In this issue:

The Institute’s plans and priorities for 2019
The flawed USMCA approval process
Pipelines and Responsible Government
The Constitutional Formation of the Government of New Brunswick
The Origin of the principles of authority and constitutionalism

The Institute’s plans and priorities for 2019

The work of the Institute of Responsible Government has two dimensions: the scholarly dimension of developing the model of Responsible Government, and the educational dimension of getting the word out about the system’s workings and political impact. Over the last few years, we have been making progress on both fronts, and that progress will continue into 2019.

Central to both of these dimensions has been the Institute’s presentations at the Congress of the Humanities and Social Sciences, in Toronto in 2017 and in Regina in 2018. The 2019 Congress will take place in Vancouver in the first week of June, and the Institute is making plans to be there as well.

Meanwhile, the paper that Institute President Vincent Pouliot presented at the 2018 Congress, “Federalism Through Parliament in Accordance with the Constitution Act (1867),” is scheduled for publication in the Journal of Parliamentary and Political Law in its first 2019 issue.

Over the last two years Vincent, along with Institute Organizational Director Marina Cabrera, has travelled through most of Canada, from Nova Scotia to Saskatchewan, meeting with university deans and political science professors to create interest in the work of the Institute. The Congress location in Vancouver will allow Vincent and Marina to fill in some of the holes, in Alberta and British Columbia. At the same time, they will be drawing on previous contacts for advice and speaking opportunities.

Institute representatives would be pleased to give a talk or lead a seminar explaining how the model of Responsible Government ensures the influence of the people in Parliament. If you would like to host such an event, please contact the Institute at i[email protected]

The Institute will also prioritize two long-term projects that are essential to its long-term educational goals. Marina will take the lead in developing a Responsible Government simulation game, which will be a tool in developing the model as well as a possible commercial project.

Vincent will devote much of his time to working on his book, The Struggle for Responsible Government, which will be the most comprehensive account to date of the model and the history that led to it and will help spark more extensive discussion of Responsible Government.

Any comments on these plans, or suggestions for other projects, are most welcome. Please let us know what you think: [email protected]

Bob Chodos
Communications Director

The flawed USMCA approval process

In Canada, International treaties such as the United States–Mexico–Canada Agreement (USMCA), agreed to on September 30, are ratified by the sanction of the Governor in Council.

The approval of Parliament is assumed to have been given when the Prime Minister, possessed of the authority to speak and act on behalf of the House of Commons, advises the Governor in Council to adhere to the treaty. The Governor General must sanction the adherence to the treaty upon this advice.

Clearly, the process is flawed because it was only after the treaty was concluded that Parliament and the people learned that section 32.10 effectively gives the USA a veto over any free trade agreement that Canada might negotiate with China and other “non-market” economies (see:USMCA -Section32).
In the Governor’s Council of the federal system of Responsible Government conceived by Confederation, the people’s will to be governed in common is represented by the leader of the House of Commons; their will to be governed locally is represented by the leader of the Senate representing the interests of the provinces.

Most international treaties require provincial respect for certain obligations. Hence, to be legally bound to observe them, the rule of law requires the provinces’ consent. A proper mechanism for ratifying treaties needs to include representation of the people’s local interests as well as their common interests.

It is the role of the Governor General to sanction the exercise of the powers of the State in accordance with the well-understood wishes and interests of the people represented in Parliament. Furthermore, she cannot sanction the will of Parliament unless both leaders proffer the same advice as to how the people wish to govern themselves.

Human nature acts upon these three political actors to protect their legitimate jurisdictions. Their jurisdiction is fairly determined by the legitimate constitutional interests of the people represented in Parliament. If she is not convinced that a matter has been fully understood, the Governor General can ask her advisers to resubmit it to their respective Houses for further debate.

Because the Governor General holds this balance of power, she is able to ensure that her government remains constitutional, respectful of the law and in the service of the people.

Under such a constitutional structure, Canada’s negotiating team could not have concluded the negotiations leading to the USMCA without the informed approval of Parliament.

Vincent Pouliot
President

Pipelines and Responsible Government

By Eric Hamovitch

Energy East, Northern Gateway, Trans Mountain. Three separate pipeline projects promoted by three different companies. All of them intended to carry Alberta oil to new markets. All of them stalled or dead. A fourth pipeline, Keystone XL, running mostly through the United States, appears likely to go ahead in 2019, but only after long delays.

Hailed by some politicians as a 21st-century nation-building exercise evocative of the 19th-century building of the Canadian Pacific Railway, expansion of the pipeline network never caught the popular imagination and has run up against a series of obstacles, some of them constitutional.

In November 2016 the federal government announced its rejection of the Northern Gateway twin pipeline project, which was to carry British Columbia natural gas eastward and Alberta diluted bitumen west to a terminal at Kitimat on the northern B.C. coast. Environmental issues — in particular concerns over tanker traffic in the fragile, island-studded waters near Kitimat — were a leading cause of its decision.

Next to go was Energy East, intended to carry Alberta bitumen east to a refinery and port in New Brunswick but hobbled by opposition from environmentalists and municipal authorities, especially in Quebec, and also facing uncertain market conditions. The plug was pulled in October 2017.

That leaves Trans Mountain, heavily endorsed by the federal government but thrown off track by an August 2018 ruling from the Federal Court of Appeal reversing regulatory approval on the grounds that First Nations along the pipeline route had not been adequately consulted. The project involves tripling the capacity of a pipeline that, since 1953, has carried oil from Edmonton to the Vancouver-area port of Burnaby.

On the same day as the ruling, shareholders of pipeline owner Kinder Morgan Ltd. agreed overwhelmingly to accept a $4.5-billion buyout offer from the federal government. Construction costs would add $9.3 billion to the total bill facing Canadian taxpayers, unless outside investors can be brought in.

This outcome was cheered in Alberta but condemned by many in British Columbia, appalled by Ottawa taking sides in a dispute so heated that it had led earlier to a brief trade war between the two provinces, including a partial Alberta boycott of B.C. wine. Ottawa argued that federal jurisdiction in interprovincial works gave it the constitutional authority to act, even when pitted against areas of provincial jurisdiction. As some British Columbians saw it, Alberta would gain most of the financial benefits, and B.C. would incur most of the environmental risk.

Concepts of Responsible Government provide a key to understanding the conflict and its possible resolution. With the provinces properly represented in the Senate of Canada, as intended by the drafters of the 1867 Constitution, the federal government could act with greater legitimacy.

The various provincial factions represented directly in Ottawa would be in a stronger position to influence the actions of the federal authorities and would not have to submit to the partisan interests of the Prime Minister in the House of Commons. Because provincial interests would have to be fully taken into account in any federal decision, the federal government would be able to resolve issues like the Trans Mountain pipeline dispute (hopefully before provinces started boycotting one another’s products) rather than exacerbating them.

The Constitutional Formation
of the Government of New Brunswick

In a system of Responsible Government, constitutional principles and practices are designed to ensure the government is constituted by authority of the people. How do these principles and practices operate in a case like the recent election in New Brunswick, where it is not clear that any party can command a majority of the legislature?

It is the duty of the lieutenant governor to choose a member of the legislature he or she believes can command a majority to attempt to form the government. This leader then forms a cabinet with other members based on an agreement regarding the political program the administration will pursue upon the approval of the legislature.

The leader then writes up the Speech from the Throne with the Lieutenant Governor, who addresses the legislature setting out the priorities, policies and measures the administration will pursue upon its approval.

If the legislature, possessed of the authority of the people by election to speak and act on their behalf, approves the Speech from the Throne, it confides the authority in the administration to pursue this program and govern the province until such time as it revokes this authority by a vote of non-confidence. If the legislature votes down the Speech from the Throne,it refuses to authorize this leader to direct the government on behalf of the people.

The lieutenant governor would then reconsider his or her choice of leader. If need be, according to Lord Elgin, the lieutenant governor must “make himself a mediator and moderator between the influential of all parties” to help them conciliate the interests represented in the legislature into a program the people can support. Only failing this should the lieutenant governor impose the burden of a new election on the people.

In New Brunswick, Lieutenant Governor Jocelyne Roy-Vienneau authorized incumbent Premier Brian Gallant to form the government, even though he didn’t win a majority or even a plurality. According to Lord Durham, it is up to the Lieutenant Governor to choose one she believes can command a majority of the legislature. As he wrote in his famous report in 1839, this is one of “those wise provisions by which alone the working of the representative system in any country be rendered harmonious and efficient.”

She may have been influenced by Mr. Gallant’s position as the incumbent Premier at the time of the election. When Responsible Government was conceded in the Province of Canada by Lord Elgin in 1848, at a time when the people’s representatives in the legislature had the freedom to vote according to their conscience, it was not clear who would vote for the political program the prospective government sought to implement.

The first order of the legislature was to appoint a speaker. The incumbent leader from Upper Canada, William Draper, nominated Sir Allan MacNab. Robert Baldwin objected that Draper’s choice was not bilingual and he proposed Augustin-Norbert Morin. The assembly elected Morin speaker by a significant majority.

Even so, Draper crafted the Speech from the Throne with Lord Elgin. Only when the legislature passed Baldwin’s motion to the effect that Draper’s ministry did not enjoy the confidence of the country did Lord Elgin call on Louis-Hippolyte Lafontaine to form the government. So there would seem to be some precedent for an incumbent premier to continue in his position until a vote of non-confidence forces him to resign.

If the legislature votes down the Gallant Government’s Speech from the Throne, the Lieutenant Governor’s duty remains. The majority vote against Mr. Gallant would indicate the possibility that Opposition Leader Blaine Higgs could command a majority. If she called upon Mr. Higgs and Mr. Higgs assured him that the three People’s Alliance members would vote with him to give him a majority, then the Lieutenant Governor must permit the will of the people as expressed by their duly authorized representatives in the legislature to confide the government in Mr. Higgs.

Vincent Pouliot
President