Category: Law

Posts about law-making, the courts, and legal concepts in general

Governing from the Centre: The Concentration of Power in Canadian Politics

Donald Savoie’s 1999 book is the single-best account I have read of the functioning of Canada’s federal government. It focuses on the growth of the strength of ‘the centre’ of government over the previous thirty years, meaning the prime minister, Prime Minister’s Office, Privy Council Office, Department of Finance, and Treasury Board Secretariat. It discusses every important actor in Canada’s federal government, with specific attention paid to the prime minister, cabinet, deputy ministers, the Clerk of the Privy Council, line departments, the Public Service Commission, and so on.

The overwhelming message is about the new dominance of the Prime Minister: over cabinet colleagues, the central agencies, and over parliament itself, which Savoie argues has a diminished capacity to hold the government to account. Savoie devotes considerable attention to the internal structures and machinery of the civil service, as well as the incentives experienced by individuals within it.

I strongly recommend the book for civil servants (especially those who deal with the central agencies or aspire to join them) and for anyone with a strong interest in how Canada’s government functions.

Environmental Defence on the oil sands

Environmental Defence has issued a new report, explaining why Canada’s oil sands expansion policies risk more than cancelling out efforts to control greenhouse gas emissions in other areas:

“Emissions from the tar sands are projected to double from 2010 levels by 2020, cancelling out all other efforts across the country to reduce emissions and sending Canada soaring past the 2020 climate change target that it shares with the United States.”

Barriers to mitigating the climate impacts of the tar sands (PDF)

Harrison on bureaucrats and the courts

In Chapter 2 it is suggested that even if politicians are inclined to shirk their environmental responsibilities, they could be undermined by zealous bureaucrats in ministries or departments of the environment. The picture that emerges from Chapters 3 through 6, however, is one of conscientious bureaucrats severely constrained by limited administrative resources and political support. Since new regulations require cabinet approval, bureaucrats could only accomplish so much within the confines of hollow enabling statutes. Similarly, when regulations turned out to be flawed, as was the case with the regulations issued under the Fisheries Act, bureaucrats’ hands were tied in the absence of cabinet support for regulatory reforms. (p. 172 hardcover)

…

Thus far, relatively little attention has been paid to the role of the courts. Although historically the courts have been a bit player in Canadian environmental policy-making, in the aftermath of Oldman Dam the role of the courts clearly demands greater attention. As an institution, the courts do not fit neatly within the categories of federal and provincial governments. Moreover, because there are no mechanisms to hold judges accountable to either politicians or the public – indeed lifetime tenure is designed to insulate the court from the whims of popular opinion – the institution of the courts may be especially responsive to institutional or ‘good policy’ motives of its members. ‘Rogue judges’ may ultimately exercise greater influence than ‘rogue bureaucrats.’ (p. 173)

Harrison, Kathryn. Passing the Buck: Federalism and Canadian Environmental Policy. 1996.

Harrison on federalism and environmental policy

While not denying the existence of either constitutional limitations or resistance from at least some of the provinces, I argue that the explanation for federal and provincial roles in environmental protection is not complete without considering governments’ electoral incentives to extend or defend their jurisdiction over the environment in the first place. Environmental protection typically involves diffuse benefits and concentrated costs, and thus offers few political benefits but significant political costs. One can expect the opponents of environmental regulation to be better organized, informed, and funded than the beneficiaries. Moreover, since environmental protection typically involves the imposition of costs on business, strengthening environmental standards can run counter to voters’ concerns about the economy and unemployment. Thus, the absence of electoral incentives, rather than constitutional constraints or provincial opposition per se, may explain why the federal government did not pursue a larger role in environmental protection throughout the 1970s and early 1980s. The reality may be closer to a federal surrender than the provincial victory implied by many authors. (p. 5 hardcover)

Harrison, Kathryn. Passing the Buck: Federalism and Canadian Environmental Policy. 1996.

Strangers Devour the Land

Boyce Richardson’s Strangers Devour the Land is not an academic text, but rather a series of personal narratives interspersed with selections of courtroom testimony. The book describes the traditional lifestyle of the Cree of northern Quebec, and the influence the James Bay hydroelectric developments had upon their lives between the inception of the project in the 1970s and the author’s return visits during the 1990s. Richardson is clear in his advocacy of the Cree perspective and is open about his willingness to edit his work to meet with the approval of his Cree subjects and rebut the arguments made by their opponents at Hydro-Quebec and within the Quebecois government. (p. 204, 289, 290 paperback) Nonetheless, the account comes across as a sensitive, sympathetic, and honest one for all parties concerned – a text that both furnishes detailed observations of what has transpired and which engages in a nuanced way with the political and moral complexities that accompany them.

The dynamic at the heart of the book – between First Nations people trying to maintain their most important traditions and an encroaching world hungry for natural resources – continues to play out in Canada. While the parallels between the James Bay hydroelectric projects of the 1970s and today’s oil, gas, and mining projects are numerous, it is not fully clear what the experience with the former can help us improve about the latter. If anything, the contemporary parallels show how the tension between peoples seeking to perpetuate traditional lifestyles on territory they have held for centuries and others who wish to disrupt those lifestyles for economic or nationalistic purposes persists and how Canada has a poor record of reaching equitable outcomes through fair means.

Quebecois nationalism and the northern Cree

Robert Bourassa – Premier of Quebec from 1970 to 1976 and 1985 to 1994 – did more than anyone to advance the James Bay hydroelectric projects. Now, his name is attached to a 7,722 megawatt generating station and a reservoir with a surface area of 2,835 square kilometres. For Bourassa, the construction of hydroelectric capacity in the James Bay region was a vital measure for promoting Quebecois economic growth and thus the national integrity of Quebec. (p. 22, 303, 329) The scale of work envisioned was indeed vast: the entire La Grande river would cease to flow below the blockage for an entire year as the reservoir filled. (p. 191)

Richardson’s intimate account of the hunting lifestyle of the Cree contrasts sharply with the perception of the province that they had essentially abandoned their traditional practices and that the lands they inhabited were effectively empty. (p.33-4, 72, 76, 195, 280) Richardson convincingly documents the inadequacy of the environmental and social impact studies conducted by the government of Quebec, as well as their quickness to discount the importance of the land and the people reliant upon it. (p.112, 132, 163, 173, 246, 298, 344) Similarly, the Quebecois government was biased toward the over-estimation of future electrical needs, and quick to use unrealistic projections as justification for the scale of the massive James Bay projects. (p. 255-259) It is logically possible to separate procedural questions from questions about outcomes; the construction of the dams may have been much less objectionable with the full prior and informed consent of the First Nations in the region and with suitable compensation. At the same time, such an approach may still have clashed with the perceived relationship between the Cree and the land described by Richardson, and in particular with the notion of the people as perpetual stewards of the bounty of nature. (p. 89) Arguably, it would be inappropriate for any one generation or small set of generations to break that stewardship, even if compensated financially. Indeed, this perspective is highlighted in the book’s epilogue, in which the Cree who have benefitted from the 1975 James Bay And Northern Quebec Agreement were nonetheless resisting Quebecois proposals for additional dams on the La Grande River, the Great Whale and surrounding rivers, and the Nottaway, Broadback, and Rupert Rivers. (p. 347)

Court proceedings and settlement

In addition to quoting at length from the testimony given by members of the Cree community and expert witnesses, Richardson comments extensively on the legal process through which the Cree community sought to respond to the work initiated without consultation by Hydro-Quebec. He discusses the strategies employed by lawyers arguing both sides of the case, and describes Quebec Superior Court Justice Albert Malouf’s 1973 judgment in favour of the Cree, ordering the James Bay Development Corporation to “immediately cease, desist, and refrain” from construction and from interfering with the rights and territories of the Cree petitioners (orders which Richardson alleges were not followed, even during the short span before the first appeal was heard). (p. 296, 299) The book goes on to describe the subsequent Quebec Court of Appeal decisions that stripped the Malouf ruling of effectiveness and eventually compelled the acceptance of the James Bay and Northern Quebec Agreement in 1975. (p. 296-309)

The most notable feature of the initial legal proceedings may be the way in which they demonstrated the inadequacy of the social and environmental impact studies conducted by Hydro-Quebec and the government of the province. Most startlingly, Richardson describes how construction on the first phase of the James Bay project began with no prior consultation and that even when the Cree first sought remedy through the courts, lawyers from the James Bay Development Corporation continued to argue that they had no rights which could be infringed. Later, the corporation’s own staff anthropologist Paul Betrand testified that the project would create a “crisis… in the Cree culture”, that there would be an “immense impact”, and that “the shock [was] going to be brutal”. (p. 247-248) Such testimony was effectively rejected by the various courts of appeal that assessed Malouf’s initial conclusions, preferring to see the Cree as having transitioned to a white-style life and lacking the legal right to object to Hydro-Quebec’s plans. It is therefore convincing that the subsequent settlement – though it did involve considerable financial compensation – was effectively made under duress, with the prospect of the complete dismissal of the Cree claims driving them to accept an arrangement that would not have been tolerated without coercion. Under the terms of the settlement, the hunting territory of the Mistassini (who feature prominently in Richardson’s account) is reduced from 100,000 square miles to 7,000 and their exclusive right to hunt is granted provided with the provision that it not “conflict with other physical activity or public safety”. (p. 324)

Reading Richardson in a climate change context

In one passage, Richardson neatly summarizes many of the key ethical claims of the book:

Since eighty-eight square miles of the island of Montreal support 2 million, most people cannot see how such huge territories can in equity be left to so few people. If these lands are needed in the public interest, it is argued, then unfortunately the Indians will have to adjust. The question is, however, how are the lands to be handled and how will the Indians be allowed to adjust? The manner of doing the deed reveals our quality as a civilization. For the Indians have always been there: it is not their fault that other people have arrived, making claim to the lands on which their whole culture and way of life has been built. In decency and justice, they cannot simply be trampled over: our own society would be infinitely richer if we could find the means to give Indians a genuine choice, some real control over the pace of change, as they face the inevitable arrival in force of this alien civilization. (p. 225)

To these challenges must now be added the additional challenge of adapting all of Canadian society to the needs of the global climate. Failure to do so risks imposing as large a change in circumstances as has been experienced by the Cree of northern Quebec upon people everywhere, indigenous and non-indigenous alike.

There are many parallels between the James Bay development that began in the 1970s and the expanding oil sands today. Indeed, much of the language about the economic potential of resource exploitation is nearly identical. In the context of the James Bay project, Richardson describes how politicians and engineers defending the project “rave[d] on about how hospitals, factories and schools will have to close down if the project is not built” (p. 255); in 2011, Minister of the Environment Peter Kent asserted that for Canada to meet its Kyoto target it would be necessary to “clos[e] down the entire farming and agricultural sector and cut… heat to every home, office, hospital, factory and building in Canada”. As Quebec aspired to achieve influence and prosperity on the basis of exporting hydro-electricity, Alberta and Saskatchewan now hope to do likewise with synthetic crude exports processed from the vast Athabasca oil sands reserves. In both cases, the prospect of wealth could only be achieved by appropriating vast amounts of traditional territory used by First Nations for centuries, and by severely disrupting the lifestyles of these inhabitants. In both cases, aboriginal people are presented with the question of how to respond to resource development, with a difficult choice to be made between resistance through legal or political means and accommodation, which carried the possibility of financial reward.

Richardson’s epilogue complicates the story told by the book. He describes how Cree society has evolved into the 1990s, with new deals between the First Nation and Hydro-Quebec, further expansion of white Canadians into resource industries in the region, and the development of extensive commercial holdings and civil service bureaucracy by the Cree. He highlights the persistence of a hunting culture, while also commenting extensively on the economic and social transformation that has taken place since the James Bay project was first proposed. While the physical impact of the dams is certainly on a vast scale, he concentrates more on the impact of development on the Cree way of life, which has been ambiguous.

Environmentalists and policy-makers today can no longer ignore the dangers associated with the accumulation of greenhouse gasses in the atmosphere. This adds fresh complexity to the utilitarian calculations described in Richardson’s book, such as how the interests of relatively small numbers of hunters with lifestyles dependent on vast amounts of land integrate with the interests of southern urbanites desirous of electricity and a nationalist Quebecois society desirous of wealth and influence, both in and of themselves and as the tangible means of protecting a distinctive culture. All else being equal, the risks associated with climate change must make us more open to dams compared with fossil-fuel sources of electricity, though that rebalancing certainly doesn’t make dams appropriate in all circumstances or nullify the arguments raised against them.

Richardson himself discusses the possibility of moral dilemma “so dearly beloved of moral philosophers, in which both sides were right”. (p.289) Even that categorization may over-simplify the ethical situation presented to the Cree in the 1970s and to Canada’s First Nations today. How are the values and practices of a traditional lifestyle to be maintained or altered as resource nationalism and encroaching globalization inevitably affect Canada’s wildernesses and their traditional inhabitants? How are the possibilities of enrichment through natural resources to be balanced against the reality of degraded land, air, and water – and the increasing reality of a degraded and threatened global climate? Thinking about energy supply in the context of a changing climate also encourages perplexing counterfactual questions: had Quebec not built so much hydroelectric capacity, would people have turned to more climatically-damaging alternatives to produce the same quantity, or would demand simply have been more moderate in the face of higher prices?

The injustices so articulately described by Richardson cannot be denied. They include the influx of thousands of outsiders into their traditional territories, the flooding of trapping land, the diminishment of animal population, and the contamination of fish and drinking water from methyl mercury. (p.344) Without question, Cree families that had subsisted by fishing, hunting, and trapping for centuries had strong grounds to object to construction projects dreamed up for the benefit of outsiders that caused enormous damage to their way of life and culture. Unfortunately, the imposition of undeserved suffering on one group by another is a deeply engrained feature of globalized, capitalist, industrialized society. Indeed, the choices humanity is making now about fossil fuel use threaten to permanently damage the entire planet and the lives of all of its inhabitants for thousands of years, as well as totally destroy the lifestyles and cultures of those living in especially vulnerable areas like the arctic. Quite possibly, the human race has reached a point in which we can no longer avoid inflicting undeserved suffering on one group or another. The question has become how much suffering, imposed through what means, and with what (if any) compensation.

McRoberts on Trudeau and national unity

The argument of this book is that the roots of the present [national unity] crisis lie in decisions made in the 1960s. More specifically, they lie with Pierre Elliott Trudeau’s ‘national unity’ strategy, at the centre of which was an attempt to implant a new Canadian identity. ‘National unity’, it was presumed, meant that all Canadians must see their country and their place in it in exactly the same way.

In particular, this meant persuading Quebec francophones to abandon their historical attachment to the notion of a distinct francophone national collectivity, centred in Quebec and firmly linked to the Quebec government. Through such measures as official bilingualism and a constitutionally entrenched charter of rights, francophones were to be incorporated into Canada as a whole and to adopt a vision of Canada that included multiculturalism and the equality of the provinces.

As this book will show, the national unity strategy failed abysmally to change the way Quebec francophones see Canada. Indeed, the attachment of Quebec francophones to Quebec as their primary identity is stronger than ever, and they are more determined than ever that Quebec should be recognized as a distinct society.

It is ironic that the national unity strategy, although conceived primarily in relation to Quebec, has had its main impact, not in Quebec, but in the rest of the country and has transformed the way many English Canadians think of Canada. As such elements of the Trudeau strategy as a charter of rights, multiculturalism, or the equality of the provinces have become central to English Canadians’ view of Canada, so they have destroyed any willingness to recognize Quebec as a distinct society. Indeed, within the Trudeau strategy these principles were intended to negate Quebec’s claim to recognition.

McRoberts, Kenneth. Misconceiving Canada: The Struggle for National Unity. 1997. (p.xii, paperback)

Daniel Carpenter and Andrew Delbanco on abolitionism

Delbanco’s essay considers abolitionism as a general category of political vision, one impelled by “imprecatory prophets” whose contribution is, in part, to envision what their contemporaries regarded as “preposterous” and to make it seem possible. Abolitionists render a moral case against the existence and endurance of or or more of a society’s perceived wrongs, such as slavery and racial castes. And perhaps others: alcohol, or gender discrimination, or abortion, or the hierarchy of heterosexuality over gay and lesbian lives. The abolitionist then and now requires moral clarity in the form of a sharp division between good and evil in which the viewer and reader can tell the two apart. Abolitionism also requires a refusal to settle for half-measures; it paints these compromises themselves as part of the problem, as resting firmly on one side of the binary divide. And, not least, abolitionism must conjure a world without the evil institution whose demise it seeks: a promised land.

From Daniel Carpenter’s forward to: Delbanco, Andrew. The Abolitionist Imagination. Harvard University Press. 2012.

Perhaps climate change activists should begin calling themselves fossil fuel abolitionists.

Federalism and the French Canadians

As part of my preparation for my August comprehensive exam, I read Pierre Trudeau’s 1968 collection of essays: Federalism and the French Canadians. Compared to the other texts on the list, it is short, clear, and accessible. While some of the controversies addressed are too obscure to be intelligible to someone who has never closely studied the politics of Quebec at the time, the book does set out the general thrust of Trudeau’s thinking in areas ranging from the shortcomings of ethnic nationalism to the importance of bilingualism and federalism in Canada.

Written during the middle of what has subsequently been called Quebec’s ‘Quiet Revolution‘, Trudeau’s book argues that the constitutional structure of Canada’s federation, encompassing Quebec, arose appropriately from the historical circumstances of Canada’s founding. (197) Regarding the future of that province, he describes two alternatives: one in which isolation and ethnic nationalism lead to stagnation and an economy and society falling ever-farther below the world standard, and another in which federalism is renewed, particularly through the universal application of bilingualism across Canada. (32, 48)

Trudeau does an acute job of identifying the shortcomings in an ‘asymmetric’ approach to federalism, in which some provinces are granted special privileges or substantially more power than others. For one, how can provinces granted such rights be appropriately accorded equal influence within the federal government to provinces with lesser powers? Trudeau also discusses the contradictions involved in asserting national self-determination for Quebec. If it is a ‘people’ that holds the right to declare political independence, how can they bring with them an Anglophone minority that doesn’t want to come, or indigenous groups that would choose to remain part of the rest of Canada. Similarly, how can they leave behind Francophones in other provinces? (153) He concludes that a modern state must be polyethnic and that such a character actually empowers and enriches a society through openness, diversity, and tolerance. (156-8, 165)

Trudeau stresses the importance of the division of powers to democratic legitimacy – describing the importance of the electorate being able to identify which level of government bears responsibility for a particular policy. The book also describes Trudeau’s perspective on equalization payments as an essential part of a federation in Canada, justified on the basis that they will allow all provinces – regardless of economic circumstances – to provide the same basic standard of social support. (27, 72)

In one long chapter, Trudeau describes what he perceives as the obstacles to democracy in Quebec. These are chiefly the things which the Quiet Revolution arose against: an overmighty Catholic church, restrictions in speech and education, a parochial elite dominating society, and lingering feelings of historical inferiority and exploitation. (106) He highlights, for instance, the enduring alliance that emerged between the English Canadian elite that played a large role in the Quebecois economy and the Catholic Church which was permitted to operate largely unchanged after the Seven Years’ War and 1774 Quebec Act.

Trudeau frequently expounds on the importance of reason and the allure and inadequacy of emotion for making political arguments or justifying political institutions. He is largely dismissive of nationalism as a force for unity in Canada. He also refers frequently to the importance of expanding individual liberty, using this as the criteria for distinguishing between ‘genuine’ revolutionaries and counter-revolutionaries. Trudeau’s view of constitutional politics is remarkably Burkean, with an emphasis on the idea that Canada’s constitution doesn’t merely reside in one or more constitutional documents, but also in precedents and traditions, and that the fact of standing the test of time is an endorsement of their merit. (20)

In places, the book seems to fall into some of the traps of which the author is wary. In particular, there are segments where close logical argument is abandoned in favour of something more like emotional or rhetorical hand-waving. Nonetheless this is an unusually interesting book. Indeed, it is probably a unique one in Canadian history insofar as it shows the thinking of a politically-minded academic who actually went on to make singular changes to how Canada is governed, via the patriation of the constitution and the Charter.

Peter Russell on recent decades of Canadian constitutional politics

At the beginning of this book I introduced Burke and Locke as representing two different approaches to constitutionalism. For the Burkean, a constitution is thought of not as a single foundational document drawn up at a particular point in time containing all of a society’s rules and principles of government, but as a collection of laws, institutions, and political practices that have passed the test of time, and which have been found to serve the society’s interests tolerably well… From the Lockean perspective, however, the Constitution is understood as a foundational document expressing the will of the people, reached through a democratic agreement, on the nature of the political community they have formed and how that community is to be governed… The central argument of this book has been that up until the 1960s constitutional politics in Canada was basically Burkean, but for a generation – from the late 1960s to the mid-1990s – the prevailing constitutional aspiration in Canada and in Quebec was for a Lockean constitutional moment. That effort failed, for the now obvious reason that in neither Canada nor Quebec was there – or is there – a population capable of acting as a sovereign people in a positive Lockean way.

Russell, Peter. Constitutional Odyssey: Can Canadians Become a Sovereign People? (Third Edition). 2004 (first edition 1992). p. 247-8

HOPE 6 videos

2600 Magazine has just posted an archive with 67 hours of talks originally given at HOPE 6 in 2006. They are available for purchase at DVD quality, of free viewing via YouTube at lower quality.

There is some seriously interesting stuff in here: Basics of Forensic Recovery, Binary Revolution Radio, Exploring Your World with Open Source GIS, GPS, and Google Maps, Keynote Address – Richard Stallman, Urban Exploring: Hacking the Physical World, and a lot more.

Note: many of these videos include bizarre and implausible conspiracy theory ideas.