.

It is the spending power granteci to the federal govemment under Section

36 of the Corisiiirrtiotr Act that has become the central issue. Those who espouse

provincial rights revile it, yet it is an indispensable component of the federal policy

arsenal. There are three main criticisms of the spending power: first, it is claimed that it

has become too intrusive into areas of provincial jurisdiction; second, there is the

objection that the spending power is not a prerequisite to ensuring inter-provincial co-

ordination or harmonization; third, the process by which the spending power is exercised

in unduly secretive and unilateral, and has led to many unwelcome surprises for the

provinces. Thus the provinces are lured into implementing large social programs and left

43 Robin Boadway, "Delivering the Social Union: Some thoughts oa the federal role," Policy ûptions (November 1998): 37. with the financial burden once the federal govenunent gradually withdraws its support.49

There have been various options considered in dealing with the spending power:

Guf or Limit: this involves eliminating the use of the spending power in provincial jiirisdiction or circumscribing it by requiring provincial assent. Opting uzrt allowing the provinces to opt out of federal initiatives in provincial areas t hat are created through the use of the spending power. Seniritg Provirrcial Agreement: this involves an emphasis on a new partnership in which the provinces and the federal government set ground rules, such as reaching an agreement on the national standards goveming the uses of the spending power. Regahing vertical imbuhice: re-establishing the moral and political authority necessq to using the spending power by increasing the level of transfers to the provinces. More transparent i~tstihrrionuldecision making put in place an am's length consultative processes which serve to both open the decision-making process and allow for the long-mn interests of the federation to be given their appropnate consideration. 50

Afler the Quebec provincial election of November 30, 1998, in which the

PQ and its leader Lucien Bouchard were re-elected with a majority govemment, but without winning the popular vote, the premiers renewed their calls for an FMC on the

Social Union. The feeling was that Premier Bouchard would be willing to negotiate because his lack of victory in terrns of popular vote did not give him a "winning condition" required to cal1 another sovereignty referendum. So, in an early December

1998 conference cd, the premiers instructed their chairman, Saskatchewan premier Roy

Romanow, to ask the Prime Minister for an FMC early in 1999 to discuss the restoration of federal fünding to health care before they would discuss the social union.5' This was an attempt by the premiers to exert pressure on the federal government before its February 1999 budget to increase health-care tiinding îùrther than it was intended. The concept envisioned by the provinces would allow them to opt out of programs created via the federal spending power in areas of provincial jurisdiction and receive federal cash in~tead.'~Saskatchewan premier Romanow indicated that a province would only be allowed to opt out of such a national program if it implements a similar prograrn that addresses shared federal-provincial objectives.53 This position was more restrictive than the one held by Premier Bouchard and closer to the one held by Prime Minister Chretien.

Finding new wording acceptable to both Quebec and the federal government was a large challenge. The contention that, consent of the province(s) be required before a new national social program proposeci by the federal government can go ahead was also very much at issue. The federal government argued that it would only have to submit to provincial consent for new or modified federal-provincial shared-cost program involving financiai transfers to the provinces. However, the provincial position was that any new federal program falling within provincial juridiction would require provincial consent?

For Premier Bouchard the opting out provision was a minimum demand, and he indicated early on that if the other provinces attempt to water it down he would leave the negotiations. He also indicated that al1 three parties in Quebec supported this position.55

However, Prime Minister Chretien indicated in a draft text of a social union deal dunng the waning days of the negotiations that no province would be allowed to opt out of any

" Edward Greenspon, "Premiers put heat cm Ottawa for heahhcare money," 'The Globe and Mail, 9 December 1998, A 1 ;Sheldon Alberts and Robert Fi&, ''Premiers demand Ottawa restore heatth fùnding," National Post, 9 December 1998, Al. '' "Newunion in si&" National Post, 3 December 1998, A 19. 53 Giles Gherson and John Ibbitson, "Premiers flexible on social union: Romanow," National Lst, 3 December 1998, Al. Ibld. national social program. The dr& text makes no mention of the 1996 throne speech promi se. '' The federal govemment felt that Premier Bouchard was considerabl y weakened by his loss in terms of the popular vote; therefore it could concern itself less with concocting a symbolic bargain to accommodate the provinces and get on with the

"regular" business of goveming the country."

Interestingly, days later, the Prime Minister refùsed to meet with the premiers and suggested that there was ". .. no need to have a meeting on that with the premiers.. .The pre-budget consultations are done by the ministers of finance and they have been done."'' He felt that the premiers only wanted to argue for more money for health care in the February 1999 federal budget- The Prime Minister said that he was willing to give the provinces more money for health-care, but not the FMC they had so~~ht.'~The Prime Minister had previously indicated that he had no intention of allowing the provinces to wrest control over social policy fiorn the federal government.

The bottom line of the federal government had not changed: it was unwilling to restnct the federal spending power any more that it had indicated in the 1996 throne speech. In this throne speech, the federal government had promised not to change or introduce shared-cost programs without provincial consent and compensation for those provinces that opt out."

" loel-Denis Bellavance, "Bouchard already waming he'll walk," National Post, 5 December 1998, Al, han Bryden, ''Opimg out nd in offer," Montreal G-e, 4 February 1999, A 1. " Giles Gherson, "Emboldened PM less willing to give power away," National Post, 9 December 1998, A7. 58 Robert Fife, "Chretien won't meet with premiers," National Post, 1 1 December 1998, Al. '9 Tenane Wills, 'No need to meet, PM says," Montreal Gazette, 1 1 December 1998, Al. 60 Joan Bryden, "PM firm on social union," Montreai Gazette, 3 December 1998, A 1. In early January 1999, provincial ministers and federal justice minister

Anne McLellan gathered in Halifax to reconvene discussions on the social union. A

federal spokeswoman described the Halifax meetings as "awork-in-progress.'"l

Nonetheless, Quebec minister for Canadian intergovernmental affairs, Joseph Facel,

described himself as optimistic and said, "1 think it would be beneficial for everybody if

we had an agreement on who does ~hat.'*~

Federal negotiators told their provincial counterparts that the health care money the provinces demanded might not be in the Febmary 1999 federal budget if they did not immediately sign a health accord. The provincial deputy rninisters responded by drafting their own health accord that generally kept with the demands of the federal government, but included a condition that Finance Minister Paul Martin agree to at least provide a road map for the restoration of the full $6.2 billion cut fiom federal transfers since the 1995 federal budget. The federaf government also wanted a menu of items on which any money would be spent, because federal health officials did not want their increased contribution to go into increased wages for health-care ~orkers.~~

Ontario indicated that it would not "sign any stop-gap federal-provincial accord on health-care spending that is not a part of an overall long-term reform of social

~~ending'~~Premier Mike Harris and Ontario Intergovemmental Affairs Minister

Dianne Cunningham rejected any notion of an independent agreement on health-care spending without a broader social union deal clari9ing federal and provincial powers on

" Amy Smith, "Ministers show solidarity," HaliFdx Chrmicle-Herald, 12 lanuary 1999, AS. '' Ibid. 63 Edward Greenspon, "Ottawa gets tough with provinces on health," The Globe and Mail, 15 January 1999, A 1. M John bbitson and Sheldon Alberts, "Ontario wants health accord only as part of social union," National Post, 23 January 1999, A 1. social programs. OfEcials fiom other provinces, such as Manitoba, also insisted that the

two agreements be reached together. Simultaneously, Quebec Premier Bouchard

indicated that Quebec would not sign any accord that surrendered provincial autonomy

on health care to the federal government. For Quebec, its autonorny in the area of health

care is considered brice el es^.'"^ The Quebec govement viewed the insistence on

negotiating a separate deal on health by the federal government as a thinl y veiled attempt to circumvent the social union talks. This was despite the fact that the Quebec

government signed a joint letter, with the other provinces, in which they promised to C channel any increased fbnding in health care into the Medicare system.

The federal govemment never expected that Quebec might embrace the health care accord being negotiated between the federal and provincial governments.

However, federal offkials also indicated that it was unlikely that Quebec would sign any agreement saying, "Quebec doesn't sign anything.'dd In fact, Quebec officials indicated that it was unlikely that their govemment would agree to an accord, although it would continue to participate in the task forces that examine specific issues. Moreover, one

Quebec officia1 indicated that the province had no problem endorsing the five pnnciples

of Medicare along with the other provinces, but only so long as they were not fiamed as

part of the Canada Health Act (CHA).~' The Quebec govemment does not recognke the

legitimacy of a piece of federal legislation in an area of provincial jurisdiction.

Nonetheless, the federal govemment hoped that Quebec would continue in this kind of

6' Joel-Denis Bellavance and Robert Fife, "Quebec renising to sign a deal on health spendïng," National Post, 26 January 1999, A 1. 66 Anne Mcllroy and Edward Greenspoa, "Ottawa dida't plan on Quebec's signing new health accord," The Globe and Mail, 27 January 1999, AL). 67 Ibid. "nudge-nudge, wink-~ink"~'federalism as it did with the national child benefit. In that

case the Quebec govemment monitored al1 federal-provincial negotiations and followed

the same game plan as the other provinces while objecting to the federal intrusion on

provincial turf. Another sticking point was the federal insistence on being able to

develop prograrns in provincial jurisdiction that would send money directly to

individuals, such as the MSF. The MSF offended both Quebec and other provinces like

~askatchewan.~'

Days before the Health Accord and Social Union Agreement were signed

Prime Minister Chretien indicated that while unanimity among the participants was

desirable for both accords it was not absolutely necessary. Even Saskatchewan Premier

Romanow indicated that some provinces, such as his own, might sign on to the

agreements even if others did not. The Prime Minister and the Saskatchewan premier

also suggested that agreement on every clause by al1 participants might not be necessary,

and that agreement on the major issues was enough for agreement and the construction of

a framework." One issue that also remained a sticking point was the refusa1 of the

federal government to give up unilateral authority to enforce the CHA.

The agreements ultimately came down to an FMC in Ottawa. Prior to this

FMC the negotiations had proceeded in three legs: the finance ministers met to discuss

money, the heaith ministers met to discuss the health accord, and intergovernmental

affairs rninisters met to discuss the social union agreement. This Ied Premier Romanow

68 Ibid. 69 Graham Fraser, "Jurisdiction question dies hard in Quebec," The Globe and Mail, 27 January 1999, A4. 70 Jim Brown, "Unanimity na everything - PM," Halifix Chronicle-Herald, 3 Febmary 1999, A15. to describe it as a 'Wiree-legged stool."" On the eve of the FMC Prime Minister Chretien and Finance Minister Paul Martin changed their offer concerning an increase in health transfers. The original offer increased the transfers by only Slbillion over the next year and rising to $2.5 billion over three to five years. The new scheme proposeci an increase of $3.5 billion in the first or second year. Many of the provinces, especially Quebec, looked at this offer warily, suspecting that there were strings attached. For Quebec, the offer and potential strings attached ptaced the PQ govemment in a position where it had to look at al1 possible outcornes. Regardless of its stance, it had to factor the impact of any decision either it or the federal government makes on any future sovereignty referendum and the creation of "winning condition^".'^

On the eve of the FMC the Prime Minister also sent the premiers a copy of a draft text of a social union agreement that he hoped would be endorseci by the premiers at the MC. The text included the following highlights for the process to be followed for amending or creating any new social program:

Federal and provincial governments would negotiate the objectives and national standards of the program, and if the federal government and at Ieast five provinces agreed the program would be iaunched; The federal government would give cash only to those provinces that agreed to abide by the objectives and standards; Each province would design its own programs within the context of national standards and objectives; Provinces that already have a program, for example a home-care program, would still receive their share of federal funds provided they spent it in a "related area."n

" Edward Greenspai and Graham Fraser, "PM fin& more cash to wa, provuices," lhe Globe and Mail, 3 February 1999, Al. Rhea1 Seguin, "Quebec peeks warily at pd of gd4" nie Globe and Mail. 3 February 1999, AS; Edward Greenspon, "ûttawa taps surplus for heaith sweetener," The Globe and Mail, 3 February 1999, M. In the end, alt of the provinces agreed to the Health Care Accord, which

gave more federd funds to al1 provinces and territories but allows the federal govemment

to retain legal authority over the CHA with a mediation process for the provinces to head

off disputes. Al1 provinces, except Quebec, signed the Social Union Agreement. The

lack of an opting out provision, and the willingness of the other premiers to forgo that

provision, was one roadblock to Quebec signing. Quebec aiso did not like the direct

spending section that left the federal government with the nearly unfettered right to fùture

programs like the MSF. Premier Romanow suggested to Premier Bouchard that an

asterisk could be placed over the section on direct spending allowing Quebec to be in on

the parts that it agreed with and out on the one that gave Premier Bouchard the most

tr~uble.'~However, this did not appeal to Premier Bouchard, who felt that it had to be a

deal that made sense on its own. Nonetheless, by not signing the agreement Quebec

gajned or maintained its ability to opt out of federal prograrns with compensation and

prevent direct spending by the federal government in Quebec without consultation with

the Quebec govemment. Prime Minister Chretien confirmed this by noting that even

though Quebec did not sign the agreement the federal government will treat the province

as if it had. This meant that Quebec would get al1 of the benefits of the deal without any

of its ~bli~ations.'~The Quebec government contended that it would be political suicide

for the federal govemment to introduce new social programs against its wiIl and refùse to

73 Bryden, "Opting out not in offer," A 1. 71 Edward Greenspon, "Bouchard resists fnendly persuasion," The Globe and Mail, 5 Febniary 1999, A7. 73 Anne McIlroy and Brian Laghi, "PM gets social-union deal but Quebec won't sign," nie Globe and Mail, 5 February 1999, Al. give the province its share of Quebec taxpayers' dollars, and the political pressure of such a circumstance would likely ensure that Quebec would get full compensation anyway.76

But what does happen to Quebec in the meantirne? Frankly, a lot less than meets the eye. By not signing, Quebec presumably gets away Erom living up to the mobility provisions of the social union. That means for instance that the province will maintain its policy of charging out-of-province students what they pay at home to attend its universities rather than the lower-than-average tuition fees that are the rule in ~uebec.~~

Summary

Many premiers, including Alberta's Ralph Klein, were pleased with the non-binding dispute settlement mechanism to settle disputes in areas of shared jurisdiction. The other premiers were also satisfied with the other sections of the agreement. In some sense, it was as if the ROC was defining a course for itself with only minimal thought to the impact on Quebec, as if the ROC was choosing to define a new relationship between itself and the federal governrnent. "It was as though the other provinces were telling Quebeckers that at some point they would have to follow the ROC into a new federal arrangement or go it al~ne."~'The negotiations over the health accord and social union displayed additional elements of the new era of executive federalism that differentiate it frorn previous eras of executive federalism. The lack of a need for unanimity before an agreement could be reached, and the ability of a participant (in this case Quebec) to not sign an agreement yet achieve many of the benefits as those who did

76 Rhea1 Seguin, "Behind the iàtefiil decision to leave Quebec out," The Globe and Mail, 5 February 1999, A 1. 77 chan& Hébèrt, "It's up to the provinces to show Quebec what it's misring," Ottawa Cituen, 9 Febmary 1999, A10. 78 Seguin, "Behind the fàtefûl decision to lave Quebec out," Al. sign the agreement are indicative of the differences in this new era of executive

federalism.

In the nearly nine years between Meech Lake and the Social Union

negotiations, many social groups (otherwise referred to as Charter groups) raised concerns that got some attention. They viewed the Social Union as a potential threat to the ability of the federal government to develop programs. Concern was also expressed that the Social Union negotiations provided no opportunity for public participation and that the political parties were restrained in any criticisrns they could rnal~e.'~Only

Aboriginal groups got much attention. Afier the premiers postponed a meeting with the leaders of five national Aboriginal groups to discuss the new Social Union and native issues many Aboriginal leaders felt theû peoples were being "sn~bbed."~~Aboriginal organizations felt that they should have been a part of the Social Union negotiations along side the premiers, not a pst-agreement add-on. As one aboriginal leader put it,

"We've become a bloody addendum to everything that's going on.'"' The significance of this lies first in the fact that the provinces and the federal government felt Little pressure or obligation to allow these Charter groups participate, and second that by virtue of the non-participation of these groups the processes of federal-provincial relations worked more smoothly.

Intergovemmental negotiations have generally, over the past decade, become more flexible and less of a straitjacket than they once were. As the three cases examined in this chapter demonstrate, there is a less conformist approach where al1

79 Graham Fraser, " Social union worries Meech critics," The Globe and Mail, 9 December 1998. 80 Martin O'Hanlon, "Premiers snubbing natives, leaders accuse," Halifax Chronicle-Herald, 17 Febmary 1999, A7. participants must agree to the same thing or nsk being isolated within the federation. As with Quebec in the case of the Social Union, and those provinces that have not harmonized their sales taxes, participants in these negotiations are able to not sign an agreement as it currently stands, but sign a more arnenable agreement down the road. Of course this al1 leads to a de facto asymmetry in the federation. It also leads to an easy path to reaching agreements because there is less pressure on dl participants to agree to the same thing. A participant may choose not to sign an agreement without feeling as much pressure. This was perhaps the real lesson leamed from the constitutional experiences.

" Martin O'Hanlon, "Nativespress for voice in social union talks," Halifix Chrmicle Henld, 13 Febmary 1999, A7. Conclusion

/fis the longest word in the English language, longer still in contemplating Canada's constitutional angst .'

It is indeed difficult to contemplate what might have happened ifeither the

Meec h Lake Accord or the Charlottetown Accord had been ratified. Much more dificult is to determine the shape intergovernmental relations in Canada might have taken if either of these accords had been ratified. Neither accord was ratified, yet intergovernmental relations in Canada took a marked tum in order to continue as a legitimate means of governing the federation. In terms of forging agreements, these relations became somewhat less rigid. More asymrnetry has been allowed as a result of a greater willingness by the federal government to negotiate different deals with different provinces andor temtories. It almost seems that the provinces have been allowed to pick and choose from a grab bag of items the ones on which they would like to reach an agreement with the federal government. In tum, the provinces have demonstrated a willingness to co-operate with the federal government in order to reach these agreements.

In what way did intergovemmental relations within the Canadian federation change after the defeat of the Charlottetown Accord? The federal government became much more willing to place its complete offers on the table and allow the provincial governments to select those aspects of a particular field that they wanted or felt they had the resources to assume jurisdictional responsibility. The provincial governments also became much more open to taking the level of responsibility in

' Andrew Cohen, "Revisiting the Meech Lake Accord, Ten Years Later," in Challaines to Canadian Federalism, eds. Martin Westmacoet and Hugh Mellon (Scarborough, On.:Prentice Hail Canada hc.,1998): 177. particular fields that corresponds with their available resources. The provinces were also relatively unconcemed with the fact that each province was accepting slightly different agreements, thus promoting asymmetry over equality of the provinces. The changes since the defêat of the Charlottetown Accord also brought about a greater willingness on the part of the federal govemment and al1 the provinces to accept bilaterally negotiated agreements with pater fkequency, as opposed to the seemingly requisite multilateralism of previous eras.

Why did the form of intergovernmental relations involved in al1 of the constitutional processes from the Victoria Charter to the Charlottetown Accord, known as executive federalism, change after the defeat of the Charlottetown Accord? In part the answer derives tiom a constitutional exhaustion among both the public and the participants. The larger part, however, lies in a perceived need by the federal and provincial govemments to demonstrate that processes of executive federalism could still work and that they continue to possess legitimacy in the face of ever increasing public and interest or Charter group scrutiny. This was certainly indicative of the quick tum to bilateral negotiations with Quebec to create a new immigration agreement to replace the

Cullen-Couture Agreement of 1978 soon aRer the death of the Meech Lake Accord. In order to acquire legitimacy executive federalism had to be able to reach reasonable agreements and not end in failure to reach an agreement as had happened &ce in a five year span. Dealing with one issue andior participant at a time proved to be the most productive course.

Were the constitutional rounds of the executive federal era an aberration in intergovernmental relations? Are the changes that have been observed since the defkat of the Charlottetown Accord simply a reversion to the forrn and style of intergovernmental relations before the executive era, or do they represent a red change? While bilateralism has been used before, in the case of the Tax Rental Agreements, it was much more of an aberration in that period. Currently, the use of bilateralism in reaching intergovemmental agreements is muc h more fiequent and widespread (immigration, labour-market training, sales tax harmonization etc.). Moreover, in the case of the Tax Rental Agreements the federal government of the day went to the provinces seeking agreements. Whereas? in this current period the federal government has ofTered up agreements and allowed the provinces to sign on to them, or not sign on to them, on an individual or regional basis.

Naturally, outside political forces and concerns have had an effect in al1 eras of intergovernmental relations. The concern at the tirne of the Tax Rental Agreements was building the welfare state in the immediate post-war period. In the current period, the concerns have been Quebec separatism, fiscal restraints, and retrenchment of the welfare state. Each era of intergovernmental relations is, to varying degrees, shaped by the outside political forces and concerns of the time.

The most immediate pst-Meech change for the federal govemment was the signing or re-negotiation of immigration agreements with several provinces. These agreements, as was noted earlier, were initiatives initially undertaken in the late 1970s between the failure of the Victoria Charter and the 1980 constitutional negotiations.

While Quebec reached the most extensive agreement with the federal government, the other provinces that signed similar agreements worked on what was later termed in the

LMDA negotiations as a co-management mode]. After the death of the Meech Lake

Accord, the federal government and Quebec signed the Canada-Quebec Accord of 1992 to replace the Cullen-Couture Agreement of 1978. Several other provinces followed suit

between 1 99 1 and the present. In fact, as of August 1999, ody Ontario lacks any kind of

immigration agreement with the federal governrnent. Ontario has de facto opted out of

signing such an agreement in order to preserve its view that immigration is a federal

matter and should be dealt with by the federal government, despite the fact that it receives

more than half of the immigrants to Canada.

The fact that Quebec reached a much more extensive pact with the federal government allows Quebec greater control over immigration as part of its program to increase the francophone population within its boundaries. The other provinces that signed agreements are allowed greater input into immigration decisions as they pertain to the role of immigrants in the labour market. The immigration agreements also set the stage for a shifl in how agreements were negotiated. The First Ministers' role was significantly reduced, and ministers for the affected departments andor their oficials became the primary players in the negotiations and discussions. Different affected government agencies also had oficials involved as individual negotiations required.

The pattern set by the immigration agreements was most prominently and significantly emboldened by the LMDAs. The LMDAs were also signed bilaterally with each individual province and temtory. They were unique because the first agreements were not signed by Quebec, albeit on a somewhat orchestrated basis. Alberta and New

Brunswick actually reached the fira two agreements. Moreover, Quebec was allowed to sign an "Agreement-in-Principle," something the federal govemment had initially sought to avoid. From the perspective of the federal govemment, the flexibility in this

method of federal-provincial negotiating allowed several problems to be solved

simultaneously. The federal govemment could both reduce its spending in a time of

financial restraint and constraints and could satise several provincial grievances in terms

of federal involvement in several juridictions coveted by the provinces. This was in

addition to providing a palatable solution to the federal-provincial conflict over the

purchasing of training - fiom which institution these services were to be purchased.

While these agreements create even greater de facto asymmetry, in terms of how the

division of powers actually tùnctions, within the Canadian federation it does not seem to

be the issue it was during the constitutional rounds. The key difference seems to be that

this asymmetry is acceptable so long as it is not entrenched in the straitjacket better

known as the constitution. This is despite the fact that jurisdictional asymmetry has

existed within the Canadian constitution since Confederation. Quebec was excluded

fiom the uniforrnity of laws clause (section 94) which allowed Ontario, New Brunswick

and Nova Scotia to "opt-in" to federal laws on property, civil rights and court procedure.

Section 98 regarding the selection of judges applied only to Quebec, sections 129 and

133 mandating a bilingual legislative administration and civil law system were restricted

to the Parliament of Canada and the legislature of Quebec, section 23(6) outlined more

rigid electoral restrictions for Quebec Senators, and section 9312) extended existing

education rights for Catholic minonties in Ontario to Protestant minorities in Quebec (see

Appendix B).~

Rhonda M. Parkinscm, "A Comparative Exploration of Asymmetrical Federalism: Transcending the Spectre of Provincial Equality in Canada," (MA- thesis, Dalhousie University, 1992): 24-25. The mode1 for modem jurisdictional asymmetry in Canada has been the

Canada Pension Plan (CPP) negotiations during the 1960s. Provinces had been allowed to opt-out of proposed federal-provincial agreements. The provinces have still been allowed to opt-out of the agreements reached since the Meech Lake and Charlottetown

Accords. However, the federal govemment, as was the case with the LMDAs, has been much more wiliing to display its cards on the table and leave it to the provinces to opt-in to agreements. To some extent this was atso the case with the immigration agreements signed after the Canada-Quebec Accord. The other provinces were allowed to "opt-in" as much as they wanted or could handle given the various levels of resources available to each province. Even the negotiations to reach an agreement to harmonize the GST and provincial sales taxes contained this element. Merthe agreements reached wit h both

Quebec and the three Atlantic Provinces, the door was left open to the other provinces to sign on to a similar agreement.

Until the deaths of the Meech Lake and Charlottetown Accords, asymmetry was largely considered to be constitutional recognition of essential dissimilarities present within constituent units, and to exist only to the extent that these differences are given forma1 recognition.' It has been shown here that pragmatic mechanisms, as illustrated by the agreements exarnined herein, facilitate disparities in provincial/central govemment autonomy, while preserving the formai legal equality of the constituent units. This practice has developed as a response to both the desires of provinces to recognize the "natural" dissimilarities among them and the recognition by the federal government that these dissimilarities must be allowed expression in various programs if the federation is to flourish. Given the disparate terms of union among the provinces, it is clear that the federal government had to woo some provinces into

Confederation much more than others. Special concessions, therefore, were made to

provinces such as British Columbia, Newfoundiand, and Prince Edward Island. While

the differences may not be marked enough to justïQ special status for any province

outside of Quebec, they are enough to justiQ de facto asymmetry in various

intergovernmental agreements. While Quebec will undoubtedly remain at centre stage

when it cornes to asymmetry within the Canadian federation, the differences among the

other provinces do justifL pragmatic and informa1 recognitions of asymmetry in a one-

agreement-at-a-time fashion.

The special status of Quebec is already assured de facto in most policy

areas. The problern that has arisen fias been conceptual in terms of the sense in which the

tenn "status" is used. Legal, political, cultural, and economic statuses al1 suggest

different things. Thus the question throughout the constitutional rounds had been how

much dejk special status Quebec should possess. Special status should not be

confbsed with the "rightfil assertion of a province in fields of jurisdiction, including

those that are constitutionally uncharted or judicially unexploreci, provided such fields are

equally available to al1 provinces who wish to assert themselves thereix~."~However, as

Gagnon and Garcea go on to point out, the fact that either one or several, though not dl,

of the other provinces enjoy the same "special rights" or privileges does not in itself deny

Quebec special status. Thus, by recognizing the disparities of al1 the provinces in federal-

provincial negotiations and their resultant agreements does not diminish the de facto

' Ibid, 19. '' AlainG. Gagnon and Joseph Garces, "Qwôec and the Punuit of Special Stshis," in Perspectives on Canadian Federalism, eds. R.D, Olling and M .W. Westmacott (Scarborough, On.: Prentice-Hall inc., 1988): 3 19. special status Quebec has acquired since Confederation, and especially during the last

Fony years. And the fact that this de facto recognition is only "initiatory"' and not permanent does not diminish said special status, because any government would challenge such standing at its own peril.

As Gagnon and Garcea funher indicate, the efforts by the federal govemment to get the signature of the Quebec govemment on the Constitution Act, 1982 suggest that it is cognizant of the fact that the objectives of Quebec cannot be overlooked indefinit el y. Moreover, the defeat of the Meech Lake and Charlottetown initiatives suggest that neither can the desires and objectives of the periphery regions, particularly the Western Provinces and Nedoundland, be ignored indefinitely. The other provinces have also built up significant economies that have flourished to varying degrees, and, despite the differences in objectives, have followed the lead of Quebec in efforts to maximize their economies. In short, Quebec, and following its lead, the other provinces moved towards both CO-operativefederalism and intrastate federalism in matters traditionally of federal jurisdiction and concem? Therefore, it seems the logical c hoice was to offer everybody the ability to select those elements that they wanted in particular policy fields, and to have a co-ordination role maintained by the federal government.

While unequal de facto power distributions have resulted in sirnilar demands from other provinces, such demands have not led to "the total destruction of this country [Canada], the total dissolution of the ties that bind Canada together."' While there is little doubt that the pendulum has swung quite far in favour of the provinces in

Ibid. Ibid, 3 18. terms of having a large share of the dejàcto division of powers, the point at which devolution crosses the line into an undoing in the country has never been determined. It would seem that despite federal-provincial agreements that have devolved a significant amount of power, in the de facto sense, to the provinces, the 'lies" have not yet come undone.

In fact, a sales tax harmonization that allows one province to collect both taxes? including the federal tax on behalf of the federal government, has not undone these ties. Nor did a Social Union agreement that was unsigned by Quebec. The LMDAs and immigration agreements also swung the pendulum significantly in the direction of the provinces without causing the country to drift into ten or more different pieces.

Moreover, the establishment of two blood collection systems, one for Quebec and one for the Rest of Canada, did not affect the unity of the country. In fact, the recognition of the regional disparities of the country has probably aided the cause of unity.

The federal govemment has displayed its shifi in sensibilities and approach to executive federalism in other forums too. For instance, following a

"practical agenda" the federal government pursued agreements with willing Aboriginal groups, and, where possible, provincial governments on a broad range of initiatives.

Diversity in approaches was encouraged, and the federal govemment began to favour an incremental approach to Abonginal issues.' Negotiations with individual First Nations have been replaced the process of making room at the table for the leaders of each of the

-- 7 David Bercuson in Alberta, Constitutional Reform Task Force, Restnicturina Federalism, November 23, 1990, p. 9; cited in Pahson, "A Comparative Exploration of Asymmetrical Federalism," 145. Audrey Doerr, "Federalism and Aboriginal Relations," in Cana&: The State of the Federation 1997 Non-Constitutional Renewal ed. Harvey Lazar (Kingston, On.: Institute of intergovernmental Relations, Queen's University, 1997):230. national aboriginal organizations as the preferred method of resolving, or creating a

fiamework for resolving, aboriginal issues. For the most pa* the tripartite federal-

provincial-aboriginal processes have been used. However some Aboriginal communities have preferred a bilateral process with federal and provincial governments respectively.

In British Columbia, the Nisga'a First Nation was one of the first groups to reach an agreement-in-principle with the governments of Canada and British Columbia, which provided the fiamework and basis for substantive negotiations on a range of specific subject matters.

The conduct of tripartite negotiations in British Columbia may be viewed as a real breakthrough in intergovemmental CO-operation. After years of denying the existence of any aboriginal rights and any need for provincial involvement in earlier federal negotiations with First Nations, the provinces are fidl partners at the negotiating table.9

In each of the three Prairie Provinces the provincial governrnents have come to play formal roles in broader treaty-based discussions, including self-government, with First Nations. In 1996, Canada, Manitoba, and 19 First Nations reached an agreement-in-principle on treaty land entitlement issues for those communities. In New

Brunswick, First Nations have participateci in the New Brunswick Federal-Provincial-

Aboriginal Joint Economic Development Initiative (JEDI). This agreement has allowed federal, provincial, and aboriginal officiais to contribute to aboriginal economic development in New Brunswick. Such agreements, although non-constitutional, have given the place of aboriginal govemments in Canadian federalism a clearer, practical definition, and non-aboriginal govemment have generally become supportive of

Ibid, 233. intergovemmental undertakings of a practical nature. 'O The central objective has been to reach agreements on self-government as opposed to legal definitions of the inherent right, as the constitutional rounds had attempted. The federal govemment recognized that in some areas detailed arrangements would be required, but in others a more general recognition of Aboriginal jurisdiction would be sufficient." In other words, like intergovemmental agreements with the provinces, the circumstances of Aboriginal peoples across the country are vastly different and implementation of the inherent right canot be a "one-size-tits-all" form of self-government.

The case studies indicate that a new era in intergovemmental relations in

Canada has emerged. How one describes the new era remains a subject for discussion.

For Our purposes here executive federalism has been replaced by what can be temed

"fiinctional" or "pragmatic" federalism. This new era has several important characteristics that differentiate it from both its "CO-operative" and "executive" predecessors. These characteristics include:

Less reliance on the First Ministers to hammer out deals in a naturally adversarial setting, and increased negotiation of agreements by the ministers of the effected departments and their oficials; this also takes advantage of cornmonalties among ministers and officiais who frequently have similar backgrounds; A greater willingness to accept agreements that are less comprehensive, and leave contentious issues to be worked out over tirne as part of an on-going process; A greater willingness to accept agreements that do not conforrn to the idea of provincial equality - allowing different provinces to accept different levels of control and/or responsibility in particular policy fields thus enhancing asymmetry; Allowing provinces to "opt-in" to the federal proposais laid on the table, and the requisite federal willingness to iay al1 of its cards on the table for the provinces to see.

'O Ibid, 239. 'l Canada. Department of indian Affiin and Northem Development. Aboriginal Self- Government nie Govemmerit of Canada's h~roachto Imlementatioa of the inherent Ri& and the Negatiation of Aboriainal SelfGovemment (Ottawa: Minister of Supply and Services, 1995): 5-6. This thesis argues that these characteristics dramatically differentiate this

"fùnctional" federalism fiom the executive federalisrn displayed dunng the constitutionai

rounds as well as the CO-operativefederalism witnessed in the penod prior to the late

1960s. Even the recent Social Union negotiations, despite being concluded by the First

Ministers, were negotiated largely by ministers responsible for health, intergovenmental

affairs, and various social prograrns. However, the final accord was also unable to satisQ al1 grievances, because Quebec chose not to opt-in to the package despite opting-in to a companion health accord. Nonetheless, the case studies also indicate definite limits to the degree to which federal-provincial negotiations can allow one province to sign an agreement that is dramaticall y different from that signed another provinces or al1 of the other provinces. What this new found flexibility allows is a recognition of the disparities between each province or tercitory, and an asymmetrical division of powers in the de facto sense, so that particular policy areas can be better tailored to the needs of the citizens of each province or temtory.

The magic line that many supporters of the provincial equality doctrine fear is the point of no retum in the undoing of Canada remains undefined. Power in various fields has been devolved to the provinces, both symmetrically and asymmetrically, to allow some of them the potential to becorne self-suficient; yet the

"ties" that these fields represent appear to remain in tact. Greater flexibility in federal- provincial relations can only better serve the tùnctioning of the country as a whole. The

First Ministers, or their ministerial representatives, still participate in federal-provincial negotiations as equals. This remains unaffected either by any shift in de facto powers to some provinces and noi others, or by variations in the shifts tiom province to province. Any inequality in the de facto division of powers only affects what each province can do in particular policy areas within its boundaries, and in cornparison to what other provinces can do in the same policy areas.

Still there remain at least two significant unknowns that relate to this shift in executive federal relations. First, there is the question of whether this pragrnatic and asy mmet rical evolution of Canadian executive federali sm could be derailed by events such as a hture referendum on sovereignty within the province of Quebec. This is possible, although this fûnctional federalism seems to fit nicely as part of the Plan A-Plan

B approach taken by the federal government towards Quebec sovereignty. The functional and flexible Plan A approach appears to be the carrot used to lure Quebec into remaining in the federation by demonstrating how the federation can be made to work and accommodate the aspirations of al1 of its members. The tough stance of Plan B is the stick to be used to demonstrate that should Quebec choose sovereignty that Canada would not make negotiations easy. This Plan A-Plan B approach also demonstrates to the other provinces that the federal government is willing to make the federation more flexible and accommodating of their needs and aspirations. However, if any of the other provinces become too intransigent the federal government is also prepared to be tough on them in terms of transfers, fùture negotiations, etc. The changes in the processes of intergovernmental relations, outlined in this thesis, wuld be derailed by a sudden development of winning conditions for a Quebec sovereignty referendum. This flexible approach could quickly revert to the Plan B approach of being tough with the provinces, especially Quebec. Something as simple as a burning of the Quebec flag could create such conditions. The second question is one of access by various groups, particularly the

Charter groups, to the intergovernmental process. And, does the lack of access to the process afTorded these groups represent a lack of democracy? Would paralysis result if the process was made more accessible to these groups? As was indicated in the opening chapters, these groups really lack a basis for asserting any right of access to intergovernmental processes. The intergovernrnental process is about governments and the division of jurisdictions arnong the- either de juré or de facto, and not among peoples. While the Charter guarantees various groups certain rights, it does not grant them privileged access to the processes of govemment, including intergovernmental processes. Restricting access to intergovernmental processes does not represent a lack of democracy. In fact, there is no loss of democracy through such restrictions because interested &or af??ected groups have other points of access through which they can influence the outcomes. The main one is through the legislatures to which the participants in intergovernmental processes are accountable, and the forum through which these participants in intergovemmental processes can be lobbied and influenced.

Finally, direct participation by these groups in intergovernmental processes would most

IikeIy lead to one of two outcomes: either a) there would be little consensus and paralysis of the process would result; or, b) something would be made available to everyone resulting in a scenario simiîar to that of the Charlottetown Accord. Yet, there is the notion of participatory democracy favoured by such groups that mns contrary to this idea of representative democracy. Such a view could derail the processes of intergovernmental relations if they are able to rnobilize enough public support for their cause. The recent Hepatitis-C package provides a very good example of how a group that is able to articulate its views very well and win public sympathy can at least interrupt intergovernmental processes and force change ancilor their inclusion in the processes.

The case studies demonstrate a mark4 improvement in the ability of federal-provincial relations to achieve varying degrees of agreement. In the end not dl provinces need to sign on to an agreement, or al1 aspects of an agreement, for it to be considered successfÙ1. The AIT, for instance, is an example of the flexibility that this change in intergovemmental relations has brought. The participants in the negotiations were unable to corne to agreement on several issues so they achieved agreement in those areas in which agreement could be sought and agreed to maintain an ongoing process to reach agreement on the other issues. Success cornes fiom the ability of each government to rnove forward in the particular policy area as a result of the agreement. In al1 the cases examined in this thesis al1 governrnents have been able to move foward afier the agreements were signed. Whether or not they were "on the same train" is largely irrelevant to the determination of success. Appendices Appendix A - Tables

Federal Prince Edwtrrd Island British Columbia Nova Scotia Newfoundland Requirements Agreement Agreement A~reement Agreement Scope of agreement: Continued federal Continued federal Continued federal Continued federal confined to Part 11 of the delivery delivery initially delivery delivery El Act Work in concert in Work in concert in Strategic partnership to Co-management of program design and program design and i mprove respect ive program design and implementation implementation labour Market programs implementation Possible provincial and services responsibility for Pari Not limited to Part II (no II benefits and transfer of responsibility) measures subject to hture negotiations Description of Programs Continued federal Continued federal Continued federal Continued federal delivery of five active delivery of five active delivery of five active delivery of ftve active measures measures at present measures measures time Program Funding No transfer of funds No transftr of funds No transftr of funds No transfer of funds Available to Provinces at the present timc Allocation to program Allocation to program Allocation to program Allocation to program hnding: funding: hnding: funding:

97-98 : $1 7.8M 97-98: $205.9M 97-98: $85.8M 98-99: $21,1M 98-99: $247.3M 98-99: $1 06.3M 99-00: $22.8M 99-00: $265,9M 99-00: $1 15.8M 00-0 1 : no less-year 3 00-0 1 : no les-year 3 00-0 1 : no less-year 3 0 1-02: no less-year 3 0 1-02: no less-year 3 0 1 -02: no less-year 3 1 Federal 1 Prince Edward Island British Columbia 1 Nova Scotia 1 Newfoundland Requirements 1 Agreement Agreement 1 Agreement Agreement I Results measures: Targets for 1997-98: Targets for 1997-98: Target s for 1 997-98: Targets for 1997-98:

El claimants served 4,421 claimants 65% of clients 12,469 claimants 16,500 claimants Retums to employment 1,800 EI clients 25,008 El clients 6,lO4 El clients 4,400 returns to Savings to El account rn S7.8M $lt7.4M $26.6M employ ment $15.OM Reasonable Job Offers for rn no transfer of federal rn no transfer of federal no transfer of federal no transfer of federal Federal Staff Transferred staff to province staff to province for staff to province staff to province 1997-98; possibly afler September '98 dependent on potential fiiture ne~otiations Administrative Resources rn no resource transfer Canada agrees to No resource transfer No resource transfer utilize administrative Canada agrees to Canada to support resources outlined in utilize administrative agreement with Sept. 25, 1997 letter resources outlined in administrative from DM Sept. 25, 1997 letter resources (up to 177 from DM FTEs) Federal Visibility continued federal continued federal continued federal continued federal 1 delivery delivery for now delivery delivery joint public joint public joint public joint public in format ion, information, in format ion, in format ion, announcement of announcement of announcement of announcement of I agreement I agreement I agreement agreement Federal Prince Edward Island British Columbia Nova Scotiri 1 Newfoundland Requirements Agreement Agreement I Agreement Agreement Language continued federal continued federal continued federal continued federal delivery therefore delivery for now; delivery therefore delivery t herefore Official Languages Act therefore Official Official Languages Act Official Languages Act continues to apply Languages Act continues to apply continues to apply continues to apply Ongoing federal role in Canada is partner in Canada is partner in Canada to collaborate Canada is partner in labour market CO-managementof Part CO-managementof Part and coordinate efforts CO-managementof Part development sector II II to improve client II Continued federal Continued federal services for range of Continued federal delivery of al1 other delivery of al1 other federal and provincial delivery of al! other programs programs programs programs Canada retains Canada retains Continued federal Canada retains exclusive exclusive delivery of al1 exclusive responsibility for pan- responsibilities for proparns responsibilities for Canadian labour pan-Canadian labour pan-Canadian labour market activities market activities market activities Quality and Accessible continued federal continued federal continued federal , continued federal Programs and Services program delivery program delivery for program delivery program delivery now I Minimum residency continued federal continued federal continued federal continued federal requirement prohibited program delivery program delivery for program delivery delivery now 1 Federal 1 Prince Edward Island 1 British Columbia 1 Nova Scotia 1 Newfoundland Reguirements Agreement Agreement Agreement 1 Agreement Termination Provision: agreement incorporates agreement incorporates Requirement met Requirement met One year's notice afler two year termination two yr, Termination Two year termination first three years. (Option option OPt option available of two years' notice) intention to neg. dev. A~reement:Sept. 19%

Source: Adapted fiom Canada-Saskatchewan Agreement- on Labour Market Development, Canada-Newfoundland and Labrador Agreement on Labour Market Develooment, Canada-Manitoba Agreement on Labour Market Development, Canada-British Columbia Agreement on Labour Market Develo~ment,Canada-Alberta Agreement on Labour Market Develooment, Canada-New Brunswick Agreement on Labour Market Development, an ad ah lova Scotia ~preementon a Framework for ~trate~ic-~artnership. Canada-Québec Labour Market Agreement in Principle. Table 2 - Highlights of Labour Market Development Agreements - Devolutionary Model

Federal Quebcc Manitoba New Brunswick Alberta Requirements Agreement-ln-Principle Agreemtnt Agreement Agrtcmtnt Scope of agreement: Provincial Provincial Provincial Provincial confined to Part of the EI responsibility for Part responsibility for Part responsibility for Part responsibility for Part Act II benefits and II benefits and II benefits and II benefits and measures measures measures measures Commitment to Commitment to Commitment to Commitment to eliminate overlap and coordinate federal and coordinate federal and coordinate federal and duplication in HRDC's provincial youth provincial youth provincial youth CRF employment programs programs programs programs Stress partnership with Reference to Aboriginal groups Abori~inalpeoples Description of Programs O provincial delivery of provincial delivery of provincial delivery of provincial delivery of five activities: four benefits: five active measures five active measures - preparation for - wage subsidies designing provincial designing provincial employ ment - employment programs programs - integration partnerships - maintenance - self-employment - direct job creation assistance - stabilization - skills loans and grants Federal Quebec Manitoba New Brunswick Alberta Requirements Agreement-In-Principle Agreement Agreement Agreement Program Funding Resources to be Resources to be Resources to be Resources to be Available to Provinces transferred (El): transferred (El): transferred (El): transferred (El): 97-98: $457.3M 97-98: $46.3M 97-98: $66.4M 97-98: $97.5M 98-99: $527.0M 98-99: $48.7M 98-99: $78.1M 98-99: $107SM 99-00: $559.4M 99-00: $49.5M 99-00: $83.6M 99-00: $1 12.1M 00-0 1: no less-year 3 00-0 1 : no less-year 3 00-0 1 : no less-year 3 00-0 1 : no less-year 3 0 1-02: no less-year 3 0 1-02: no less-year 3 0 1-02: no less-year 3 0 1-02: no less-year 3 Commitment to review to be amended (if prov. to be amended (if prov. to be amended (if prov. global financing within agrees) to ext. fùnding Agrees) to ext. fùnding agrees) to ext. funding 24 months of si~ning stability to 5 years stability to 5 years stability to 5 years Results measures: Targets for 1997-98: Targets for 1997-98: Targets for 1997-98: Targets for 1997-98:

El claimants served Parties agree on three 65% of clients 65% of clients 65% of clients Retums to employment primary indicators 5,100 El clients 7,947 retunis M,48 1 retums Savings to El account Parties to discuss $36.3M S25.86M $99.8M specific targets in implementation agreement Reasonable Job Offers for 1084 FTEs to be 120 staff to be 170stafftobe Federal Staff Transferred transferred transferred t ransferred t ransferred 3 year employment 3 year employment 3 year employment 3 year employment and salary guarantees and salary guarantees and salary guarantees and salary guarantees Administrative Resources $53.6M $5SM $8,4M $8.9M Federal Quebec Manitoba New Brunswick Alberta Reauirements Agreement-In-Principle Agreement Aareement Agreement Federal Visibility public to be informed Manitoba to give Province to give public Province to give public of respect ive recognition of recognition of recognition of government roles, Canada's financial role Canada's financial role Canada's financial role particu lady Canada's Mechanisms specified: Mechanisms speci fied: Mechanisms specified: financial contribut ion - information - information - information and responsibility of - signage - signage - signage Quebec through - Canada logo on - Canada 1080 on - Canada logo on various cheques and deposit cheques and deposit cheques and deposit communication cheques cheques cheques vehicles (e.g. information in offices where services delivered; written notice to participants) Language services to individuals Programs and NES in Agrees to offer Agrees to offer in English upon either official language services in both services in both request where significant official languages on official languages reasonable access to demand demand OLA will serveas active employment Services in either guideline for criteria in measures in English official language in determining significant hnctions of NES to be accordance with FLSP demand made available in OLA as guideline for Communities to be French and English criteria in determining consulted on Canada to assume significant demand determination of written communication Communities to be signi ficant demand with corporations in consulted on program context of NES delivery issues Federal Quebec Manitoba New Brunswick Alberta Requirements Agreement Agreement Agreement Ongoing federal role in Canada responsible Canada responsible for Canada responsible for Canada responsible for labour market for: Part 1 and national Part 1 and national Part 1 and national development sector - mobility aspects of labour aspects of labour aspects of labour - national sectoral market development: market development: market development: councils Mobility mobility mobility - operation of national national sectoral national sectoral national sectoral LM1 and labour councils councils councils exchange systems operation of national operation of national operation of national - pan-Canadian LM1 and labour LM1 and labour LM1 and labour activities exchange systems exchange systems exchange systems pan-lanadian pan-lanadian panCanadian activities activit ies activities Quality and Accessible convenient client 6 appropriate and commitment to high commitment to high Programs and Services access responsive programs quality and effective, quality and effective, courteous and rapid for Manitobans efficient programs efficient programs service commitment to high client service client service flexible and innovative quality and effective, principles principles approaches efficient programs respect for human client service dignity principles priority attention to groups with specific needs Minimum residency federal requirement federal requirement federal requirement federal requirement reauirement ~rohibited met met met met Federal Quebec Manitoba New Brunswick Al berta Requirements Agreement-In-Principle Anreement A~reement Anreenien t Termination Provision: federal requirement federal requirement federal requirement federai requirement One year's notice after met (unilateral federal met met met first three years (Option of termination possible) agreement to be agreement to be agreement to be two years' notice) following results amended to reflect amended to reflect amended to reflect review in first three Quebec AIP Quebec AIP Quebec AIP years, each party can two year termination two year termination two year termination teminate with two option available option available option available year notice parties will jointly review results, accountability, fhancing and resources during the first three years

Source: Adapted from Canada-Saskatchewan Agreement on Labour Market Deveiopment, Canada-Newfoundland and Labrador Anreement on Labour Market Development, Canada-Manitoba Agreement on Labour Market Develooment, Canada-British Columbia Agreement on Labour Market Develooment, Canada-Alberta Agreement on Labour Market Development, Canada-New Brunswick Anreement on Labour Market Develo~ment,CanadaNova Scotia Agreement on a Framework for Strategic Partnerships. Canada-Ouébec Labour Market Agreement in Principle. Appendix B - Excerpts of Constiîution Act, 1867

VI. DISTRLBUTION OF LEGISLATIVE POWERS

Powers of the Parliament

9 1. It shall be lahlfor the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make laws for the Peace, Order, and good Government of Canada, in relation to al1 Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby deciared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parhament of Canada extends to al1 Matters coming within the Classes of Subjects nex-t hereinafter enurnerated; that is to Say,-

1. Repealed. (44)

IA. The Public Debt and Property. (45)

2. The Regulation of Trade and Commerce.

2A- Unemployment insurance. (46)

3. The raising of Money by any Mode or System of Taxation.

4. The borrowing of Money on the Public Credit.

5. Postal Service.

6. The Census and Statistics.

7. Militia, Military and Naval Service, and Defence.

8. The fixing of and providing for the Salaries and Allowances of Civil and other Offkers of the Government of Canada.

9. Beacons, Buoys, Lighthouses, and Sable Island-

10. Navigation and Shipping.

1 1. Quarantine and the Establishment and Maintenance of Marine Hospitals.

12. Sea Coast and Inland Fisheries.

13. Ferries between a Province and any British or Foreign Country or between Two Provinces.

14. Currency and Coinage.

1 5. Banking, Incorporation of Banks, and the Issue of Paper Money.

1 6. Savings Banks-

17. Weights and Measures.

1 8. Bills of Exchange and Promissory Notes.

19. Interest.

20. Legal Tender.

2 1. Bankmptcy and Insolvency.

22. Patents of Invention and Discovery.

23. Copyrights.

24. Indians, and Lands reserved for the Indians.

25. Naturalization and Aliens.

26. Marriage and Divorce.

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

28. The Establishment, Maintenance, and Management of Penitentiaries.

29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

And any Matter coming within any of the Classes of Subjects enumerated in this section shall not be deemed to corne within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.(47)

Exciusi ve Powers of Provinciai Legislahrres. 92. In each Province the Legislature may exclusively make Laws in relation to Maîters coming within the Classes of Subject next hereinafter enumerated; that is to Say,-

2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.

3. The borrowing of Money on the sole Credit of the Province.

4. The Establishment and Tenure of Provincial Oflices and the Appointment and Payment of Provincial Oficers.

5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.

6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.

7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

8. Municipal Institutions in the Province.

9. Shop, Saloon, Tavem, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.

10. Local Works and Undertakings other than such as are of the following Classes:--

(a) Lines of Steam or other Ships, Railways, Canals, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province;

(b) Lines of Stearn Ships between the Province and any British or Foreign Country;

(c) Such Works as, although wholly situate within the Province, are before or afier the Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

1 1. The Incorporation of Companies with Provincial Objects.

12. The Solernnization of Marriage in the Province. 13. Property and Civil Rights in the Province.

14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

15. The imposition of Punishment by Fine, Penalty, or imprisonment for enforcing any Law of the Province made in relation to any Matter corning within any of the Classes of Subjects enumerated in this Section.

16. Generally al1 Matters of a merely local or private Nature in the Province.

Nor I-Rerw wabke Natirral Resm~rces,Foresrry Resmrces and Electrical Etwrgy .

92A. (1) In each province, the legislature may exclusively make laws in relation to

(a) exploration for non-renewable natural resources in the province;

(b) development, conservation and management of non-renewable resources naturd resources and fore- resources in the province, including laws in relation to the rate of primary production therefiom; and

(c) developmentyconservation and management of sites and facilities in the province for the generation and production of electrical energy.

(2) In each province, the legislature may make laws in relation to the export fiom the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production fiom faci lities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada.

(3) Nothing in subsection (2) derogates fiom the authority of Parliament to enact laws in relation to the matters refend to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict.

(4) In each province, the legislature may make laws in relation to the raising of money by any mode or system of taxation in respect of

(a) non-renewable natural resources and forestry resources in the province and the primaq production therefiom, and

(b) sites and facilities in the province for the generation ofelecvical energy and the production theretiom, whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province.

(5) The expression "primary production" has the meaning assigned by the Sixth Schedule.

(6) Nothing in subsections (1) to (5) derogates from any power or rights that a legislature or government of a province had immediately before the coming into force of this section.(49)

93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:-

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

(2) A11 the Powers, Pnvileges and Duties at the Union by Law conferreci and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec:

(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is therafler established by the Legislature of the Province, an Appeal shall lie to the Govemor General in Council fiom any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education:

(4) In case any such Provincial Law as from Time to Time seems to the Govemor General in Council requisite for the Execution of the Provisions of this Section is not made, or in case any Decision of the Govemor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Govemor General in Council under this Section.(SO)

Ut~~$ionniiyof Luws in Ontario, Nova Scottu and New Bnotswick.

94. Notwithstanding anything in this Act, the Parliament of Canada may make Provision for the Unifonnity of al1 or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of al1 or any of the Courts in Those Three Provinces, and fiom and &er the passing of any Act in that Behalf the Power of the Parliament of Canada to rnake Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making Provision for such Uniformity shail not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof

Ofd Age Petisions.

94A. The Parliament of Canada may make laws in relation to old age pensions and supplementary benefits, including survivors, and disability benefits irrespective of age, but no such Iaw shall affect the operation of any law present or future of a provincial legislature in relation to any such matters.(S 1)

Agriadiure and Immigration.

95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time Make Laws in relation to Agriculture in al1 or any of the Provinces, and to Immigration into al1 or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far as it is not repugnant to any Act of the Parliament of Canada.

VII. JUDICATURE

98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province.

K. MISCELLANEOUS PROVISIONS

129. Except as othenvise provided by this Act, al1 Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and al1 Courts of Civil and Criminal Jurisdiction, and al1 legal Commissions, Powers, and Authorities, and al! Oficers, Judicial, Administrative. and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exia under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or aitered by the Parliarnent of Canada, or by the Legislature of the respective Provinces, according to the Authority of the Parliament or of t hat Legislature under this Act@)

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parfiament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journais of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing fiom any Court of Canada established under this Act, and in or fiom al1 or any of the Courts of Quebec.

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Knox, Robert H. "Economic Integration in Canada Through the Agreement on Intemal Trade." In Canada: The State of the Federation 1997 Non-Constitutionai Renewal, ed. Harvey Lazar, 137- 168. Kingston, On.: hstitute of Intergovemmental Relations, Queen's University, 1998.

McRoberts, Kenneth. 'Vnilateralism, Bilateralism, and Multilateralism: Approaches to Canadian Federalism." In Intergovernmental Relations, research CO-ordinator Richard Simeon, 7 1- 130. Toronto and Ottawa: University of Toronto Press in co- operation with the Royal Commission on the Economic Union and Development Prospects for Canada and Supply and Services Canada, 1990. MeIlon, Hugh. 'The Complexity and Competitiveness of Fiscal Federalism: Blending the GST with Provincial Sales Taxes." In Challenaes to Canadian Federalism, eds. Martin West macott and Hugh Mellon, 1 57- 170. S&orough, On. : Prentice-Hall Canada Inc., 1998.

Parkinson, Rhonda M. "A Comparative Exploration of Asy metrical Federalism: Transcending the Spectre of Provincial Equality in Canada." M.A.thesis, Dalhousie University, 1992.

Price Boase, Joan. ''Constitutional Change as a Political Issue." In Canadian Politics, eds. James P. Bickenon and Alain-G. Gagnon, 2"ded., 3 89-408. Peterborough, On.: Broadview Press, 1994.

Russell, Peter H. 'The End of Mega-Constitutional Politics in Canada?" En The Charlottetown Accord, the Referendum, and the Future of Canada, eds. Kenneth McRoberts and Patrick Monahan, 21 1-221. Toronto: University of Toronto Press, 1993.

Schwanen, Daniel. "Ove~ewand Key Policy Issues," in Gettino There An Assessrnent of the Agreement on Interna1 Trade, eds. Michael Trebilcock and Daniel Schwanen, 1 - 19. Toronto: C.D. Howe Institute, 1995.

Schwartz, Bryan. "Assessing the Agreement on Internai Trade: The Case for a 'More Perfect Union'." in Canada: The State of the Federation 1995, eds. Douglas M. Brown and Jonathan W. Rose, 189-220.

Simeon, Richard. 'Why Did the Meech Lake Accord Fail?" In Canada: The State of the Federation 1990, eds. Ronald L. Watts and Douglas M. Brown, 15-40. Kinston, On.: Institute of Intergovemmental Relations, QueenYsUniversity, 1990.

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Stevenson, Garth. 'The Origins of Co-operative Federalisrn." In Federalism and Political Communitv Essavs in Honour of Donald Smilev, eds. David P. Shugarman and Reg Whitaker, 7-32. Peterborough, On.: Broadview Press, 1989.

Stoyko, Peter. "Creating Opportunity or Creative Opportunism? Liberal Labour Market Policy." In How Ottawa Spends 1997-98 Seeina Red: A Liberal Report Card, ed. Gene Swirnrner, 85-1 10. Ottawa: Cadeton University Press, 1997. Theriault, Camille. "Wew Brunswick's Perspective on the Social Union." Policv O~tions (November 1998): 20-23.

Trebilcock, Michael, and Rambod Behboodi. 'The Canadian Agreement on Intemal Trade: Retrospect and Prospects." In Gettin~There An Assessment of the Agreement on Intemal Trade, eds. Michael Trebiiwck and Daniel Schwanen, 20- 89. Toronto: C.D. Howe hsti~e,1995.

Vernon, Richard. "'The Federal Citizen." In Perspectives on Canadian Federalism, eds. R.D. Olling and M. W. Westmacott, 3- 15. Scarborough, On-: Prentice-Hall Canada Inc., 1988.

Vineberg, R. A. "federal-Provincial relations in Canadian Immigration." Canadian Public Administration 2 (Summer 1987): 299-3 17.

Whitaker, Reg. 'The Dog That Never Barked: Who Killed Asymmetrical Federalism?" In The Charlottetown Accord, the Referendum and the Future of Canada, eds. Kenneth McRoberts and Patrick Monahan, 107-1 16. Toronto: University of Toronto Press, 1993.

Newspaper Articles

Alberts, Sheldon, and Robert Fife. "Premiers demand Ottawa restore health fùnding." National Post, 9 December 1998, Al.

April, Pierre. 'Bourbeau fait l'unanimité sur le repatnement de tous les pouvoirs touchant la main-d'oeuvre." Le Devoir, 14 December 1990, A2

Bailey, Ian. "Martin eager to wed GST, provincial taxes." Halifax Chronicle-Herald, 23 Marc h 1 996, Ag.

Bellavance, Joel-Denis. 'Bouchard already warning he'll walk." National Post, 5 Decem ber 1 998, A 1.

,and Robert Fife. "Quebec refùsing to sign a deal on health spending." National Post, 26 January 1999, Al.

Bramham, Daphne. W.C. wants to keep hold on labor, environment." The Vancouver

-7Sun 19 March 1993, D2.

Brown, Jim. 'Vnanimity not everything - PM." Halifax Chronicle-Herald, 3 February 1999, A15.

Bryden, Joan. TMfirrn on social union." Montreal Gazette, 3 December 1998, Al. Wpting out not in offer." Montreal Gazette, 4 February 1999, A 1.

Carrick, Rob. 'M~artinblames provinces for GST inaction-" Halifax Chronicle-Herald, 12 March 1996, C3.

Coyne, Andrew. cTederalism works! We have it on the highest authority." The Globe and Mail, 25 July 1994, A1 0.

Du@, Andrew. "Ontario, B.C.want equal immigrant deal: Quebec gets more than its share of federal money for newcomers." The Hamilton Spectator, 28 February 1997, B2.

Ferguson, Jonathan. 'Talks rnay wipe out our trade barriers." Toronto Star, 18 March 1993, Cl.

. 'Zankin sees 'tremendous progress ' in interprovincial trade agreement." Toronto Star, 27 May 1994, El.

- "Canada-wide pact downs trade walls." Toronto Star, 29 June 1994, A 1 1.

Fife, Robert. "Chretien won? meet with premiers." National Post, 11 December 1998, Al.

Fraser, Graham. "Social union womes Meech crïtics." The Globe and Mail, 9 December 1998, A4.

ccJurisdictionquestion dies hard in Quebec." The Globe and Mail, 27 January 1999, A4.

Gherson, Giles. "A less-than-comprehensive trade deal that's nothing but loopholes." The Globe and Mail, 29 June 1994, A22.

,and John Ibbitson. 'Premiers flexible on social union: Romanow." National Post, 3 December 1998, Al.

. Tmboldened PM less willing to give power away." National Post, 9 December 1998, A7.

Greenspon, Edward. Harcourt relents dercalls fiom PM." The Globe and Mail, 14 July 1994, A2.

. "Young p1edges move out of training." The Globe and Mail, 1 March 1996, A4.

'Wew cash may win GST deal." The Globe and Mail, 23 March 1996, A4. - "Quebec gets job-training role Ottawa cedes control." The Globe and Mail, 2 1 April 1997, A7.

. 'TM'S training plan being tailored for Quebec." The Globe and Mail, 29 May 1996, A4.

. "Ottawa offers provinces control of job program." The Globe and Mail, 3 1 May 1996, A4.

. 'Discord over GST on agenda for talks." The Globe and Mail, 17 June 1996, Al.

,and Scott Feschuk, 'Ottawa offers immigration deal, Ontario, B.C., Alberta being wooed with expanded control, more cash to ease grievances." ïhe Globe and Mail, 27 February 1997, Al.

- "Premiers put kat on ûttawa for healthcare money." The Globe and Mail, 9 December 1998, Al.

. "Ottawa gets tough with provinces on health." The Globe and Mail, 15 January 1999, Al.

, and Graham Fraser. 'PM finds more cash to ww provinces." The Globe and -Mail, 3 February 1999, Al.

. "Ottawa taps surplus for health sweetener." The Globe and Mail, 3 Febmary 1999, A5.

. 'T3ouchard resists fnendl y persuasion." The Globe and Mail, 5 February 1999, A7.

Hébert, Chantal. "It's up to the provinces to show Quebec what it's missing." Ottawa Citizen, 9 Febniary 1999, A10.

Ibbitson, John, and Sheldon Alberts. 'antario wants health accord only as part of social union." National Post, 23 January 1999, Al.

Laghi, Brian. "Western premiers criticize GST deal." The Globe and Mail, 5 June 1996, Al.

"Aiberta vows UI swings job-training deal." The Globe an Mail, 7 December 1996, A4.

Madill, Dale. "Boudreau keen on merging taxes." Halifax Chronicle Herald, 22 March 1996, Al. McCarthy, Shawn. "Consensus on trade b-s elusive." Toronto Star, 19 Januq 1994, CS.

Mcllroy, Anne, and Edward Greenspon. "Ottawa didn't plan on Quebec's signing new health accord." The Globe and Mail, 27 January 1999, A4.

,and Bnan Laghi. 'TM gets social-union deal but Quebec won't sign." me Globe and Mail, 5 February 1999, A 1.

McKenna, Barrie. "Minister stresses interprovincial gains." The Globe and Mai 1, 28 June 1994, B3.

- "Oficials scramble on trade deal." The Globe and Mail, 13 July 1994, B3.

. "'Trade deal marks milestone for Madey." The Globe and Mail, 18 July 1994, BI.

. "Ottawa hopes to boost intemal fiee trade." The Globe and Mail, 29 November 1995, B2.

McKenzie, Robert. "Statistics on fùture of French alanning." Toronto Star, 14 May 1991, A15.

Mittelstaedt, Martin. 'Warrïs proposes national sales tax." The Globe and Mail, 1I April 1996, Al.

,and Bame McKenna. "Ontario blocks plan for blended national tax." The Globe and Mail, 25 April 1996, A 1 .

"The nation-tinkerers versus the trade bamers." Editorial. The Globe and Mail, 20 July 1994, A18.

07Hanlon, Martin. ''Natives press for voice in social union talks." Halifax C hronicle- Herald, 13 February 1999, A7.

. "Premiers snubbing natives, leaders accuse." Halifax Chronicle-Herald, 17 February 1999, A7.

Oziewicz, Estanislao. "Immigration pact called step fonvard." The Globe and Mail, 6 February 1991, A7.

Roberts, David, and James Rusk. 'Premiers attack GST harmonization." The Globe and Mail, 2 May 1996, A6.

Seguin, Rheal. 'Tarizeau offers to collect more federal taxes." The Globe and Mail, 12 May 1995, A6. - 'Quebec agrees to manpower talks." The Globe and Mail, 5 December 1995, A4.

. "Quebec peeks waril y at pot of gold." The Globe and Mail, 3 February 1999, AS.

. 'Behind the fatefùl decision to lave Quebec out." The Globe and Mail, 5 February 1999, A 1.

Smith, Amy. "Ministers show solidarity." Halifax C hronicle-Herald, 12 January 1999, AS.

Speirs, Rosemary. "How would social union protect national programs?' Brandon Sun, 28 December 1998,6.

Thornpson, Allan. "Provinces win partial accord on tiee trade." Toronto Star, 28 lune 1994, Dl.

Unland, Karen. "Quebec to control job training." The Globe and Mail, 22 April 1997, A6.

Wills, Terrance. "No need to meet, PM says." Montreal Gazette, 11 December 1998, Al.

Winsor, Hugh. 'Deal to replace GST evades Ottawa." The Globe and Mail, 2 April 1996, A10.

Yaffe, Barbara. "'ûttawa poised to balance B.C.'s immigration cost equity." The Vancouver Sun, 28 February 1997, A3.

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Canada. Canada-Quebec Accord Relatina to Immigration and temporarv Admission of Aliens. Ottawa: Minister of Supply and Services Canada, 199 1.

Canada. Citizen's Forum on Canada's Future. Ottawa: Minister of Supply and Services, 1991. Canada. Citizenship and Immigration Canada. Canada and Manitoba Sian First Tmmieration Agreement. News Releases. 96-23. 1996. Online. Citizenship and Immigration Canada. Available: http://www.cicnet.ci.gc.ca/english/pres~6/9623- pre-html. 28 Nov. 1998.

Canada. Citizenship and Immigration Canada. Canada and Saskatchewan Sien Immigration Agreement. New Releases. 98-1 7. 1998. Online. Citizenship and Immigration Canada. Available: http://www.cicnet.ci.gc.ca/english/press/98/98 17- pre-html. 28 Nov. 1998.

Canada. Citizenship and Immigration Canada. Canada and B.C. Sign an Anreement for Co-operation on Immigration. New Releases. 98-26. 1998. Online. Citizenship and Immigration Canada. Available: http://www.cicnet .ci.gc.ca/english/pres~ml16 Jun. 1999.

Canada. Citizenship and Immigration Canada. Canada and Manitoba Reach Agreement on Provincial Nominees and Immiarant Settlement Services. News Releases. 98- 3 5. 1998. Online. Citizenship and Immigration Canada. Available: http://ww.cicnet.ci.gc.ca/english/press/. 28 Nov. 1 998.

Canada. Citizenship and Immigration Canada. Canada and New Brunswick Reach an Agreement on Immigration. News Releases. 99- 14. 1999. Online. Citizenship and Immigration Canada. Available: http: //www. cicnet .ci.gc.ca/engli sh/press/99/99 1 4-pre. html . 1 6 Jun. 1 999.

Canada. Department of Indian Anairs and Northern Development. Aboriainal Self- Government The Govemment of Cznada's A~oroachto Im~lementationof the Inherent Right and the Negotiation of Abonaina1 Self-Government. Ottawa: Minister of Supply and Services, 1995.

Canada. Department of Intergovemmental Mairs. Ca1aat-y Unitv Meeting Se~ternber 14, 1997 Princi~lesfor Discussion on Canadian Unity. 1997. Online. Available: http://www.uni.dcalgary. html. Oct. 1997.

Canada. Department of Justice. A Consolidation of The Constitution Acts 1867 to 1982. Ottawa: Minister of Supply and Services Canada, 1989.

Canada. Department of Manpower and Immigration. Immigration Policy Persvectives, A Report of the Canadian Immi ion and Popdation Studv. Ottawa: Information Canada, 1974.

Canada. Employment and Immigration Canada. Success in the Works. Ottawa: Minister of Supply and Services, 1989. Canada. Human Resources Development Canada. Government of Canada Offers Provinces and Territories Res~onsibilityfor Active Emplovrnent Masures. New Releases. 30 May 1996.

Canada. Human Resources Development Canada. Canada-Alberta Ameement on Labour Market Development. Otîawa: Minister of Supply and Services Canada, 1996.

Canada. Human Resources Development Canada. Canada-New Brunswick Ameement on Labour Market Developrnent. Ottawa: Minister of Supply and Services Canada, 1996.

Canada. Human Resources Development Canada. Canada-British Columbia Ameement on Labour Market Develo~ment.Ottawa: Minister of Supply and Services Canada, 1997.

Canada. Human Resources Development Canada. Canada-Manitoba Agreement on Labour Market Deveio~ment.Ottawa: Minister of Supply and Services Canada, 1997.

Canada. Human Resources Development Canada. Canada-Newfoundland and Labrador Ameement on Labour Market Develo~rnent.Ottawa: Minister of Supply and Services Canada, 1997.

Canada. Human Resources Development Canada. CanadaMova Scotia Agreement on a Framework for Strateaic Partnershi~s.Ottawa: Minister of Supply and Services Canada, 1997.

Canada. Human Resources Development Canada. Canada-Ouébec Labour Market Agreement in Princi~le.Ottawa: Minister of Supply and Services Canada, 1997.

Canada. Human Resources Development Canada. Canada-Saskatchewan Anreernent on Labour Market Development. Ottawa: Minister of Supply and Services Canada, 1998.

Canada. Immigration Legislative Review. Not Just Numbers A Canadian Frarnework for Future Immigration. Ottawa: Minister of Public Works and Government Services, 1997.

Canada. Library of Parliament Research Branch. Background Paper. Immigration: The Canada-Quebec Accord, by Margaret Young. Ottawa: Minister of Supply and Services, 1992.

Canada. Library of Parliament Research Branch. Background Paper. Immiszration: Constitutional Issues, by Margaret Young. Ottawa: Minister of Supply and Services, 1992. Canada. Ministerial Council on Social Policy Reform and Renewal. Report to Premiers. Ottawa: Minister of Supply and SeMces, 1995.

Canada. Office of the Prime Minister. The Prime Minister Delivers on Referendum Commitments with Initiatives for Change. News Release. Ottawa, November 27, 1995.

Canada. Special Joint Committee of the Senate and of the House of Commons on Immigration Policy. Re~ortto Parliament. Ottawa: Supply and Services Canada, 1975.

Canada. Standing Cornmittee on Finance. Ninth Report. Re~lacinathe GST: Options for Canada. Ottawa: Canada Communication Group, 1994.

Canada. Supreme Court of Canada. Reference re Secession of Ouebec. Ruling. File No.: 25506. 1998. Online. Université de Montreal. Available: http://www,droit.umontreal.ca/doc/csc-scc/edrectmWrenvoi.en.html. Oct . 1998.

New Brunswick. New Brunswick Commission on Canadian Federalism. Re~ort. Fredericton, N.B.: The New Brunswick Commission on Canadian Federalism, 1992.

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Ontario. Select Committee on Ontario in Confederation. Final Re~ort.Toronto: Select Committee on Ontario in Confederation, 1992.

Quebec. Département de l'Immigration. Ra~~ortannuel 1978- 1979 Ministère de 1'Imminration. Quebec City: Editeur officiel du Quebec, 1980. 1 Saskatchewan. Task Force on Saskatchewan's Future in Codéderation. Report. Regina: Task Force on Saskatchewan's Future in Confederation, 1992.