Document Information

Date: 1978-09
By: British Columbia
Citation: British Columbia, British Columbia’s Constitutional Proposals, Paper No. 5 (Victoria: Queen’s Printer, 1978).
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British Columbia’s
Constitutional Proposals

Paper No. 5

IMPROVED INSTRUMENTS FOR
FEDERAL-PROVINCIAL RELATIONS

Province of
British Columbia

INDEX

INTRODUCTION S 7
SOME HIGHLIGHTS ON THE HISTORY OF FEDERAL-
PROVINCIAL RELATIONS 9
PRESENT PROBLEMS WITH FEDERAL-PROVINCIAL
RELATIONS 11
BRITISH COLUMBIA’S PRESENT AND PROPOSED
INITIATIVES 13
A. Present Initiatives 13
1. The Office of Intergovernmental Relations 13
2. The Western Premiers’ Task Force on Constitutional Trends 13
B. Intergovernmental Organization-—Proposals for Reform 15
1. The First Ministers’ Conference 15
2. Supporting Mechanisms 15
3. The Role of a Reformed Senate 16
CONCLUSIONS 17

“Too often . . . effective consultative
processes have been lacking. A rather neb-
ulous clutter of committees has grown up,
often without consistent objectives or for-
mal organization. There has been little
attention paid to co-ordinating the activities
of the vast network of federal-provincial
meetings and conferences.

“The structure of intergovernmental
liaison which British Columbia proposes
will not increase the bureaucracy of govern-
ments but rather will make existing struc-
tures better and more efficient.”

Introduction

In Canada, the need for intergovernmental co-operation has never
been greater. With the attention of the country focused on the major
problems of the economy and regional alienation, it has become more
obvious that accommodation of regional realities will require improve-
ments in the area of federal-provincial relations.

The Government of British Columbia places great emphasis on the
need to strengthen the process of federal—provincial and interprovincial
consultation and comprise. Although the Province recognizes that many
of the frustrations with intergovernmental relations will not easily be
overcome, it is hoped that advances will be made towards improving
relationships, towards providing greater regional sensitivity, and towards
more effective decision-making.

Because of strong regional tendencies, a diverse and enormous
geography and differences of language and culture, Canada has never
been an easy country to govern. The British North America Act of
1867 divided the responsibilities of governing between the federal and
provincial governments. It was felt that, in principle, the two levels of
government in a federal system could be independent and co-ordinate,
capable of carrying on their assigned responsibilities and exercising their
powers free from direct in?uence or interference by the other. In theory
there would be no need for any continuing intergovemmental interaction,
for joint policy and decision-making, or for the existence of a system
of co-operation and co—ordination.

Perhaps not surprisingly, the Canadian system has not developed in
this manner. Canada has had to come to grips with the problem of
divided jurisdiction, uncertainty over responsibilities and the need for
co-ordinated joint action. No constitutional division of powers can
ever be so precise and clear cut as to avoid all con?icts over jurisdiction.
This factor, in addition to the growing interdependence of governments,
has meant that the development of mechanisms of intergovernmental
consultation has become extremely important to the e?icient working of
the Canadian political system. We must accept the inevitability of
interaction.

There have been many attempts over the years to adaptthe practice
of federalism to the challenges of growing interdependence among gov-
ernments in Canada. Too often changes have been piece-meal and
short-term, with little regard for long-term objectives and priorities.

The result has been that effective consultative processes have been lack-
ing. A rather nebulous clutter of committees has grown up, often with-
out consistent objectives or formal organization. There has been little
attention paid to co-ordinating the activities of the vast network of
federal-provincial meetings and conferences that take place each year.
It is for these reasons, that the Province of British Columbia. has focused
on this important subject as part of the constitutional review process.

Some Highlights on the History of F ederal-Provincial Relations

In the early years after Confederation, the Dominion Government
was the dominant authority. The provinces, lacking direction, ?nancial
resources and often the people to. act, did not seriously challenge the
leadership of the national government. It was expected by most Cana-
dians that the major functions of government would be performed at the
Dominion level and, for a relatively short period of time, they were.

But with the coming of the depression of the mid—1870’s things
changed as the new Dominion felt the burden of its early efforts and
the provinces began to assert themselves as new leaders arose and
political maturity replaced the early euphoria of the new nationhood.
It was in this period that the Judicial Committee of the Privy Council
changed the face of Canadian federalism through a number of decisions
supporting the jurisdiction of the provincial legislatures.

While Canada went through a number of changing phases in the
intervening years, essentially the need for intergovernmental co-ordina-
was limited. Canada was still a relatively small country and the
compartmental concept of distinct authority was still valid.

It was not until the First World War that any discernible trend was
to be found and here the centralization was largely a passing one, neces-
sitated by crisis. In the post-war period of the 1920’s the Dominion
Government undertook few initiatives that intruded on provincial author-
ity. It was probably the experiences of the depression years athat brought
the realization of the inevitability of federal-provincial involvement.

In 1938 the Royal Commission on Dominion-Provincial Relations
recommended more effective intergovernmental organization. However,
events intervened and the strong centralization of public authoirty in the
Second World War and immediate post-war years made any positive
action largely unnecessary.

While Ontario, in particular, made important proposals for some
form of organized interngovernmental liaison at the Reconstruction Con-
ference of 1945-46, it received little support from other Provinces. The
Dominion Government, while accepting the need of consultation, did so
in a reluctant manner and its financial proposals were so highly central-
ized that they gave little encouragement to the co-operative idea.

Although formal steps were not taken at that time to establish institu-
tions of federal-provincial co-operation, post-war developments of joint
programs and the commencement of large-scale equalization payments
in the 1950’s made the growth of intergovernmental involvement inevi-
table. Governments were increasingly called upon to provide massive
social, educational and economic programs in which the provinces had
jurisdictional responsibility and the federal government had the needed
financial resources. Initially the immense revenue generating capacity

at the centre led to administrative co-operation becoming to some extent
an effective device for control and initiative by the federal government.
In addition, policies for new areas of public responsibility such as
aeronautics, environmental control, communications, and the problems
of urbanization, have led to be developed often on a joint basis. With
time, disagreements over jurisdictional responsibilities arose as the
provinces began to press for a greater voice in the implementation of
national policies. At the same time the interdependence of all govern-
ments in Canada increased. More recognition was being given to the
facts that the actions of one government often have an important and
immediate impact on the policies and decisions of another. As the
interdependence has grown so too has the necessity for interaction.

Since World War II, numerous intergovernmental forums have
emerged to meet the need for co-ordination and co-operation in policy-
making. Consultation takes place through ad hoc committees formed to
meet specific needs. Many of these committees have met on a con-
tinuing basis and become more permanent intergovernmental mechan-
isms. For example, the Ministers of Finance and Provincial Treasurers
have met regularly to discuss the general economic and financial outlook.
In addition, they have had a permanent committee of officials, (the
Continuing Committee on Fiscal and Economic Matters), established
in 1959, to exchange information and examine technical problems.
Other more permanent mechanisms have been more recently established;
the Council of Resource and Environment Ministers; the Council of
Ministers of Education; the Council of Provincial Energy Ministers; the
Council of Justice Ministers; and the Annual Premiers Conference.

Many of these permanent mechanisms are supported by subcom-
mittees. However, such co-operative federalism has often resulted in
fragmentation, with little regard for the co-ordinated development of
long-term policies and priorities across a number of policy areas. There
remains very little information flow between these various bodies and
no mechanism for resolving overlap and inconsistency. As well,
permanent mechanisms form a very small part of the total number of
intergovernmental meetings.

In recent years, a shift in federal-provincial relations has taken
place. The provinces have begun to demand increasing input into the
development and implementation of certain national policies and pro-
grams. There have been strong provincial protests against continuing
centralization of economic and social power. Recognition of regional
decisions and priorities has been sought. Joint decision-making, under-
taken in a spirit of equal partnership, is now viewed as necessary. The
First Ministers’ Conference on the Economy in February 1978 was an
important step in this development.

Present Problems With F ederal-Provincial Relations

Intergovernmental consultation has allowed for the resolution of
con?icts and has introduced a certain degree of ?exibility into the system.
There are, however, a number of characteristics of the consultative proc-
ess which hinder effective decision-making and implementation.

While failure to secure understanding and agreement on long-term
goals and priorities has probably been the greatest impediment to effec-
tive co-operation, there have also been more practical constraints. Not
the least of these is the problem of reaching a consensus among eleven
governments of often differing views and interests. In a country as
regionally diverse as Canada it is inevitable that in any process of inter-
governmental consultation, different policy perspectives, regional
opinions and political priorities will arise. The process is one of
negotiation and negotiation is bargaining.

It is necessary to recognize too that governments are engaged in an
ongoing political process and may often be reluctant to contain their
options and initiatives by consultation with others. Quick and decisive
action may be necessary and a government may feel that its leadership
and political credit are often weakened if it must wait for consultation
before taking decisive action on what it considers is in its own best
interests.

One of the most difficult problems that arises in connection with
intergovernmental co-ordination lies in the responsibility of a government
to its legislature or to Parliament. Federal-Provincial Conferences have
sometimes been accused of usurping the rights of Parliament (or the
legislatures).

Another of the inherent weaknesses of the Federal-Provincial con-
sultative process is that decisions reached through such a process are
not of themselves legally binding on governments nor can legal sanctions
be applied if those decisions are not honoured. Undoubtedly the ele-
ment of moral suasion and the desire among persons of goodwill to
honour their commitments are instrumental in keeping decisions reached
from becoming unstuck. However. to the extent that intergovernmental
decisions require the subsequent actions of legislative bodies to imple-
ment those decisions. there is the ever-present possibility that such
bodies may be unwilling to enact precisely the essence of such inter-
governmental decisions or even the reluctance of the government in-
volved to introduce the appropriate implementing legislation lest it be
subject to undue political opposition on the home front. The result
may be the replacing of legislative implementation by executive imple-
mentation without any clearly perceived means of accountability.

While these problems are fundamental to any system of intergovern-
mental activity, there are a number of basic weaknesses more particular
to Canada. One set of difficulties arises from administrative details.
In most cases, the federal government has assumed the responsibility
of calling meetings, deciding on dates, developing agendas, chairing the
proceedings, and initiating follow-up procedures. The provinces have
no means of ensuring that meetings are held as desired. Consultation,
in some cases, has taken place after, rather than before the introduction
of federal legislation to the House of Commons. The federal govern-
ment has not always felt an obligation to consult with the provinces on
policies, which although technically not in an area of concurrent juris-
diction, affect the provinces and their interests. Even when consultation
occurs, no means exist whereby governments are obliged to accept or be
in?uenced by the results of intergovernmental consultation.

After lengthy review the Government of British Columbia has con-
cluded that the basic problems of existing consultative forums are ones
of structure and support. The mechanisms for consultation are available.
In many cases, the opportunity for consultation is available. But, in
many cases, the opportunity for consultation and input are not efficiently
utilized due to the lack of systematic organization and procedures.
Consultative forums have been established in Canada in response to
short—term demands with little concern for co-ordination, systematic pro-
cedures or long—range needs. New problems and issues have tended
to precipitate the formulation of new committees. In this way, the
present system has developed as a series of ad hoc responses with no
formal structure or continuity. While it is recognized that one of the
strengths of the present system has been its adaptability and informality,
some co-ordination of existing mechanisms is necessary. The com-
plexities of modern government in a country like Canada, make more
formal processes a basic necessity of good government.

British Columbia’s Present and Proposed Initiatives

A. Present Initiatives

1. The O?ice of Intergovernmental Relations. The adequacy of
federal-provincial consultation has been a concern of the British Co-
lumbia Government for several years. In 1976 the government
responded in a practical way to the need to improve the whole Process
of intergovernmental relationships through the creation of the Office
of Intergovernmental Relations. This small secretariat, which reports
directly to the Premier, performs several basic functions that monitor
and sensitize the relationships between British Columbia and all other
governments. The Intergovernmental Relations Of?ce is responsible
for ensuring consultation and co-ordination when British Columbia is
dealing with any other government. In particular the office advises
and informs the Premier of:

(a) The state of negotiations when line ministries are consulting
any other levels of government on various policy matters
or issues.

(b) Issues, concerns and positions that should be raised or
taken to various intergovernmental conferences.

(c) Initiatives taken by any other governments that are of in-
terest to British Columbia.

The office provides the over-all framework and structure in which inter-
governmental consultation is to be conducted.

2. Western Premiers’ Task Force on Constitutional Trends. In
April of 1976. at their annual meeting. the Premiers of the four Western
Provinces were concerned over the tendency of the federal government
to legislate in many policy matters that the Premiers considered histori-
cally and constitutionally to be within provincial jurisdiction. Accord-
ingly, on the initiative of Premier Bennett, the Western Premiers
established a Task Force chaired by British Columbia to prepare an
inventory of such federal legislatiye activity.

The ?rst report of the Task Force was received at the Western
Premiers’ Conference held in Brandon, Manitoba on May 5, 1977. The
report was sent to the Prime Minister with a communique which read:

. . . The Premiers have today received and considered
the report which re?ects a high degree of consensus
among all four governments.

The Premiers expressed the hope that the Task Force
Report would contribute toward a lessening of federal-
provincial tensions in areas where, in the provinces’ view,

recent actions by the federal government had created,
or were likely to create undesirable friction . . .

In making the report, the Premiers were of the view that
it would contribute to a more informed understanding
of some very important aspects of federal-provincial
responsibilities. Each of the areas canvassed involved
sensitive and rather complex questions of public policy.
There is a need for the provincial and federal govern-
ments to be aware of and sensitive to each other’s priori-
ties. The Premiers noted that too often in these areas
federal initiatives have either been unilateral or unappre-
ciative of legitimate provincial jurisdiction and interests.
The Report is being sent to the Prime Minister and other
provincial Premiers, on the basis that a constructive
federal-provincial dialogue on these matters can take
place.

As a result of the report, several meetings of officials of the federal
government and the four western provinces took place. Federal responses
and further provincial comments were exchanged. These meetings led
western officials to the preparation of the Second Report of the Western
Premiers’ Task Force on Constitutional Trends for the April 13-14,
1978 Western Premiers’ Conference in Yorkton, Saskatchewan.3 The
Second Report recognized a successful resolution over the year of some of
the outstanding issues but identi?ed another nine new areas of intrusion.

Premier Bennett in his letter to the Prime Minister forwarding the
Second Report made it clear that the reports were aimed at “reducing
some current federal-provincial tensions” by encouraging the estab-
lishment of an “ongoing mechanism to facilitate follow-up discussions
with federal officials . . .” on conflicting constitutional issues. The
Western Premiers were optimistic that the follow-up discussions would
lead to the creation of mechanisms for reducing and eliminating future
real or perceived constitutional con?icts.

In response the federal government advanced a proposal for possible
consultative mechanisms for improving federal-provincial relations with
the western provinces. The basic thrust of the proposed consultative
mechanisms was to sensitize the federal and provincial governments to
each others proposed policies at an early stage of preparation and imple-
mentation. Mechanisms would be established to avoid federal-provincial
problems in the ?rst place and to deal with con?icts if they did occur
and guidelines would also be established to improve federal-provincial
relations.

3 See Second Report of the Western Premiers’ Task Force on Constitutional Trends.

British Columbia believes that the Western Premiers’ Task Force
has been successful in showing in a concrete way the need for improving
the adequacy of federal-provincial consultation. The Reports focus on
speci?c areas where the public interest is not properly served because of
unnecessary administrative duplication, excessive cost, and poor co-
ordination and consultation.

Moreover, it would. appear that the Western Premiers’ Task Force
has been instrumental in having the federal government address these
issues in a broader context through its recently promised proposals re-
garding the duplication of government services.

B. Intergovernmental Organization—Proposals for Reform

In an attempt to oyercome many of the difficulties inherent in the
existing structures of intergovernmental mechanisms the Province of
British Columbia puts forward the following speci?c proposals

Intergovernmental relations may be made more effective through
a greater structuring of the mechanisms to allow for co-ordination of
effort and to avoid the duplication of activities. Set procedures should
be outlined for the scheduling and frequency of discussion including
the formulation of agendas and the selection of conference chairman.
Moreover increased efforts must be made to monitor the outcome of
such discussions and agreements.

1. Conference of First Ministers. Recognizing the importance of
maintaining an effective forum for co-operative policy planning, British
Columbia recommends an annual Conference of First Ministers. It is
recommended that this Conference be scheduled during a speci?ed
period each. year. Its purpose would be two—fold. First it would have
the responsibility of dealing in a broad perspective with current issues
of national importance. Secondly, it would turn attention to long-
range planning and priority-setting in policy areas of mutual concern.
The agenda for these First Ministers’ Conferences should be ratified by
First Ministers based upon the recommendation of a permanent com-
mittee of officials referred to following.

2. Supporting Mechanisms. In order to facilitate planning for and
the follow-up to Conferences of First Ministers, federal and provincial
governments should establish a permanent Federal-Provincial Liaison
Committee on National Policy. Such a committee should be composed
of one senior official designated by the First Minister of each of the
eleven senior governments in Canada. Considerable familiarity with
the broad range of policy issues on the part of each committee member
would serve to increase the effectiveness of this committee. The Com-

mittee would be responsible for setting the agenda for the First Min-
isters’ Conferences; co-ordination of discussions, reports and preparatory
work; the co-ordination of follow-up work and; the monitoring of the
progress between conferences on new developments and implementation.

3. The Role of a Reformed Senate. In Paper No. 3 “Reform of the
Canadian Senate,” the Province of British Columbia proposes a compre-
hensive restructuring of that institution in order to provide a provincial
voice in the national law-making process.

We do not consider that such a body would take the place of estab-
lished federal-provincial consultative procedures. Rather we believe that
the existence of such a provincially oriented body would have the effect of
encouraging consultation and co-operation between governments at the
policy formulation stage to a greater extent than is presently the case.
The Government of Canada would be aware of the powers of the
reformed Senate and would, we believe, thus be more inclined to seek
a.federal’-provincial understanding at an early stage on matters of signi?-
cant federal-provincial import. The experience of the Bundesrat of the
Federal Republic of Germany supports this view.

We do not believe that the activities of the reformed Senate would
abolish the need for First Ministers’ Conferences. The value of these
conferences lies largely in their ability to provide for regional input into
the early stages of the policy-formulation process. This forum also
considers many policy decisions which are basically outside of the legis-
lative process and would thus not be considered by a reformed Senate.
There are also various areas of legislative activity which are undisputably
within federal jurisdiction and yet which have profound impact on the
provinces. In these areas a reformed Senate would have only a limited
role. First Ministers’ Conferences would still address such issues.

Conclusions

Under any -possible division of powers and responsibilities that we
may arrive at in the future, there will continue to be broad areas of
overlap which must be adjusted by negotiation so as to reach some
mutually acceptable approach to matters of joint concern to both levels
of jurisdiction.

We appreciate there is developing a reluctance among many people
to accept further increases in government activity. The structure of
intergovernmental liaison which British Columbia proposes in this paper
will not increase the bureaucracy of governments but rather will make
existing structures better and more efficient.

It is recognized that, even with best of intentions and the will to co-
operate, the adversary relationship which dominates our political life
will not be eliminated. The Government of British Columbia does
believe, however, that a more orderly structure will make the mechanisms
of intergovernmental relations more effective.