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CANADIAN FEDERALISM: DERA FE TI E O ADAPTING CONSTITUTIONAL H N ROLES and RESPONSIBILITIES T in the 21ST CENTURY L a N FÉ IO Donald G

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CANADIAN FEDERALISM: DERA FE TI E O ADAPTING CONSTITUTIONAL H N ROLES and RESPONSIBILITIES T in the 21ST CENTURY L a N FÉ IO Donald G CANADIAN FEDERALISM: DERA FE TI E O ADAPTING CONSTITUTIONAL H N ROLES AND RESPONSIBILITIES T IN THE 21ST CENTURY L A N FÉ IO Donald G. Lenihan, Tim Barber, Graham Fox and John Milloy DÉRAT Since 1867, the clear trend has been toward deepening interdependence between the federal and provincial governments. In some ways, the history of federal- provincial relations is the story of their efforts to manage this growing interdependence. New technologies and globalization are taking this to a new level, far beyond anything we have seen before. As a result, traditional ways of managing the federation, such as the division of powers in the 1867 Constitution, executive federalism, or the courts, are no longer adequate on their own, say Lenihan et al. Governments need new guidance and direction to manage new forms of interdependence. The authors propose an approach that would give citizens a special role in helping to define the outcomes they want their governments to achieve together in key areas of interdependence. They call it “citizen-centred” federalism. Depuis 1867, on a assisté au renforcement de l’interdépendance des gouvernements fédéral et provinciaux. L’histoire des relations fédérales-provinciales se résume en quelque sorte aux efforts consentis à la gestion de cette interdépendance croissante. Or les nouvelles technologies et la mondialisation ont accentué le phénomène, de sorte que les moyens qui ont traditionnellement servi à gérer la fédération, de la répartition des pouvoirs aux tribunaux en passant par le fédéralisme exécutif, n’y parviennent plus à eux seuls, constatent Lenihan et al. Les gouvernements ont besoin de nouvelles modalités d’encadrement et d’orientation pour gérer ces nouvelles formes d’interdépendance. Les auteurs proposent une approche qui donnerait aux citoyens un rôle précis dans la détermination des résultats que devraient viser les gouvernements dans les domaines d’interdépendance. Pour la décrire, ils parlent de « fédéralisme citoyen ». he conventional, hierarchical structure of govern- ance, especially from provinces, to the idea of integrating ment has prevented governments from collaborat- programs and services in ways that require the alignment of T ing with each other or with the private and policies across jurisdictional boundaries or the creation of voluntary sectors. Efforts to change that structure challenge new mechanisms for joint or shared governance. long-standing practices of accountability and the protection These jurisdictional walls — and the political culture of privacy. In effect, these practices evolved together with that supports them — are one of the most serious obstacles government and are deeply intertwined with its structure. to the transformation of government. While we recognize Efforts to change it therefore inevitably affect them. that the commitment to federalism is an essential part of There is yet a third area where the structure of govern- our system of government that must be respected, we argue ment is deeply intertwined with cherished institutional prac- that the practice of federalism has evolved and changed tices: federalism. Given the commitment in our Constitution over the years and that it needs to be revisited again in light to the separation of federal and provincial spheres of activi- of the rise of digital technologies. ty, the ideas of integrating services across jurisdictional boundaries, of allowing personal and generic information to n 1867 the Fathers of Confederation decided that the flow more freely, and of promoting a more collaborative, I new country would be a federation. It was not a foregone partnership model of government and governance all raise a conclusion. Some, including Sir John A. Macdonald, want- particularly sensitive issue. There is often very strong resist- ed a unitary state. In the end, however, the parties agreed POLICY OPTIONS 89 APRIL 2007 Donald G. Lenihan, Tim Barber, Graham Fox and John Milloy that because the new country included national and local tasks made a lot of until then had seemed to be separate diverse linguistic, cultural and regional sense in the Canada of 1867, it was spheres. As a result, constitutional communities, federalism was a good because these circumstances prevailed; responsibilities that seemed black and compromise between full integration because the world was a simpler place. white in 1867 became progressively and independent colonies. The com- As a result, the British North America Act grey. It was getting harder to say what mitment to respect this diversity has met Canada’s needs quite well for a time. was local and what was national. thus been with us since the beginning. During the first half of the 20th The strategy behind it was simple century, however, things changed. s the interdependence of the two enough. The federal government Canadians flocked to the cities, A spheres grew, the courts were would attend to “national” matters, exchanging farming for manufacturing called on to play the role of “umpire” while the provincial governments jobs. Living in cities and working in of the federation, defining where the would occupy themselves with “local” factories raised new issues. Canadians boundaries lay. In contrast to ones. The 1867 Constitution divided needed new tools and machines, new Macdonald’s vision, however, it federal and provincial responsibilities knowledge and skills to build and oper- steered a pretty clear course toward into two mutually exclusive sets of ate them, and new private and public decentralization, gradually chipping powers. The two orders of gov- away at centralizing elements ernment would operate freely Governments responded by in the Constitution. within their respective spheres assuming new roles. They expanded Now, with almost a century with little or no conflict. into new areas of law-making, and a half of experience behind It was a fine idea. But we us, a clear lesson has emerged should note that the role of regulation and services, many of about our federation. The dis- government in 1867 was far which could hardly have been tinction between local and less ambitious than it is today. glimpsed by the Constitution’s national roles is a relative one. Governments focused on a few authors. As Canadian society Whether something is local or core tasks such as building national often depends on how roads, railways and ports; became more complex and we look at it. And that can maintaining an army; manag- differentiated, so did government change over time. Not so long ing trade relationships with programs and regulations. But these ago, clear-cutting a forest other countries; regulating changes had an unexpected looked like a local matter. Now businesses; and keeping the we know that it can have all peace. Moreover, bureaucracies consequence. They began to expose kinds of effects on other parts of were a fraction of the size they — or perhaps create — links the ecosystem, from migrating are now. Even governments between what until then had birds to the levels of CO2 in the that were large by the standards seemed to be separate spheres. As a air. The lesson is that the more of the day, such as the knowledgeable and differentiat- Government of Canada, could result, constitutional responsibilities ed our society becomes, the still house a major department that seemed black and white in more new connections we find in a single two- or three-story 1867 became progressively grey. It between these two levels. building. In addition, the offi- was getting harder to say what was At the end of the Second cials who ran them often spent World War, another wave of their entire career in the same local and what was national. change washed over the coun- department. As a result, they came to services for urban life, from automobile try. For governments, it was the start of know its business very well. Their insurance to streetcars and sewers. a huge expansion as they got to work long-term presence helped ensure sta- Governments responded by building the welfare state. Major new bility within the policy areas and con- assuming new roles. They expanded programs were launched, such as the tinuity among the various roles. into new areas of law-making, regula- Canada Pension Plan, family allowance tion and services, many of which and medicare. inally, Canadian society, too, was a could hardly have been glimpsed by The period was one of especially F simpler place. Most people lived in the Constitution’s authors. As intense growth and building for the the countryside and worked on farms. Canadian society became more com- provinces. They found themselves Few had a high school education. plex and differentiated, so did govern- designing and delivering huge new Radio and television had not yet been ment programs and regulations. But programs in education, health and invented. these changes had an unexpected con- community services. That led to a If the idea of a federal state organ- sequence. They began to expose — or major expansion of their bureaucra- ized around a basic distinction between perhaps create — links between what cies, got them involved in new policy 90 OPTIONS POLITIQUES AVRIL 2007 Canadian federalism: adapting constitutional roles and responsibilities in the 21st century areas and precipitated new forms of owned them. The courts, in turn, based emerged from their meeting to taxation and spending. The result was their decisions on earlier precedents announce that they would be propos- enhanced visibility, profile and influ- around the division of powers. They ing an amendment to the Constitution ence among citizens. It also purged the explained this way of elaborating the to their respective legislatures. political culture of any remaining ves- Constitution by picturing it as a living At first, public reaction was upbeat, tiges of the old centralized vision of tree, whose branches grew and multi- even celebratory. Within a few months the mood had changed. This second wave of change was accompanied by a profound Three years later, as the time deepening of the interdependence between the two orders of limit on ratification of the government.
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