Constructive and Co-operative ? A Series of Commentaries on the Council of the

Intergovernmental Councils in Ronald L. Watts*

Foreword Introduction: Canadian Proposals ’s Provincial and Territorial Premiers At the Annual Premiers Conference in agreed in July 2003 to create a new Council of the Federation to better manage their relations Charlottetown, July 9-11, 2003, at the urging of and ultimately to build a more constructive and Premier Charest and as a first step, the premiers cooperative relationship with the federal announced the formation of a new formal inter- . The Council’s first meeting takes provincial Council of the Federation. This is to place October 24, 2003 in Quebec hosted by be comprised of the 13 premiers of the ten Premier Jean Charest. provinces and three territories, and will meet on a regular basis. The first meeting will occur this This initiative holds some significant month on October 24, 2003, in Quebec City. At promise of establishing a renewed basis for more that time, the Premiers will finalize the mandate extensive collaboration among in and the structure of the Council. Earlier, the Canada, but many details have yet to be worked out and several important issues arise that merit Liberal Party of Quebec, now governing in that wider attention. province, had included in its program, Un plan d’action, first published in October 2001, a The Institute of Intergovernmental Relations proposal for facilitating both vertical and at Queen’s University and the Institute for horizontal intergovernmental co-operation by the Research on Public in Montreal are jointly establishment of a formal permanent federal- publishing this series of commentaries to provincial Council of the Federation with its own encourage wider knowledge and discussion of the secretariat. Unlike the original Quebec proposal proposed Council, and to provoke further thought for a federal-provincial council, the primary about the general state of intergovernmental focus of this new council will be to serve as a relations in Canada today. provincial-territorial co-ordinating body. This series is being edited by Douglas Brown However, in announcing its formation, it should be noted that the premiers did agree upon the at Queen’s University in collaboration with France St-Hilaire at the IRPP. need for annual first ministers’ meetings, co- chaired by the Prime Minister and the chair of the Harvey Lazar Council of the Federation, with agendas jointly Hugh Segal determined on such standing items as health, October 2003 trade, finance, justice and the economy. Is this new initiative to institutionalize * Ronald L. Watts CC, D.Phil, LL.D., FRSC, is Principal relations among the governments within the Emeritus, Professor Emeritus of Political Studies and a Fellow of the Institute of Intergovernmental Relations, Canadian federation a desirable development? It Queen’s University. is not, of course, the first time a formal Constructive and Co-operative Federalism? 2003 (2), © IIGR, Queen’s University; IRPP, Montreal. 1 Ronald L. Watts, Intergovernmental Councils in Federations intergovernmental council has been proposed. significant examples from among the two dozen The Pepin-Robarts report in 1979 advanced some contemporary federations. For this purpose I proposals.1 In 1991 the Government of Canada’s have chosen to focus upon six particular ormal proposals which triggered off the examples. represents a mature discussion and negotiations leading eventually to federation established in 1901, which like Canada the Charlottetown Agreement, included a federal- combines federal and parliamentary institutions, provincial Council of the Federation, although and which a decade ago established a Council of this was not included in the final Charlottetown Australian Governments (COAG). is a Agreement 1992.2 Is the Council of the federation, which operating under its constitution Federation then an idea whose time has now of 1949, has highly institutionalized come? intergovernmental arrangements. A key feature is a federal second chamber, the Bundesrat, The purpose of my article is to examine the composed of delegates, including the Minister- experience of other federations to see what may President, from each of the Land governments. be learned from them on this issue. Among the In addition there is a Conference of Ministers- approximately 180 politically sovereign states in President including the Federal Chancellor which the world today there are some two dozen meets regularly. , whose independence federations containing approximately two billion constitution of 1950 was to some extent based on people or about 40 percent of the world’s the earlier Indian proposals of 1935, themselves population, and encompassing some 480 modelled on the British North American Act, federated states or provinces. There are many 1867, is like Canada a parliamentary federation variations among these federations in their and contains a diverse multilingual and institutional design, the character of the diversity multicultural society. South Africa’s constitution within their societies, their degree of economic of 1996 is a very recent example. Although development, and their policy agendas. possessing some particularly centralized features, Nevertheless a common feature among them has South Africa is included because it has attempted been the need for effective internal to take the experience of earlier federations, intergovernmental arrangements. Thus, while particularly Germany, and improve upon them. there is no single federal model or example that is , which first became a federation in applicable everywhere, there is much to be 1848, possesses a distinctively unique collegial gained from examining the similarities and form of fixed term at the federal level. differences in their approaches to facilitating Its new constitution of 1999 is of interest because federal-provincial and inter-provincial co- it puts a strong emphasis upon intergovernmental operation and co-ordination. Since many of the consultation and co-operation. Furthermore, the problems we face in Canada are common to Conference of the Cantonal Governments plays a virtually all federations, examining the major role not only in intercantonal co-operation experience of other federations in but also in co-ordinating cantonal negotiations institutionalizing intergovernmental relations with the federal government. The United States may provide us with both positive and negative differs from Canada in having presidential- lessons, i.e. with both effective examples and congressional institutions. These have led to a cautionary tales. pattern of intergovernmental relations Given the array of federal examples that considerably less institutionalized than in most might be examined, it is necessary for a brief other federations. article such as this to select the most relevant and Interdependence Within Federations

1 The Task Force on Canadian Unity (Pepin-Robarts), A Future Together: Observations and The traditional classical concept of Recommendations (Ottawa: Ministry of Supply and federalism advanced by such authors as A.V. Services, 1979), pp. 97-9. Dicey, the Judicial Committee of the Privy 2 Shaping Canada’s Future Together: Proposals, Council in its judgments on Canadian cases, and 1991, pp. 41-2, 47, and Responsive Institutions for a K.C. Wheare, is that federalism involves dual Modern Canada, 1991, pp. 23-6.

Constructive and Co-operative Federalism? 2003 (2), © IIGR, Queen’s University; IRPP, Montreal. 2 Ronald L. Watts, Intergovernmental Councils in Federations . In a federation federal and feature of the Canadian federation, as of all provincial (or state) governments exist side by federations. side, each separate and virtually independent in its own sphere of constitutionally assigned What happened in the 1930s, the post World authority. According to the traditional account, War II period and since has not been something that was how the classical federations of the new, but an intensification of what is an inherent United States (1789), Switzerland (1848), Canada characteristic feature of all federations. Three (1867) and Australia (1901) began, but factors contributed to an intensification of this developments in the 1930s and then following characteristic during the twentieth century: the World War II led in each of these federations to general trend to increased activity of the replacement of ‘dual federalism’ by ‘co- governments at all levels creating more overlaps, operative federalism.’ The latter involved the development of new policy areas such as the interdependence and a variety of co-operative environment and energy not contemplated at the intergovernmental relations made necessary time the older federations were designed, and the particularly by the growth of social programs and changing conditions affecting over time the the financial arrangements to support them. allocations of taxing powers and expenditure responsibilities to different governments and In truth, however, interdependence among creating vertical and horizontal imbalances. governments as partners within federations has These required intergovernmental transfers and been a fact from their beginnings. Although the processes and institutions for the periodic demarcation of the legal authority of federal and adjustment of financial relations among provincial powers is one essential aspect of governments. Now as federations move into the federations, in practice the inevitability of twenty-first century, the interdependence inherent overlaps in responsibilities and political, financial within all federal systems is being further and administrative realities have meant that extended and complicated by its widened scope intergovernmental interrelations have always also increasingly embracing the international and been an inherent feature of federations. Studies municipal spheres as well. of the United States by such authors as Daniel Elazar and Morton Grodzins have provided The inherent and inevitable interdependence evidence that in the nineteenth century, as in the among governments within federations often twentieth, administrative co-operation and gives rise to ineffective governance or conflicts. political interdependence between federal and Disputes may arise over constitutional state governments was a dominant characteristic jurisdiction, fiscal issues such as revenue-sharing of the United States as a federation, despite and vertical and horizontal fiscal imbalances, the formal legal pronouncements to the contrary. exercise of the federal spending power, regional Similarly, in the case of Canada, Garth development , control of natural Stevenson, in his comprehensive account of resources, policies affecting linguistic, religious federal-provincial relations in Canada during the or cultural differences, lack of consultation and period from to the formation of unilateral action by one of the governments, or Wilfrid Laurier’s government in 1896, found even simply from a clash of personalities. Most considerable intergovernmental interaction right federations have found that reliance simply on from the beginning of the Canadian federation. the courts to resolve such disputes is insufficient, This was particularly notable in immigration and and that in many instances bodies facilitating agriculture, two areas of concurrent jurisdiction consultation and co-operation between and of particular importance in the early decades governments are a desirable alternative for of the Canadian federation. Between 1868 and managing interdependence and fostering co- 1874 six federal-provincial conferences were operation. These will not eliminate conflict held dealing with these issues, and in 1872 the which in a situation of interdependence will first shared-cost program was initiated in support inevitably arise from time to time. But they do of immigration. Thus, interdependence among provide a means of managing conflict. the governments as partners has been a historic

Constructive and Co-operative Federalism? 2003 (2), © IIGR, Queen’s University; IRPP, Montreal. 3 Ronald L. Watts, Intergovernmental Councils in Federations

It should be noted that intergovernmental intergovernmental implications. In this respect interdependence within federations has two Australia has gone considerably further than important dimensions. First, there are the vertical Canada. relations between governments of different orders, i.e. federal-provincial relations and The Council of Australian Governments provincial-local relations. Increasingly such (COAG) is Australia’s primary vertical relationships within federations may also intergovernmental institution.3 It was established involve supra-federation organizations or other in 1992 in a movement to reform countries. A second dimension is the horizontal intergovernmental relations in Australia. COAG relationships of different governments within the is chaired by the Prime Minister and includes all same sphere, such as inter-provincial or inter- the State Premiers and Territory Chief Ministers local relations. Typically, in federations both and the President of the Australian Local kinds of intergovernmental relations have been Government Association. It generally meets at important. Within each of these two dimensions, least once a year. The main purposes of COAG intergovernmental relations may involve all the are to increase co-operation among governments governmental units within a federation, regional and to oversee and co-ordinate the work of the groupings of governments, or be bilateral. Ministerial Councils.

In this context, all federations, both old and There are some 30 intergovernmental new, have had to come to terms with the ministerial councils dealing with sectoral changing scope, character and varied dimensions responsibilities at which a minister of the of interdependence among governments. An Commonwealth and of each state and territory important instrument for this in most federations attends. A number of these ministerial councils has been the establishment of both formal and have decision-making mandates assigned by informal councils, committees and conferences. legislation and have rules, thus making These are usually held frequently enough to them genuine intergovernmental co-decision enable representatives of the different mechanisms. In 2001, COAG reviewed the governments – first ministers, ministers, officials operation of these ministerial councils and agreed and legislators – to share information, discuss to a number of measures to streamline their common problems, contemplate co-ordinated or operation and improve their ability to make co- even joint action and where appropriate establish decisions. joint bodies or agencies. In most federal polities such formal councils, committees, conferences In addition to COAG there is also a Treaties and agencies have become numerous. Council with the same membership as COAG. Furthermore, recent decades have seen This body deals with significant treaty significant developments and reforms, including negotiations that have an impact on the states and a number of innovations, in coming to terms with territories, but to date it has met only the changing and increasing demands of infrequently. interdependence among governments within federations. A complementary institution to COAG is the Leaders’ Forum consisting only of the State Examples of Intergovernmental Premiers and Territory Chief Ministers. A Councils primary function of this body is to allow the

Australia, like Canada combines federal and 3 D.M. Brown, Market Rules, Economic Union Reform parliamentary institutions. Although with the and Intergovernmental Policy-Making in Australia exception of the Loan Council, and Canada (Montreal & Kingston: McGill-Queen’s intergovernmental relations are not referred to in Press, 2002, pp. 162, 182, 186, 204, 208-11, 226, 259, the constitution as amended, Australia has 262; R. Wilkins & C. Saunders, “Intergovernmental established a number of major formal councils to Relations in Australia,” in P. Meekison, ed., deal with policy issues that have Intergovernmental Relations in Federal Countries (Ottawa: , 2002), pp. 17-23.

Constructive and Co-operative Federalism? 2003 (2), © IIGR, Queen’s University; IRPP, Montreal. 4 Ronald L. Watts, Intergovernmental Councils in Federations states and territories to reach a consensus, if committees also serve as a powerful possible, on issues to be raised with the federal intergovernmental institution for co-ordinating government. the Federal and Land governments and also the Länder with each other, albeit often along Where issues take on major lines. intergovernmental significance, these issues may be raised in COAG. Typically COAG, after In addition to the Bundesrat and its setting out a strategy and action plan may return committees, there have developed an extensive the particular issue to an appropriate ministerial number of other extra-constitutional bodies and council for implementation. procedures for intergovernmental consultation and co-ordination. These include a Conference Among the major reforms that have been of Ministers-President (Premiers), in which the achieved under COAG auspices have been an Federal Chancellor (Prime Minister) participates, agreement upon mutual recognition of the and which meets at least twice a year. There are regulation of trade in goods and of occupations, also numerous conferences of specialized an agreement on national gas pipeline access, ministers of the Federation and the Länder. Each establishing an intergovernmental process for meets at least once every six months, and each treaties, introducing a federally collected Goods meeting is preceded the week before by a and Service (GST) whose proceeds go to the meeting of the relevant state secretaries. These states on an equalized basis, a national action ministerial meetings are significant because they plan for natural resource management, an make political decisions, generally on the basis of agreement on terrorism and multi-jurisdictional unanimity, which are considered binding on all crime, and a National Water Initiative. Key parties. intergovernmental councils such as COAG and the ministerial councils have in Australia played The highly intertwined character of a major role in fostering co-operative and flexible intergovernmental relations in Germany has not intergovernmental relations. been without its critics. Some (e.g. Scharpf) have argued that requiring intergovernmental co- Germany also combines federal and decisions on such a wide variety of matters has parliamentary institutions. Its constitutional led to a “joint decision trap” stifling the initiative structure and the complementary institutions that and freedom of action of governments at both have been established have created a much more levels.4 Indeed, in recent years there have been a highly integrated, indeed interlocking, set of number of proposals in Germany for demarcating intergovernmental relations than in most governmental responsibilities more distinctly. federations. A key constitutional factor is that in Nevertheless, there is a general view that the Germany most of the legislative power has been extensively co-operative character of German concentrated in the federal institutions, but most intergovernmental relations has contributed to the of this legislation is, by constitutional performance and stability of the German requirement, implemented and delivered by the federation.5 Land governments. This requires a very high degree of co-ordination between the Federal and India, is a parliamentary federation whose Land governments. constitution is more closely modelled on the Canadian example. Its institutions of In this interlocking relationship, the Bundersrat is a key institution. Established by 4 the constitution as a federal second chamber, its F. Scharpf, “The Joint Decision Trap: Lessons from powers include an absolute veto over all federal German Federalism and European Integration,” Public legislation affecting the Länder (in practice about Administration, 66(1988), pp. 238-78.

60 percent of federal legislation). Its 5 K-D. Schnapauff, “The Federal System of the composition, consists of Land delegations each Federal of Germany,” in P. Meekison, ed., led by its Minister-President (Premier). This Intergovernmental Relations in Federal Countries means that the Bundesrat and its many (Ottawa: Forum of Federations, 2002), pp. 24-32.

Constructive and Co-operative Federalism? 2003 (2), © IIGR, Queen’s University; IRPP, Montreal. 5 Ronald L. Watts, Intergovernmental Councils in Federations intergovernmental relations have, however, been Planning Commission as the two staff agencies influenced more by Australian examples, for executive federalism in India.6 particularly those relating to intergovernmental financial relations. South Africa differs from the preceding examples in having a hybrid presidential- The constitution presupposes a functional . The highly centralized interdependence between the two orders of and integrated federal structure in the 1996 government. Article 263 provides for an Inter- constitution was largely modelled on that of State Council (ISC) for harmonizing Union-State Germany. A notable feature of the 1996 and interstate relations and for policy co- constitution is Chapter 3 (articles 40-41) which is ordination. It was only in 1990, however, that entitled “Co-operative Government.” This this enabling constitutional provision was explicitly enunciates that intergovernmental co- implemented. The ISC has, in practice, yet to operation is to be the underlying philosophy for come fully into its own. the conduct of government and the relations between the three spheres of government: On the other hand, an extensive number of national, provincial and local. Furthermore, to extra-constitutional intergovernmental forums encourage intergovernmental co-operation the have been established such as the National constitution empowers the Constitutional Court, Development Council (NDC) set up in 1952 for if it is not satisfied that every reasonable effort to intergovernmental approval of the five-year settle a dispute by intergovernmental negotiation plans. There are also several intergovernmental has been taken, to refer a dispute back to the national councils in policy areas such as local governments involved (article 41(4)). government, health and population. As well, under the States Reorganization Act in 1956 As in Germany, the South African federal Zonal Councils for regional groups of states were second chamber, the National Council of the established, but except for the Northeastern Provinces (NCOP), consists of delegates of the Council these have not been very active. In the provinces, who have an absolute veto on certain same year some interstate tribunals were kinds of legislation and a suspensive veto on established under the Inter-State River Water others. Unlike the German example, however, Disputes Act. In the domain of each provincial delegation consists not only of intergovernmental financial relations, the members drawn from the provincial executive, quinquennial Finance Commissions provided for but a majority drawn from the provincial by the constitution (article 280) have had a based on a proportional representation significant impact upon the allocation to the of the political parties in the provincial legislature states of constitutionally mandated transfers. concerned. Including representatives from the legislature in this way was considered a All the formal or informal intergovernmental democratic improvement on the German model, councils have shunned majority rule and have but in practice this mixed composition of relied instead upon consensus processes with provincial delegations has made it a less coherent agendas set by the Union in consultation with the and effective body for conducting states. As a general pattern, Union governments have preferred the informality and flexibility of non-formal intergovernmental forums, finding 6 M.P. Singh, “Federal Division of Responsibilities in them more convenient. Nonetheless, the Sarkaria India,” paper presented to a seminar on Distribution of Commission on Centre-State Relations, 1987-8, Responsibilities in Federal , 20 did recommend the constitutional entrenchment September 2003, New Delhi, for the Joint of the NDC as being, along with the ISC, one of IACFS/Forum of Federations Global Dialogue the two major organizations of intergovernmental Project; R. Saxena, “Strengthening Federal Dialogue: Role of NDC and ISC,” Contemporary India, Vol. 1, executive relations. It also recommended the No. 3, July-September 2002, pp. 51-64; Government streamlining of the Finance Commission and the of India, Commission on Centre-State Relations, Report (Sarkaria), (Nasik: Government of India Press, 1987-8), 2 vols.

Constructive and Co-operative Federalism? 2003 (2), © IIGR, Queen’s University; IRPP, Montreal. 6 Ronald L. Watts, Intergovernmental Councils in Federations intergovernmental relations than is the case in rotates annually. This form of executive is also Germany. paralleled at the cantonal level. This distinctive institutional arrangement, the tradition of In addition to these constitutional provisions representing all four of the major political parties a host of other extra-constitutional bodies to in the Federal Council, the absence of a facilitate intergovernmental co-operation has prohibition of dual membership in the cantonal been established. A key body is the President’s and federal , and the constitutional Co-ordinating Council (PCC), a non-statutory provision making all federal legislation body consisting of the President in the chair, the potentially vulnerable to a referendum challenge, nine provincial premiers and the national have over the years contributed to a tradition of Minister for Provincial and Local Government. extensive federal-cantonal consultation and The PCC meets twice a year. Its functions negotiation. include enhancing inputs by the provincial executives on the formulation of national Under the new constitution adopted in 1999, policies, promoting inter-provincial dialogue, no formal intergovernmental councils were resolving national provincial and inter-provincial established. Articles 44-49, however, set out disputes, improving intergovernmental co- principles of federal-cantonal collaboration, operation, and co-ordinating shared programs. It including provision for the cantons to participate is, however, primarily a consultative body, its in decision-making processes at the federal level decisions not being formally binding or including federal legislation (article 45(1)), and enforceable. requiring federal consultation of the cantons (article 45(2)). The new constitution also In addition there are numerous councils specifically provides for the participation of consisting of the relevant national minister cantons in federal decisions on foreign policy (MINs) and provincial executive council (article 55), and for cantonal treaties with foreign members (MECs), these councils being referred countries in areas within cantonal jurisdiction to generally as ‘MINMECs.’ These have (article 56). To facilitate inter-cantonal co- supporting officials’ committees referred to as operation, the new constitution also specifically ‘Technical MINMECs’ which meet frequently. permits cantons to enter into inter-cantonal treaties and to create common organizations and In 1999 an Intergovernmental Relations institutions (article 48). Also at numerous other Audit recommended a redefinition of the role of points in the new constitution, there are specific the PCC and the MINMECs. It found that the references to the requirement of federal-cantonal proliferation of informal intergovernmental consultation or collaboration. bodies had led to duplication and tangled linkages. The audit therefore recommended a As a result of these provisions federal- clarification of roles with more formal co- cantonal and inter-cantonal consultation and co- ordination among the many existing instruments operation is very extensive in Switzerland. No of intergovernmental relations.7 formal federal-cantonal council has been created, but given the existence of 26 cantons, a body for Switzerland, became a federation in 1848. their co-ordination has been considered desirable. Unlike the parliamentary federations, Switzerland The Conference of Cantonal Governments is has a distinctive form of federal executive. The intended both to facilitate inter-cantonal Federal Council is a collegial body elected by the collaboration and, equally important, to serve as federal legislature for a fixed term and composed the primary channel for cantonal co-ordination in of seven councillors among whom the presidency federal-cantonal consultation and negotiation.8

7 N. Oliver, “Intergovernmental Relations in South Africa: Conflict Resolution within the Executive and 8 Federal Constitution of the Swiss Confederation, Legislative Branches of Government,” in P. Meekison, 1999; W. Linder, Swiss : Possible ed., Intergovernmental Relations in Federal Countries Solutions to Conflict in Multicultural Societies (Ottawa: Forum of Federations, 2002), pp. 71-90. (Basingstoke, UK: MacMillan, 1994), pp. 54-60, 71-3.

Constructive and Co-operative Federalism? 2003 (2), © IIGR, Queen’s University; IRPP, Montreal. 7 Ronald L. Watts, Intergovernmental Councils in Federations

The United States is distinctive among the 1996, there was an Advisory Commission on federations considered here because of its non- Intergovernmental Relations, which consisted of parliamentary character. Within each order of three members of the President’s cabinet, three government the institutions are marked by a members of the House of Representatives, three : between the President and senators, four governors, three state legislators, Congress, and between the Governors and the three country commissioners, four mayors and Legislatures. This diffusion of power within three private citizens. During its existence, it did each level of government has given the character useful work in monitoring intergovernmental of intergovernmental relations within the United relations, but it was dissolved in 1996 when States a distinctive cast. Congress withdrew its funding support in a period of financial constraint. Intergovernmental relations have as a result involved a wide variety of channels between Conclusions: Lessons for Canada executives, administrators and legislators in different governments, often with the From this review it is clear that intervention of various interest groups, in a interdependence among governments as partners variety of crisscrossing patterns. This is further has been inherent in federations. It is not compounded by the fact that in a federation of 50 surprising, therefore, that extensive states there is such an enormous variety of state intergovernmental institutions and processes have interests that it has been difficult to get been a pervasive feature of most contemporary agreement on specific matters. federations, although the precise form of these has varied from federation to federation There is nothing, therefore, directly depending on their particular circumstances. comparable to the executive federalism and Indeed, Alen and Ergec, writing about the new formal intergovernmental councils prevalent in Belgian federation, came to conclude that the the parliamentary federations described above. three fundamental requirements for an effective That is not to say that intergovernmental co- federation are: (1) a distribution of jurisdiction operation does not exist. Indeed, from the very ensuring autonomy for the federated units, (2) the beginning of the federation in 1789, federal, formal participation of representatives of the state, and local officials have recognized their federated units in the institutions of federal interdependence and the need to co-operate in a government, and (3) intergovernmental relations variety of ways to achieve both their common and co-operation.10 Most federations, especially 9 and separate objectives. But while this co- parliamentary ones, have consequently found operation has been extensive, it has involved a formal or informal federal-provincial and inter- wide range of separate federal, state and local provincial councils of considerable value for government offices and officials usually working facilitating intergovernmental collaboration. It is directly with each other. Currently, there are no also noteworthy that in a number of federations general governmental co-ordinating bodies. there have been recent reforms to make these However, some co-operation of state and local bodies more formal and more effective as co- officials occurs through their voluntary, non- ordinating institutions. profit, national organizations such as the National Governors’ Association, the Council of State While contemporary federations have ranged Governments, and the National Conference of somewhere along the spectrum between State Legislatures. For a time, between 1959 and interlocking intergovernmental relations and arm’s length co-operation, most, it would appear, have developed intergovernmental collaboration 9 J. Kincaid, “Intergovernmental Relations in the to a much greater degree than Canada. Thus, in United States of America,” in P. Meekison, ed., Intergovernmental Relations in Federal Countries (Ottawa: Forum of Federations, 2002), pp. 33-44; D. J. 10 A. Alen and R. Ergec, La Belgique fédéral après la Elazar, Federalism and the Way to Peace (Kingston: quatrième réforme de l’État de 1993, 2nd ed. (Brussels, Institute of Intergovernmental Relations, Queen’s Ministère des Affaires étrangères, F/98/1, 1998), pp. University 1994), pp. 133-58. 29-30.

Constructive and Co-operative Federalism? 2003 (2), © IIGR, Queen’s University; IRPP, Montreal. 8 Ronald L. Watts, Intergovernmental Councils in Federations comparative terms, it must be recognized that Although there are no obvious examples Canada has been less well-equipped to manage elsewhere, there is also the issue of whether there the contemporary challenges of interdependence should be aboriginal representation as there was than most federations. Federations elsewhere, during the pre-Charlottetown process in 1992. therefore, illustrate possible improvements, including formal federal-provincial and inter- In establishing a co-ordinating council in provincial councils, which Canadians would do Canada where should the balance between well to consider carefully. At the same time, it interlocking and arm’s length intergovernmental must be emphasized that there are no universal relations be found? The traditional Canadian solutions and that the particular social, economic, emphasis upon demarcating federal and political and constitutional context of the provincial roles and autonomy makes the degree Canadian federation must be taken into account. of interlocking interdependence adopted in Germany and South Africa inappropriate. In considering proposals for a Council of the Furthermore, the intergovernmental institutions Federation a number of issues will need to be will need to be genuinely collaborative in taken into account. Should it be a federal- character, rather than instruments for provincial or an inter-provincial council? intergovernmental imposition. But provision for Experience elsewhere suggests that both forms some formal institutions to improve have a vital role. Indeed in some cases intergovernmental collaboration and reduce elsewhere, for example Switzerland, an inter- friction and conflict in Canada would appear to provincial council has facilitated federal- be overdue. At the same time, in establishing provincial negotiations by providing a forum for formal institutions to improve intergovernmental achieving a prior provincial consensus on collaboration it will be essential to ensure that federal-provincial issues. On the other hand, in they are open, transparent, accessible and Australia, India and South Africa the emphasis responsive in order to avoid any public sense that has been upon effective federal-provincial they will contribute to a ‘democratic deficit.’ councils dealing with issues of both vertical and horizontal collaboration. In the current context, Ultimately, the design of intergovernmental should the proposal for an interprovincial co-ordinating councils will need to find a balance Council of Federation in Canada be regarded between shared goals, provincial autonomy, simply as a first step towards a fully federal- political stability, democratic transparency and provincial Council, or should the long-term accountability, equity, efficiency and innovative objective be two formal councils, one federal- flexibility. Difficult choices and value trade-offs provincial and the other inter-provincial? At will therefore be unavoidable. But these choices least one or other of these further developments must be addressed since the future effectiveness will be essential in the long-term. of the Canadian federation in a changing world is at stake. Another issue is whether provision for a Council of the Federation should be inserted in the constitution or simply be an informal body? Experience elsewhere indicates that federations have often operated with a mixture of constitutional and extra-constitutional councils. As Australia has illustrated, constitutionalization is not essential, but extra-constitutional formal councils do have an advantage over merely ad hoc bodies.

Yet another issue, in view of the increasing importance of major cities, is whether there should be some representation of local governments, as occurs in the Australian COAG.

Constructive and Co-operative Federalism? 2003 (2), © IIGR, Queen’s University; IRPP, Montreal. 9