Reconsidering the Institutions of Canadian Federalism

Canada: The State of the Federation 2002 Reconsidering the Institutions of Canadian Federalism Edited by J. Peter Meekison, Hamish Telford and Harvey Lazar Published for the Institute of Intergovernmental Relations School of Policy Studies, Queen’s University by McGill-Queen’s University Press Montreal & Kingston • London • Ithaca Canadian Cataloguing in Publication Data The National Library of Canada has catalogued this publication as follows: Canada : the state of the federation Annual. 1985- Continues: Year in review, ISSN 0825-1207. ISSN 0827-0708 ISBN 1-55339-008-3 (2002 issue ; bound).—ISBN 1-55339-009-1 (2002 issue : pbk.) 1. Federal-provincial relations—Canada—Periodicals. 2. Federal government— Canada—Periodicals. I. Queen’s University (Kingston, Ont.). Institute of Intergovernmental Relations JL27.F42 321.02’3’0971 C86-030713-1 rev The Institute of Intergovernmental Relations The Institute is the only organization in Canada whose mandate is solely to promote research and communication on the challenges facing the federal system. Current research interests include fiscal federalism, the social union, the reform of federal political institutions and the machinery of federal-provincial relations, Canadian federalism and the global economy, and comparative federalism. The Institute pursues these objectives through research conducted by its own staff and other scholars, through its publication program, and through seminars and conferences. The Institute links academics and practitioners of federalism in federal and provincial govern- ments and the private sector. The Institute of Intergovernmental Relations receives ongoing financial support from the J.A. Corry Memorial Endowment Fund, the Royal Bank of Canada Endowment Fund, Power Corporation, the Government of Canada, and the Government of Ontario. We are grateful for this support which enables the Institute to sustain its extensive program of research, publication, and related activities. L’Institut des relations intergouvernementales L’Institut est le seul organisme canadien à se consacrer exclusivement à la recherche et aux échanges sur les questions du fédéralisme. Les priorités de recherche de l’Institut portent présentement sur le fédéralisme fiscal, l’union sociale, la modification éventuelle des institutions politiques fédérales, les mécanismes de relations fédérales-provinciales, le fédéralisme canadien au regard de l’économie mondiale et le fédéralisme comparatif. L’Institut réalise ses objectifs par le biais de recherches effectuées par son personnel et par des universitaires de l’Université Queen’s et d’ailleurs, de même que par des conférences et des colloques. L’Institut sert de lien entre les universitaires, les fonctionnaires fédéraux et provinciaux et le secteur privé. L’institut des relations intergouvernementales reçoit l’appui financier du J.A. Corry Memo- rial Endowment Fund, de la Fondation de la Banque Royale du Canada, de Power Corporation, du gouvernement du Canada et du gouvernement de l’Ontario. Nous les remercions de cet appui qui permet à l’Institut de poursuivre son vaste programme de recherche et de publication ainsi que ses activités connexes. © Copyright 2004 ii CONTENTS v Foreword vii Contributors I Introduction 3 1. The Institutions of Executive Federalism: Myths and Realities J. Peter Meekison, Hamish Telford and Harvey Lazar II Traditional Institutions 35 2. A Continuing Canadian Conundrum: The Role of Parliament in Questions of National Unity and the Processes of Amending the Constitution C.E.S. Franks 57 3. Political Parties and the Canadian Federation's Coalition Politics R. Kenneth Carty and Steven B. Wolinetz 77 4. Guarding the Constitution: Parliamentary and Judicial Roles Under the Charter James B. Kelly III Peak Institutions 113 5. The Weakest Link? First Ministers’ Conferences in Canadian Intergovernmental Relations Martin Papillon and Richard Simeon 141 6. The Annual Premiers’ Conference: Forging a Common Front J. Peter Meekison 183 7. The Western Premiers’ Conference: Intergovernmental Co-operation at the Regional Level J. Peter Meekison iii IV Managing Institutions 213 8. Managing Canadian Fiscal Federalism Peter Leslie, Ronald H. Neumann and Russ Robinson 249 9. Intergovernmental Officials in Canada Gregory J. Inwood, Carolyn M. Johns and Patricia L. O’Reilly 285 10. Securing the Threads of Co-operation in the Tapestry of Intergovernmental Relations: Does the Institutionalization of Ministerial Conferences Matter? Julie M. Simmons V Regional Institutions and Relations 315 11. Alberta/Saskatchewan Transborder Contacts with US States: A Survey and Analysis Revisited Howard Leeson 341 12. Quebec’s Role in Canadian Federal-Provincial Relations Jacques Bourgault 377 13. Quebec and North American Integration: Making Room for a Sub-National Actor? Nelson Michaud 411 14. The Missing Link: Policy Options for Engaging Ottawa in Canada’s Urban Centres Roger Gibbins VI Enhancing Legitimacy and Accountability in Intergovernmental Relations 425 15. Intergovernmental Agreements in Canada: At the Crossroads Between Law and Politics Johanne Poirier 463 16. Inter-Legislative Federalism David Cameron VII Chronology 483 17. Chronology of Events January 2002 – December 2002 Adele Mugford with Aaron Holdway iv FOREWORD This year’s Canada: The State of the Federation examines the role of institutions in the management of the federation. Although many of the institutions have been subject to analysis over the decades, it has been some time since all of the major institutions were considered in a single volume. Institutions matter. They help to make some initiatives easy to pursue and constrain others. They are also often the visible manifestation of the way in which a federation balances the tensions between unity and diversity. As such, they have a symbolic significance as well as practical importance. The volume begins with a consideration of the role of “traditional” institutions such as Parliament, Cabinet, the Supreme Court, and political parties. It has long been held that these institutions, as constituted, do not provide effec- tive forums for inter-regional bargaining, and that this void has been filled at least in part by the institutions and practices of executive federalism. In this volume, we confirm the validity of this thesis. But we also argue that the performance of the traditional institutions, taken as a whole, has deteriorated over the last couple of decades. These institutions are even weaker today than they once were in bridging between the unity and diversity mentioned above. The remaining parts of the volume focus on Canada’s intergovernmental institutions. A theme that emerges from these chapters is that these institutions are poorly coordinated. Thus, we have found that relations among federal and provincial finance ministries are becoming more disjointed at a time when relations among line ministries remain highly interdependent. Given the connectedness between line and finance ministries, this inconsistency is highly problematic. To get more consistency requires direction from first ministers. Unfortunately, the First Ministers’ Conference (FMC) has, in recent years, been a weak link in federation management. Not surprisingly, therefore, we con- clude that there is a strong need for much improved leadership from first ministers, and that this in turn requires that they have a stronger institutional base. Creating strong institutions of intergovernmental institutions, however, raises all of the pathologies associated with executive federalism. We therefore argue that a strengthened and better coordinated system of intergovernmental relations should be accompanied by an enhanced oversight role by Parliament and provincial legislatures. In short, both the traditional institutions and the intergovernmental institutions should be reformed together for opti- mal results in terms of federalism and democracy. v As in other years, we have included a chronology of major events. This volume covers the period from January 2002-December 2002. I would like to thank all the people who contributed to this volume. In particular, I want to make special note of the role played by my two co-editors. Peter Meekison wrote two chapters. Both break fresh ground. He also co-authored the intro- ductory chapter, and played a large role in the editing of the volume. Hamish Telford was instrumental in developing this project, thinking through the struc- ture of the volume, as well as playing a major role in the editorial process, and co-authoring the first chapter. As in other years, Patti Candido and Mary Kennedy contributed their ex- pertise to the conference that preceded this volume, and to the task of helping to prepare it for publication. The conference participants, including discussants and anonymous reviewers, provided crucial feedback to the authors. Valerie Jarus, Mark Howes and Kirsteen MacLeod managed the desktop publishing, cover design and copyediting, and collectively transformed the rough pages into the book. The chapters in this volume were first presented at a conference at Queen’s University in Kingston on 2-3 November 2001. I would like to thank those who participated in that event, as their feedback was instrumental to the processes that led to this volume. Finally, I wish to acknowledge the financial support of the Social Sciences and Humanities Research Council and the federal Privy Council Office in helping to make this project and volume a reality. Harvey Lazar December 2003 vi CONTRIBUTORS Jacques

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