Abstract
Canada consists of two orders of government, each sovereign in its exercise of legislative powers, which stem from the Constitution. Canada is hence a federation, and as in any such state, the division of legislative powers is characterized by a certain constitutional rigidity. It cannot be formally modified except by means of a relatively complex procedure requiring the participation of both orders of government. The particular complexity of the procedure for amending the Constitution of Canada explains, in part, why intergovernmental relations focus essentially on ways to improve the Canadian federation through non-constitutional means.
Note to the Reader
This text was presented in October 2011, long before a sovereignist government was elected in Quebec following the general elections held on September 4, 2012. Needless to say, this election should modify substantially the government of Quebec’s position on Canadian intergovernmental affairs. The current text was also presented before the Supreme Court of Canada’s decision in Reference re Securities Act, [2011] 3 SCR 837, which was favourable for the government of Quebec (and Alberta). This decision is linked to note 51 of this text.
International Conference The Ways of Federalism and the Horizons of the Spanish State of Autonomies, Bilbao, Spain, October 2011.
This text is a modified and enriched version of a conference given at an International Seminar held in Zaragoza, Spain, in March 2009. The seminar’s theme was The Federalization of Spain: Deficits of Intergovernmental Co-operation. The paper then prepared by the author has been published as:
Benoît Pelletier, “Las relaciones intergubernamentales en Canadá desde una perspectiva horizontal” in José Tudela & Felix Knuepling (eds.) España y modelos de federalismo (Madrid: Centro de Estudios Políticos y Constitucionales: Fundación Manuel Giménez Abad de Estudios Parlamentarios y del Estado Autonómico, 2010), p. 301.
This text results from 10 years of active political life during which the author had the responsibility of intergovernmental affairs as official opposition critic (1998–2003) and as minister (2003–2008) in Quebec. The reader should therefore not be surprised if practical (rather than theoretical) aspects of intergovernmental relations are covered without scientific claim, nor should he or she be surprised if they are presented from a Quebec perspective.
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Notes
- 1.
A federation is composed of at least two orders of government. See Anderson (2008) at 3.
- 2.
In Canada, the division of legislative powers cannot be modified except by agreement of the Parliament of Canada and at least two-thirds of the provinces (meaning seven of them) representing at least 50 % of the total population of the provinces (the 7/50 procedure). In all federations, the division of legislative powers is relatively rigid as it can only be modified through a complex process; this process nonetheless varies between countries.
- 3.
In Canada, the federated states are called provinces. In other federations, these decentralized entities may be designated under different terms, such as states, regions, communities, länder, cantons, etc.
- 4.
The concept of interprovincialism does not exist in dictionaries; it has been invented to describe the intensification of relations between provinces.
- 5.
Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.
- 6.
Ibid, s 146.
- 7.
Rupert’s Land Act, 1868 (UK, 31 & 32 Vict, c 105, reprinted in RSC 1985, App II, No 6; An Act for the temporary Government of Rupert’s Land and the North-Western Territory when united with Canada, SC 1869, c 3, reprinted in RSC 1985, App II, No 7, and Rupert’s Land and North-Western Territory Order (1870), RSC 1985, App II, No 9.
- 8.
Manitoba Act, 1870, 33 Vict, c 3 (Can); Yukon Act, SC 2002, c 7; Saskatchewan Act, 1905, 4–5 Edw VII, c 42 (Can); Alberta Act, 1905, 4–5 Edw VII, c 3 (Can); Northwest Territories Act, RSC 1985, c N-27.
- 9.
Nunavut Land Claims Agreement Act, SC 1993, c 29.
- 10.
Légaré (2008).
- 11.
Ibid.
- 12.
Constitution Act, 1871 (UK), 34 & 35 Vict, c 28, s 4, reprinted in RCS 1985, App II, No 11.
- 13.
Yukon Act, supra note 8; Northwest Territories Act, supra note 8; Nunavut Act, SC 1993, c 28.
- 14.
See the website of Aboriginal affairs and Northern Development Canada for the list of acts for which the Minister has sole responsibility to Parliament: <www.aandc-aadnc.gc.ca>.
- 15.
Although the Governor General is the official representative of the head of State, the Queen, he always acts under the advice of the Prime Minister. Legally, the Governor General holds every executive powers, but de facto these powers belong to the Prime Minister and his cabinet.
- 16.
Lieutenant-Governors, much like the Governor General, hold every executive powers but always act under the advice of premiers and their cabinets.
- 17.
See the Commissioner of Nunavut’s website: <http://www.commissioner.gov.nu.ca/english/commissioner/role_commiss.html>, the Commissioner of Yukon’s website: <http://www.commissioner.gov.yk.ca/about/role.html>, and the Commissioner of the Northwest Territories’ website: <http://www.commissioner.gov.nt.ca/role/>.
- 18.
Hogg (2008) at 332.
- 19.
See Yukon Act, supra note 8; Northwest Territories Act, supra note 8; Nunavut Act, supra note 13.
- 20.
Constitution Act, 1982, ss 42(1)e) and 42(1)f), being Schedule B to the Canada Act 1982 (UK), 1982, c 11. For the 7/50 procedure, see supra note 2. In addition, other laws complement this procedure, see An Act respecting constitutional amendments, SC 1996, c 1. On this topic, see Pelletier (1998), p. 271.
- 21.
The constitutional amendment procedure is such a heavy undertaking that it makes even the slightest constitutional reform very difficult (see supra notes 2 and 20).
- 22.
Supra note 10 at 348.
- 23.
Cameron and Simeon (2002) at 63.
- 24.
Ibid.
- 25.
Ibid at 70.
- 26.
Ibid.
- 27.
Ontario recently entered the equalization payment program as a “have-not” province and is therefore entitled to receive transfer payments. One reason at the source of this change is that Ontario’s manufacturing industry, especially the automobile industry, is suffering from high gasoline prices, low U.S. demand, and a strong Canadian dollar. Ontario remains, however, a financial hub in Canada. For the constitutional principle of equalization payments, see Constitution Act, 1867, supra note 5, s. 36(2).
- 28.
No province, other than Quebec, is really insisting on limiting federal spending powers in provincial jurisdictions. The Government of Quebec has taken the habit of referring to the “presumed federal spending power” as the Supreme Court of Canada has not yet fully acknowledged this power. It has only done so in obiter dicta.
- 29.
Fiscal imbalance is a concept that refers to the difference that exists between provincial and federal revenues, taking into account their constitutional responsibilities. The Government of Quebec estimates that this matter is not yet solved in Canada, despite the revision of equalization that was carried out in the frenzy of the 2007 federal budget and even despite the fact that the financial crisis currently affecting the entire world has transformed the Canadian government’s budget surpluses into deficits. According to Quebec, the solution to fiscal imbalance depends not only on increased equalization but also on an increase in federal transfers for postsecondary education and social programs and on a federal transfer to the provinces of tax points or tax room. Basically, this would mean revising equalization, federal transfers, and the tax base in a way that would provide provinces with a certain financial stability, an acceptable fiscal capacity considering their responsibilities, and predictability in their budget planning.
- 30.
The flattening of the world refers to the bestseller by Friedman (2005).
- 31.
To illustrate this tendency, let us ponder over the Bloc Québécois, which elects members of Parliament only among Quebec ridings, and the Canadian Alliance (previously known as the Reform Party), a Western political group that has merged with the Conservative Party of Canada in 2003.
- 32.
On September 11, 2009, Ontario and Quebec premiers and their respective cabinets held their second joint meeting, at which they signed the Ontario-Quebec Trade and Cooperation Agreement to reduce trade barriers, improve labor mobility, and make the two provinces more competitive in the global economy. See Office of the Premier, News Release, “Le Québec et l’Ontario continuent de renforcer leur partenariat” (11 September 2009) online: <http://www.premier-ministre.gouv.qc.ca/actualites>. A third joint meeting was held on June 16, 2010, where both “cabinets expressed their desire to develop and broaden their relations” and suggested an annual Ontario–Quebec meeting. See Office of the Premier, News Release, “Cooperation between Ontario and Québec is yielding tangible results” (16 June 2010) online: <http://www.premier-ministre.gouv.qc.ca/actualites>.
- 33.
There is currently an agreement between Alberta and British Columbia, the Trade, Investment and Labour Mobility Agreement, which makes the partnership very competitive, see <http://www.tilma.ca/>.
- 34.
See Hydro Québec, Press Release “New Brunswick and Québec conclude negotiations following energy agreement” (20 January 2010) online: <http://www.hydroquebec.com/communiques/>.
- 35.
See Office of the Premier, News Release, “Coopération accrue entre le Nouveau-Brunswick et le Québec en matière d’approvisionnement, de mobilité de la main-d’œuvre et de francophonie” (3 October 2008) online: <http://www.premier-ministre.gouv.qc.ca/actualites>.
- 36.
It is important not to confuse multiculturalism and multinationalism. Multiculturalism reflects the existence of many cultures, whereas multinationalism refers to more than one nation in a given area. A single nation can be deemed multicultural.
- 37.
The Canadian State recognizes two official languages: English and French. However, this applies only to the federal order of government. Among the Canadian provinces, only New Brunswick is officially (and constitutionally) bilingual.
- 38.
The Constitution Act, 1867, supra note 5, s 94, recognizes a contrario the civilian tradition in Quebec private law. The Constitution Act, 1982, supra note 20, s 59, stipulates that subsection 23(1)a) (concerning some rights relating to education in the official minority’s language, for instance English in Quebec) will apply only to Quebec should it decide so. However, every other stipulation laid down in section 23 applies to Quebec.
- 39.
By a motion approved by a very strong majority on November 27, 2006, the Canadian House of Commons recognized that the Québécois form a nation within a united Canada. However, this resolution has no constitutional value. See the House of Commons of Canada, 39th Parliament, 1st Session, Journal no. 87, November 27, 2006, at <http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=39&Ses=1&DocId=2539924>.
- 40.
The Aboriginals are recognized as peoples in the Constitution Act, 1982, supra note 20, ss 35 and 35.1. S 35(2), specifies that the term Aboriginal peoples designates the Indians, the Inuit, and the Métis.
- 41.
For many Canadians, there can be only one nation in Canada: the Canadian nation. For most Quebecers, Quebec forms a nation, in the sociological and political sense, within another nation: Canada. Canada’s multinational character has never really been admitted by federal authorities, and there is no explicit mention of it in the Canadian Constitution.
- 42.
Beyond ss. 35 and 35.1 of the Constitution Act, 1982, supra note 20, it is noteworthy that s. 25 lays down measures to ensure that the already existing rights—ancestral or treaty based—of Aboriginal peoples shall not be affected, construed, or derogated to under the Canadian Charter of Rights and Freedoms (being Part I of the Constitution Act, 1982, supra note 20).
- 43.
The Government of Quebec is behind the creation of the Council of the Federation. For its inspiration, see Pelletier (2001), at 91–96.
- 44.
Council of the Federation Founding Agreement, December 5 2003. The agreement can be found at <http://www.councilofthefederation.ca/pdfs/COF_agreement.pdf>.
- 45.
Ibid.
- 46.
Council of the Federation Web site, Report and Desisions, 23–24 February 2004, available at <http://www.councilofthefederation.ca/pdfs/cof_report_e.pdf>.
- 47.
See supra note 29.
- 48.
The Council of the Federation proved itself in September 2004 during the negotiations between the provinces, the territories, and the federal government for an increase in federal transfer payments for health care. The results obtained by the provinces and territories were conclusive. See Council of the Federation, News Release, “Premiers Propose Alternative to Prime Minister’s Offer” (14 September 2004) online: <http://www.councilofthefederation.ca/pdfs/premiersrelease_sept14.pdf>.
- 49.
For further reading on the Council of the Federation assessment, see, e.g., Pelletier (2008), at 203–223. See also Constructive and Co-operative Federalism? A Series of Commentaries on the Council of the Federation (Montreal: Institute for Research on Public Policy, 2003) online: <http://www.irpp.org/pubs/council_federation.php> and Bakvis et al. (2009) at 108–111 and 132.
- 50.
See supra note 43.
- 51.
The Government of Quebec is very supportive of strengthening an economic union in Canada through a better cooperation between the two orders of government. Much can be done by the provinces themselves in their own jurisdictions in terms of eliminating trade barriers. However, Quebec (and Alberta) is opposed to the initiative of the federal government aiming to create a unique securities commission in Canada. Quebec sustains that the creation of such an institution does not belong to the competence of the Canadian Parliament. Quebec is also against, for the same reason, the instauration by the Government of Canada of a single securities regulation that would be applicable to the whole country. For Quebec, if a common securities commission is to be created, it should be by virtue of an agreement between the provinces. In this regard, on October 16, 2009, Minister of Justice and Attorney General of Canada Rob Nicholson announced the intention of the Canadian Government to seek the opinion of the Supreme Court on the constitutionality of the enactment and implementation of a single Canadian common securities regulator. See Department of Justice Canada, News Release, “Government of Canada intends to seek opinion of Supreme Court of Canada on constitutionality of proposed Canadian securities legislation” (16 October 2009) online: <http://www.justice.gc.ca/eng/news-nouv/>. Decisions by the Alberta Court of Appeal and the Court of Appeal of Quebec have already declared the project unconstitutional. See Reference Re Securities Act (Canada), 2011 ABCA 77 and Quebec (Procureur général) c Canada (Procureur général) 2011 QCCA 591, [2011] RJQ 598. During the Supreme Court hearings, Ontario was the only province to totally agree with the position of the Government of Canada.
- 52.
The choice to become a federation, which was made in 1867 with regard to Canada, resulted among other things from a consideration of the identity-related needs of Lower Canada (today, Quebec). The legislative union (or unitary State), so very much wanted by Sir John A. Macdonald, one of the main architects of the political compromise that led to the birth of Canada, was not only against the aspirations of Quebec above all but also against the Atlantic provinces’ thirst for autonomy.
- 53.
Reference re Secession of Quebec, [1998] 2 SCR 217, at para 244, 251–252.
- 54.
Supra note 20.
- 55.
In 2006, the population of Nunavut was 29,325, of whom 24,640 were Inuit. On this point, see Statistics Canada, Aboriginal peoples, 2006 Census, available online at <http://www.statcan.gc.ca/>.
- 56.
In 2006, more than 25 % of Nunavut residents declared an Inuit language, either Inuktitut or Inuinnaqtun, as their first language. More than 60 % identified this language as being the language most often spoken at home. On this point, see Statistics Canada, Languages, 2006 Census, available online at <http://www.statcan.gc.ca/>.
- 57.
Supra note 20.
- 58.
Ibid, s.35.1, added by the Constitution Amendment Proclamation, 1983 (see SI/84–102).
- 59.
Supra note 20.
- 60.
See Benoît Pelletier supra note 20. In this text, the author noted that the consent of the Aboriginal peoples for constitutional amendments affecting their rights is not required, legally speaking, but that such a consent is certainly necessary from a political point of view.
- 61.
Consensus Report on the Constitution: Final Text, Charlottetown, August 28, 1992 (Charlottetown Accord), at <http://www.saic.gouv.qc.ca/publications/Positions/Part3/Document27_en.pdf>. Two separate referendums were held on the same day on the Charlottetown Accord: one in Quebec, the other in the rest of Canada.
- 62.
See, for example, Wewaykum Indian Band v Canada, [2002] 4 SCR 245.
- 63.
Quasi constitutional laws take primacy over laws of the same order of government either because the legislator itself stipulated so or because jurisprudence recognizes such primacy.
- 64.
See for instance Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), [2005] 3 SCR 388; Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), [2004] 3 SCR 550; R v Marshall, [1999] 3 SCR 533; Delgamuukw v British Columbia, [1997] 3 SCR 1010; and R v Sparrow, [1990] 1 SCR 1075.
- 65.
In 1981, in a highly significant decision, the Supreme Court of Canada declared that the patriation project of the Canadian Constitution, which at the time was supported only by the Canadian Parliament and government and by two of the ten provinces, was legal but broke with constitutional conventions. This had the effect, no doubt desired by the Court without being said outright, of bringing the political players back to the constitutional negotiation table. That is what happened in November 1981. This federal–provincial conference, spoken of as a last chance, resulted in an agreement between the federal government and all the provinces, except Quebec, and led to the patriation of the Canadian Constitution. See Reference re a Resolution to Amend the Constitution, [1981] 1 SCR 753.
- 66.
In 1998, the Supreme Court of Canada made a statement about the legality of a process for the unilateral secession of Quebec. It concluded that, when it comes to Canadian constitutional law, a clear vote on the part of Quebecers on a clear question would lead, in the case of a secessionist victory, to an obligation on the part of political players in Canada to negotiate the terms of the secession on the basis of a certain number of principles inherent to the Canadian Constitution. The constitutional amendment procedure would then apply to constitutionalize the result of such negotiation, in particular to render official the secession of Quebec. See Reference re Secession of Quebec, supra note 53.
- 67.
The provinces hold exclusive jurisdictions when it comes to municipal affairs, see Constitution Act, 1867, supra note 5, s 92(8).
- 68.
See, for example, the address by then Prime Minister Paul Martin in reply to the speech from the throne at <http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=aarchives/sft-ddt/2004_1_reply-eng.htm>: “That is why we have made a new deal for Canada’s municipalities one of our highest priorities. That is why we created a new Secretariat. We want the voice of our municipalities to be heard nationally”. See also the speech from the throne to open the 37th Parliament of Canada at <http://pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=publications&doc=aarchives/sft-ddt/2004_1-eng.htm>.
- 69.
- 70.
See supra note 69 and accompanying text.
- 71.
The term constitutional entrenchment refers to the insertion of a measure into the Constitution.
- 72.
The 1987 Constitutional Accord, June 3, 1987 (The Meech Lake Accord), at <http://www.saic.gouv.qc.ca/publications/Positions/Part3/Document22_en.pdf>.
- 73.
Regional in this context refers to the regions (British Columbia, Prairies, Ontario, Quebec, and Atlantic) of Canada.
- 74.
See the website of the Canadian Intergovernmental Conference Secratariat at <http://www.scics.gc.ca/>.
- 75.
Agreement on Internal Trade (AIT), 1994, available online at <http://www.ait-aci.ca/>.
- 76.
Social Union Framework Agreement (SUFA), 1999, available online at <http://www.socialunion.gc.ca/>.
- 77.
For further discussions on the concept of federal loyalty, see Jean-François Gaudreault-Desbiens, “The Challenge of Maintaining a Federal (or Quasi-Federal) Culture: Canadians Musings on the Legal and Political Dynamic of the European Constitutional Project” from the Conference Towards A European Constitution: from the Convention to the IGC and beyond, organized by the Federal Trust and the University Association for Contemporary European Studies, Goodenough College, London, July 2004, 9–10, online: <http://www.fedtrust.co.uk/default.asp?groupid=0&search=desbiens>.
- 78.
See “Building Stronger Institutions” in the Speech from the Throne 2008: Protecting Canada’s Future, 2008, online: <http://www.sft-ddt.gc.ca/eng/media.asp?id=1364>; see also Robert Dutrisac, “Harper courtise le Québec,” Le Devoir (20 December 2005) online: <http://www.ledevoir.com/>.
- 79.
See Pelletier (2010), p. 251.
- 80.
After having said that the Meech Lake Accord was “the popular code name of a federal–provincial heads-of-government agreement,” Edward McWhinney, concerning the Charlottetown Agreement, said: “But this also meant the incidental political horse-trading necessary to secure its preliminary adoption—again by a heads-of-government consensus—was exposed much more clearly to public view, and consequent criticism. Mulroney, to counter charges of elitism leveled against the essentially oligarchic, intergovernmental process that had been followed throughout the Meech Lake exercise, made a symbolic gesture to Trudeau-style participatory democracy. In a ‘gambler’s throw,’ he submitted the Charlottetown Agreement to a nation-wide referendum. Public support thus enlisted, he believed, would compel a prompt across-the-board ratification of the Agreement by the provincial legislatures as a constitutional amendment. This was a bold move. It reflected Mulroney’s confidence in direct democracy and its impact on political decision-makers. Certainly, his position contrasted sharply with the arcane process and behind-the-scenes negotiation and bargaining effectively enjoined by the new constitutional amending machinery established under the Trudeau government’s Constitution Act of 1982”. See McWhinney 2003), at 18–20.
- 81.
Supra note 5.
- 82.
Francophones in Canada are a well-organized minority. They are represented by different organizations across the country. As an example, consider the Fédération des communautés francophones et acadienne du Canada, which has become a nationwide as well as an international voice and representation of French-Canadian communities. Although francophone groups sometimes meet individual premiers, they do not meet premiers in the context of provincial or federal–provincial conferences. Francophone organizations are not invited to meet all the Canadian premiers at the same time.
- 83.
Some of these fora have been mentioned before: the Council of the Federation, the Council of Ministers of Education, the Canadian Council of Ministers of the Environment.
- 84.
Kumanan Wilson explained the pros and cons of intergovernmental collaboration while addressing the issue of the implementation of a Canadian Agency for Public Health in the following terms: “The collaborative approach offers many advantages, including consideration of the interests of all orders of government, minimizing conflict and reducing the likelihood of violating jurisdictional sovereignty. […] The primary difficulty with collaborative approaches is the potential for the decision-making process to lack transparency and for accountability to become blurred. This permits each order of government to blame the other when agreements do not succeed”. See Wilson (2004), p. 222.
- 85.
The expression two solitudes is often used to describe the differences that separate Quebec from the rest of Canada, whether due to identity clashes or different perceptions of Canadian federalism and its future.
- 86.
Supra note 20.
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Pelletier, B. (2013). Intergovernmental Relations in Canada: A Horizontal Perspective. In: López - Basaguren, A., Escajedo San Epifanio, L. (eds) The Ways of Federalism in Western Countries and the Horizons of Territorial Autonomy in Spain. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-27717-7_2
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