Constructive and Co-operative Federalism? A Series of Commentaries on the Council of the Federation Intergovernmental Councils in Federations Ronald L. Watts* Foreword Introduction: Canadian Proposals Canada’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- government. 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 governments 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 Policy 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. However, in announcing its formation, it should This series is being edited by Douglas Brown at Queen’s University in collaboration with be noted that the premiers did agree upon the 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. Australia 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). Germany 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. India, 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 Switzerland, 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 executive 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 sovereignties. 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.